# Amicus Curiae Brief — Sloan v. Lemon > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0202%3A13 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1973 - **Citation:** 413 U.S. 825 ## Text 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 v. ALTON J. LEMON, NEAL F. BRACKEN and BENJAMIN S. LOWENSTEIN, Appellees u 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] iv OOR COPY BLEED THROUGH “ 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 12 BLEED THROUGH — 1 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). 2 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}. BLEED THROUGH oi ce nla 3 (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 4 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). BLEED THROUGH en hs en i ee 5S 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. (c) The invalidation of Act No. 92 will strike 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 6 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. BLEED THROUGH ee 7 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. 8 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? BLEED THROUGH 9 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. 10 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 BLEED THROUGH < 1] 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. 12 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. BLEED THROUGH ro =" 13 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 14 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. BLEED THROUGH Poor ComY 15 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). * 16 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, BLEED THROUGH — ee 17 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 18 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.” PY BLEED THROUGH «= POOR COPY 19 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. 20 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. BLEED THROUGH 4 —" 21 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). 22 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. BLEED THROUGH e: or. 23 “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). a) 24 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.” BLEED THROUGH en 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). 26 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. BLEED THROUGH a <, 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. 30 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. BLEED THROUGH i aa Ties dal 31 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). 32 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. POOR COPY BLEED THROUGH 33 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. 34 (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; (c) the parent will be entitled to such assistance, 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. POOR COPY BLEED THROUGH 35 “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. 36 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. POOR COPY BLEED THROUGH 37 “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). 38 * = = 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, BLEED THROUGH r — 39 “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. 40 —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. POOR COPY -—=si Ee ee. SE res Aer Tees 41 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. 42 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. ; POOR COPY nt core LIE ow ice 43 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. 44 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 45 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 |. — 46 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. POOR COPY BLEED THROUGH ° 47 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. 48 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 BLEED THROUGH gi acegeitl 49 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. 50 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). POOR COPY BLEED THROUGH 51 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. : 52 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. BLEED THROUGH i casas