Amicus Curiae Brief — Sloan v. Lemon

TABLE OF CONTENTS

PAGE

IN ME I os sags ccs dzeoeresiesecvasesesnoverisesbe 1

ESSENSE ter ED 5

Questions to Which This Brief Is Addressed ................ 6

Or MUNIN ohh \caliccncocadeocksoesoxsiscsacsnegrsease 7

Argument

Point I—The Act violates the Establishment Clause

of the First Amendment because it has neither

a valid secular purpose nor a primary effect

which does not advance religion ......................... 8

Bic Ee URINE FAT OOIO ooo. ccssnciceeceiscecssneses 11

a i RE 14

Point II—The Act violates the Establishment

Clause because it fosters an excessive govern-

mental entanglement with religion, both ad-

ministrative and political .......00...0000cc 22

Point I1.—Insofar as the Act authorizes the pay-

ment of public funds to private schools that

are racially segregated, it violates the Equal

Protection Clause of the Fourteenth Amend-

© GRE ERE SSIES “AOS SEO ei SOTO: SOR CORE Se gtM OR ey OE 25

A. The private schools which are beneficiaries

of funds under the Act are racially segre-

i oddnis 25

« B. e use of public funds to maintain and

rpetuate racial segregation is prohibited’ 28

Point IV—Appellee Lemon has standing to raise

. -the question of Equal Protection ........................ 34

ia SS RCS RY ARR GAT ee rp ace 36

It

TABLE OF AUTHORITIES

PAGE

Cases:

Abington School District v. Schempp, 374 U.S. 203

(6) REE SRE Gaetan merce ee eee 10, 17, 19

Alexander v. Holmes County Bd. of Ed., 396 U.S. 19

I iin ass oe 29, 35

Almond v. Day, 197 Va. 419, 89 S.E. 2d 851 (1955) 18

Americans United for Separation of Church and State

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

Americans United for Separation of Church and State

v. Paire, 348 F. Supp. 506 (D.N.H. 1972) ........... 17

Baker v. Carr, 369 U:S. 186 (1962) ........... See 34, 35

Barrows v. Jackson, 346 U.S. 249 (1953) 00... 34, 35

Brown v. Board of Education of aopeee, 347 U.S. 483

|: Yeppltheea a wes ta 8 Sg eR Ree inate a 28, 29, 30

Brown v. Board of Education of Topeka, 349 U.S. 294

CN ent a eg 29, 30

Burton v. Wilmington Parking Authority, 365 U.S.

I ok oi psiutins soos wisn alse 32, 33

Bush v. Orleans Parish School Board, 187 F. Supp.

42, 188 F. Supp. 916 (E.D. La. 1960), aff’d, 365

Ti, ee CRD ook artis eee 31

Coffey v. State Educational Finance Commission, 296

F. Supp. 1389 (S.D. Miss. 1969) ...............0..000.5 31

Committee for Public Education and Religious Lib-

erty v. Nyquist, 350 F. Supp. 655 (S.D.N.Y. 1972),

probable jurisdiction noted, 93 8. Ct. 962 (1972)

Cooper v. Aaron, 358 U.S. 1 (1958) 2.000... 29, 30, 31

Earley v. DiCenso, 403 U.S. 602 (1971) ....9, 10, 19, 22, 23, 24

Ethridge v. Rhodes, 268 F. Supp. 83 (S.D. Ohio 1967) 31

Everson v. Board of Education, 330 U.S. 1 (1947) ....8, 10,17

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Flast v. Cohen, 392 U.S. 83 (1968) 0.0.0.0... 35

Gilmore v. City of Montgomery, 337 F. Supp. 22

BN cars essvcsgseasnnnend crnsnneonesranencunssnogansesencersnecsees 31

Green v. County School Board of New Kent County,

Green v. County School Board of New Kent, County,

ess cans cane ssenssesvesnsasacsibnsons 29

Griffin v. School Board of Prince Edward County, 377

icing tevcaes es seseainsnsansorenssinsannns 19, 29

Griffin v. State Board of Education, 239 F.Supp. 560

iio ssmesstnescsegvascrnerescrnscrnscsrneoniene 35

Griggs v. Duke Power Co., 401 U.S. 424 (1971) ....... 33

Hall v. St. Helena Parish School Board, 197 F. Supp.

649 (E.D. La. 1961), aff’d 368 U.S. 515 (1962)... 31

Hartness v. Patterson, 179 S.E. 2d 907 (S. Carolina

oes sesps cattrdncensensnntvcgencsessvenssnnnns 18

Keyes v. School District No. 1, Denver, Colorado, 445

F.2d 990 (1971), cert. granted, 92 S.Ct. 707 (1972) 30

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

EN RIESE arte ree ee oer EE ON 20

Lee v. Macon County Board, 267 F. Supp. 458 (1967),

aff’d sub nom. Wallace v. — States, 389 U.S.

es ERO anne on oS kan each dosanichcnsestaasasss 19

Lemon v. Kurtzman, 403 U.S. 602 (1971) oes 9, 10, 11, 17,

19, 22, 23, 24

Lemon v. Sloan, 340 F. Supp. 1356 (E.D. Pa., 1972) 11

Marbury v. Madison, 1 Cranch 137 (1803) se dane 36

Monroe v. Board of Commissioners of the City of

Jackson, Tenn., 391 U.S. 450 (1968) 0... 29

Opinion of the Justices, 259 N.E. 2d 564 (Mass. Sup.

as) cbcekves csv cvnactasaayiacqesveensths 18

.

PAGE

Poindexter v. Louisiana Financial Assistance Com-

mission, 258 F. Supp. 158 (E.D. La. 1966) ......... 30, 35

Poindexter v. Louisiana Financial Assistance Com-

mission, 275 F. Supp. 833 (E.D. La. 1967), aff’d,

HU. i ED io istcssccscrcadin es acs 30, 31, 32, 34

Poindexter v. Louisianm Financial Assistance Com-

mission, 296 F. Supp. 686 (1968), aff’d 393 U.S.

PR EPI ele shaness ica siiccsinapichindssbaicdnaniony clin 19

Raney v. Board of Edncasion of'the Gould School Dis-

NE, WE. Clie GO CRIN visit ec drigincns ricncucs 29

Reitman v. Mulkey, 387 U.S. 369 (1967) 00.0... 33

Simkins v. Moses H. Cone Memorial Hospital, 323

pg Bl ee 5 ROR teint erat 31

Swann v. Charlotte Mecklenburg Bd. of Ed., 402 U.S.

Be I cecal Laciss cnc a icassa siedckssaamekausiocli each 29

Swart v. South Burlington School District, 122 Vt.

177, 167 A. 2d 514, cert. den. 366 U.S. 925 (1961) 18

Tilton v. Richardson, 403 U.S. 672 (1971) 220000000... 16

Wallace v.,United States, 389 U.S. 215 (1967) ..... Sc a

Walz v. Tax Commission, 397 U.S. 664 (1970) .......... 10

Wolman v. Essex, 342 F. Supp. 399 (S.D. Ohio 1972),

aff'd, mem. 93 S. Ct. 61 (1972) ...00.0000000..... 11, 13, 16, 17,

18, 19, 20, 2+»

Wolman v. Kosydar, Civil Action No. 72-222 (S.D.

I ARRAS 20

Statutes and Executive Orders:

Civil Rights Act of 1964, Title VI (Public Law 88-

MI a eae ta sinch ssn cesar soc acts daa ae 2, 32, 33

Executive Order No. 11063, on equal opportunity in

housing, November 24, 1962, 27 F.R. 11527 ...... a. OO

Executive Order No. 11246, on equal employment op-

portunity, September 24, 1965, 30 F.R. 12319 ...... 32

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Other Authorities:

Dilworth, R., Commonweal, October 7, 1966 ................

Gurash, J. T., The Report of the Archdiocesan Ad-

visory Committee on the Financial Crisis of

Catholic Schools in Philadelphia and Surround-

img Covmbion: 1973 ..........cicscsecsnconeeccentesesesseageesteone

New York State Commission on the Quality and Fi-

nancing of Elementary and Secondary Educa-

dion, FReport ..............:esseceseseecseseeseeseecnenmsenenenesannssssenes

Note, Federal Tax Benefits to Segregated Private

Schools, 68 Colum. L. Rev. 922 (1968) ..................

Orrice or Epucation, U.S. Derr. or Heatru, Epvca-

TION AND WeExFaRE, OI-210111, Statistics on Non-

public Elementary and Secondary Schools, 1965-

cata eereeaaeienn

Office of Research and Evaluation of the School Dis-

trict of Philadelphia, Enrollment: Negro and

Spanish Speaking in the Philadelphia Public

SR SRSE, EARNS a eo meen es og COMPOSE CT erm

Usrrep States Commission on Crvit Ricuts, 1967 Re-

port, Racial Isolation in the Public Schools ........

16

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Supreme Court of the United States

October Term, 1972

Nos. 72-459, 72-620

$$ o

Grace Sxioan, etc.,

Appellant,

and

Diaz, et al.,

Intervenors-A ppellants,

v

Auton J. Lemon, et al.,

Appellees.

On Appeal from the United States District Court

| for the Eastern District of Pennsylvania

—E ee

BRIEF OF AMERICAN JEWISH COMMITTEE, AMERICAN

JEWISH CONGRESS, ANTI-DEFAMATION LEAGUE OF

B’NAI B’RITH, CENTRAL CONFERENCE OF AMERICAN

RABBIS, NATIONAL COUNCIL OF JEWISH WOMEN

AND UNION OF AMERICAN HEBREW CONGREGATIONS,

AMICI CURIAE

This brief amici curiae is submitted with the consent

of the parties.

Statement of the Case

The statute under attack is Act 92 of the Laws of

Pennsylvania, 1971, known as the Parent Reimbursement

Act for Nonpublic Education, 24 P.S. $5701, et seg. (re-

ferred to herein as ‘‘the Act’’). Section 2 of the Act recites

as a ‘‘Legislative Finding’’ and ‘‘Declaration of Policy”

that parents who send their children to nonpublic schools

assist the State in reducing the rising costs of public educa-

tion but that the ‘‘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.’’ Should

nonpublic school parents be forced by economic circum.

stances to transfer their children in substantial number to

nonpublic schools, it is said, an enormous burden would be

placed upon the public schools and upon the taxpayers of

the state. Section 2 then estimates the economic conse.

quences of such transfers and concludes that such costs

would ‘‘be an intolerable public’ burden and present stand-

ards of public education would be seriously jeopardized.”

Therefore, ‘‘to reimburse parents partially for this service

so vitally needed by the Commonwealth, and in order to

foster educational opportunity for all children,’’ the Act

establishes a Parent Reimbursement Fund. The Fund is

to be administered by the Pennsylvania Parent Assistance

Authority consisting of five members naselgie: by the

Governor.

Under the provisions of the Act, beginning July 1, 1971,

23% of the revenues collected under the Pennsylvania

Cigarette Tax Act are to be paid into the State Treasury

to the credit of the Parent Reimbursement Fund. Sums in

the Reimbursement Fund are to be distributed to the par-

ents of any child attending a nonpublic school within the

state which fulfills the compulsory school attendance law

and which meets the requirements of Title VI of the Civil

Rights Act of 1964 (Public Law 88-352). Upon the filing

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of a verified statement by the parent at the end of the

school year, a payment of $75 for each elementary school

child and $150 for each secondary school child is to be made

by the Authority not later than September 15 of the fol-

lowing school year. In the event the tuition paid or con-

tracted to be paid is less than $75 or $150, the lesser sum

is to be repaid.

Appellees, who are citizens, residents and taxpayers in

Pennsylvania purchasing cigarettes in the state (one being

also the parent of a Negro child attending public school),

challenged the Act in the United States District Court for

the Eastern District of Pennsylvania. Appellees’ com-

plaint, filed on September 13, 1971, contended that the Act

on its face and as applied is a law respecting the establish-

ment of religion in violation of the First and Fourteenth

Amendments to the Constitution of the United States in

that it finances religious instruction and worship; has as its

purpose the -advancement of religion; has as its primary

effect the advancement of religion; gives rise to and inten-

sifies political fragmentation and divisivéfiess on religious

lines, and prefers those religions and sects which operate

a parochial school system.

The complaint also alleged with respect to the First and

Fourteenth Amendments that the Act on its. face and as

construed would prohibit the free exercise of religion in

that it constitutes compulsory taxation for the support of

religion and discriminates against and weakens those reli-

gions which do not choose to operate, or cannot afford to

operate, a parochial system of education.

Finally, the complaint alleged that the Act violates the

Equal Protection Clause of the Fourteenth Amendment to

.

the Constitution by PRION and promoting the segre-

gation of the races.

4

The complaint sought the convening of a three-judge

court to declare the Act unconstitutional and enjoin its en-

forcement and a preliminary injunction pending trial of

the issues.

In November 1971, the appellant State Treasurer moved

to dismiss, arguing that the Act was constitutional and that

the complaint failed to show the Establishment Clause and

Free Exercise claims ripe for decision. The appellant also

denied that the Act resulted in discriminatory state action

or invidious classification and asserted that insufficient facts

were alleged to show such a claim ripe for decision, Finally,

the appellant challenged appellees’ standing to sue.

A three-judge court was impanelled. Parents of non-

public school students were permitted to intervene on the

ground that their claims and defenses were distinct from

those of the State Treasurer.

On April 6, 1972, the three-judge court unanimously

denied the motion to dismiss. In its opinion the court con-

cluded that the Act violated the Establishment Clause be-

cause it unconstitutionally aided sectarian schools and sup-

ported religion by aiding parents in providing their chil-

dren with a religious education. Having ruled that the

Establishment Clause precluded state reimbursement of

sums paid as tuition to schools providing religious educa-

tion, the court did not consider the Free Exercise and Equal

Protection claims of the complaint or arguments relating

to standing.

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On May 2, 1972, appellant and parent-intervenors filed

answers to the appellees’ complaint. Appellees then moved

for summary judgment which was granted by the three-

judge court on July 21, 1972 in accordance with its opinion

of April 6.

Interest of the Amici

This brief is submitted in behalf of the following na-

tional Jewish organizations:

American Jewish Committee

American Jewish Congress

Anti-Defamation League of B’nai B’rith

Central Conference of American Rabbis

National Council of Jewish Women

Union of American Hebrew Congregations.

Each of these organizations is concerned with preserva-

tion of the security and constitutional rights of Jews in

America through preservation of the security and consti-

tutional rights of all Americans. They are committed to

the belief that separation of church and state is the surest

guarantee of religious liberty and has proved of inestimable

value both to religion and to the community generally. They

submit this brief because they believe that the program

provided for in the statute under review is a form of aid

to religious institutions, bringing in its train the evils that

the constitutional guarantee of separation of church and

state was designed to prevent.

In addition, these organizations, which have consistently

fought for equal opportunities for all, regardless of race,

¢

—

6

color, creed or national origin, and which have always op.

posed racial segregation in schools, believe that grants of

public funds to private schools as authorized by the Act)

would adversely affect the public schools and thereby stim.

ulate the trend toward racial segregation in the schools of

Pennsylvania, with private schools attended almost excly.

sively by white pupils and the public schools attended by

most of the nonwhite children. The amici view this effect

of the Act as a violation of the Equal Protection Clause of

the Fourteenth Amendment.

Questions to Which This Brief Is Addressed

This brief amici curiae is addressed to the following

questions :

1. Does the Act violate the Establishment Clause of the

First Amendment because it does not have a valid secular

purpose or effect? .

2. Does the Act violate the Establishment Clause be-

cause it fosters an excessive governmental entanglement

with religion?

3. Does the Act, in so far as it authorizes the payment

of public funds to those private schools that are racially

segregated, violate the Equal Protection Clause of the

Fourteenth Amendment?

4. Does the appellee Lemon have standing to raise the

question as to Equal Protection?

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Summary of Argument

L “The Act violates the Establishment Clause of the

First Amendment because it has neither a valid secular

purpose nor an effect which does not advance religion.

A. The court below accepted the legislative findings in

the Act as virtually precluding inquiry into its legislative

purpose. In light of clear evidence that the purpose of

the Act is to keep religious schools in existence as religious

institutions, such blind acceptance of the legislative find-

ings to the contrary has the effect of nullifying the consti-

tutional requirement that legislation assisting religious in-

stitutions have a secular legislative purpose.

B. The tuition payments provided for by the Act con-

stitute an indirect form of governmental aid to nonpublic

schools, most of which are religiously affiliated. They

therefore violate the constitutional prohibition of govern-

mental action which has the effect of advancing religion.

There is no significant difference between the tuition grants

involved here and direct financing of sectarian schools out

of tax-raised funds.

II. The Act violates the Establishment Clause because

it fosters an excessive government entanglement with reli-

gion, both administrative and political. The aid plan em-

bodied in the present Pennsylvania law has the same poten-

tial for political divisiveness along yeligious lines as the

plans previously stricken down by this Gourt. This is par-

ticularly true with respect to the danger of entanglement

of religion and government‘in the political process.

ee

s&s *

III. In so far as the Act authorizes the payment of

public funds to private schools that are racially segregated,

it violates the Equal Protection Clause of the Fourteenth

Amendment.

A. There is ample evidence that the private schools

which are beneficiaries of funds under the Act are racially

segregated.

B. The use of public funds to maintain and perpetuate

such racial: segregation is prohibited. The tuition reim-

bursement formula embodied in the Act constitutes such

an illegal use of public funds.

IV. Appellee Lemon, the father of a black child in a

Pennsylvania public school, has standing to raise the ques-

tion of equal protection.

ARGUMENT

POINT I |

The Act violates the Establishment Clause of the

First Amendment because it has neither a valid secular

purpose nor a primary effect which does not advance

religion.

The precise meaning of the Freedom of Religion and

No-Establishment Clauses of the First Amendment, like

other broad constitutional guarantees, has always been and

_ may always be subject to dispute. Nevertheless, since this

Court’s now classic formulation of the reach of the Estab-

lishment Clause in Everson v. Board of Education, 330 U.S.

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1 (1947), certain tests of constitutional validity have aceu-

mulated under which particular programs must be assayed.

Chief Justice Burger stated in Lemon v. Kurtzman,

Earley v. DiCenso, 403 U.S. 602, 612 (1971) :

In the absence of precisely stated constitutional

prohibitions, we must draw lines with reference to the

three main evils against which the Establishment

Clause was intended to afford protection: ‘‘sponsor-

ship, financial support, and active involvement of the

sovereign in religious activity.’”” Wale v. Tax Com-

mission, 397 U.S. 664, 668 (1970).

Three main tests, the Chief Justice continued, could be

gleaned from prior cases (at 612-13):

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, 88 S. Ct.

1923, 1926, 20 L. Ed. 2d 1060, 1065 (1965) ; finally, the

statute must not foster ‘‘an excessive government en-

tanglement with religion.’’ Walz, supra, at 674, 90 S.

Ct. at 1414, 25 L. Ed. 2d at 704.

In Lemon-DiCenso, this Court invalidated, on the ground

of excessive ‘‘entanglement,’’ statutes in Pennsylvania and

Rhode Island providing for use of state funds to pay for

earefully defined secular aspects of the operations of reli-

giously affiliated schools. The two Acts, with their elabo-

rate provisions for state supervision to insure that the

money was not used for sectarian purposes, had quite obvi-

ously been designed on the assumption that transfer of

public funds to such schools, directly or indirectly, was

barred by the Establishment Clause. This was true either

under the oft-repeated interpretation of that Clause in

10

Everson v. Board of Education, 330 U. S.-1, 16 (1947)

that ‘‘no tax in any amount, large or small, can be levied

to support any religious activities or institutions,’’ or under

the more recent statement in Walz v. Tax Commission, 397

U. S. 664, 668 (1970) barring ‘‘financial support’? of reli.

gious activity.

In Lenion, this Court found that the provisions in the

two statutes designed to avoid the appearance of ‘‘financial

- support’ of religious activities had created undue entangle.

ment which rendered the statutes invalid. The present

Pennsylvania statute, like others enacted since Lemon, at-

tempted to avoid the strictures of that opinion by giving

financial assistance to the schools, via parents and children,

on the theory that the entanglement hurdle was the only

obstacle to validation. We submit that this attempt cannot

succeed. The new Pennsylvania law, by limiting adminis-

trative entanglement, has provided for the simple, though

indirect, transfer of state funds to religiously affiliated

schools, with no restraints on their being used for religious

purposes. Such a transfer must necessarily have both a

religious purpose and a religious effect and must therefore

violate two of the tests laid down in Abington School Dis-

trict v. Schempp, 374 U. S. 203 (1963) and reaffirmed in

Walz and Lemon-DiCenso, supra.

In a number of recent lower court decisions, it has been

pointed out that there is no way around the dilemma cre-

ated by the purpose and effect and the entanglement tests

since the less the state attempts to restrict and control

public funds to escape the entanglement prong, the greater

the likelihood that the state supplied funds will be used

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for religious as well as secular purposes. See, e.g., Wolman

y, Essex, 342 F. Supp. 399, 414 (S.D. Ohio 1972), aff’d, mem.

93 S. Ct. 61. (1972) ; Americans United for Separation of

Church and State v. Oakey, 339 F. Supp. 545, 549-50 (D.

Vt. 1972)..

There is nothing surprising about this. It is merely a

reflection of the fact, taken for granted until quite recently,

that the Constitution bars government from resorting to

any device to use its resources to finance religious institu-

tions.

A. The Sectarian Purpose

In the case at bar, the court below concluded that the

Act expressed a ‘‘legitimate secular objective consistent

with the Establishment Clause,’’ basing its conclusion upon

the stated legislative purpose of the Act: to aid parents

to continue to send their children to nonpublic schools,

thereby fostering educational opportunities for both pub-

lic and nonpublic schools. Lemon v. Sloan, et al., 340 F.

Supp. 1356, 1360 (E.D. Pa., 1972). The court also took

note of legislative findings expressed by the General As-

sembly and its declaration of policy that present standards

of public education would be seriously jeopardized if par-

ents of nonpublic school children could no longer afford

tuition costs and were forced to send their children to pub-

lic schools. The court then accorded this stated legislative

intent ‘‘appropriate deference’’ and declared that the Act

passed the first test of a ‘‘secular pucpose.’’

We note also that this Court in Lemon v. Kurtzman,

supra, accorded similar deference to the stated legislative

“A

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12

intent of the Acts there considered, although they were

nevertheless invalidated on other grounds. In discussing

the secular legislative purpose test, the court said it had

no reason to believe that the Pennsylvania and Rhode Is.

land Legislatures meant anything other than they said, .

and that nothing before the Court undermined those stated

legislative intents (403 U.S. at 613). :

We submit, nevertheless, that, notwithstanding tradi-

tional deference to the legislatures, it would be naive to

unquestionably accept as the purpose of any Act whatever

language the draftsmen put in the preamble. To decline

even to consider piercing the veil of a state’s legislative

intent is to permit subversion of the Constitution through

the recitation of a formula preamble or statement of pur-

pose.

a

It can hardly be denied that the Pennsylvania Legisla-

ture, in enacting the Pennsylvania Reimbursement Act for

Nonpublic Education, was concerned not with standards

of public education, but with the continued existence of the

parochial schools of that state. We have been repeatedly

told that parochial schools everywhere are in financial dif-

ficulties. We know that legislation has been enacted in

numerous states for the very purpose of preserving these

schools. It should not be necessary to review the impas-

sioned pleas of parents and school officials, particularly

as reported in the press, urging that aid be given so that

church-related schools may remain financially viable. The

plea is for the church-related schools, which are felt by

those pressing for government aid to be the cornerstone

of their church’s mission. If the public schools are men-

tioned at all in these pleas, it is only in warnings that, if

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public aid is not forthcoming, the public schools will be

inundated by students from private institutions forced to

close their doors. This threat, we submit, is speculative,

Its validity has not yet been demonstrated in any state.

We submit that the court below erroneously passed

over the question whether the Act does indeed have a secu-

lar purpose. More broadly, we suggest that this Court

spell out more clearly the meaning of the ‘‘secular pur-

pose” test, lest it become deadletter. The lower courts

appear to be treating it as such.

Thus, in Wolman v. Essex, supra, a three-judge court

held (342 F. Supp. at 411) that Ohio’s Parental Reimburse-

ment statute satisfied the secular purpose test because non-

public schools perform in substantial part a strictly secu-

lar function. The state was also said to have a legitimate

concern in requiring minimum standards in all of its

schools and the Ohio statute was passed with the express

purpose of helping nonpublic schools maintain these stand-

ards. The court then commented, in footnote 13 (at 411),

that, in its opinion, ‘‘the first prong of the Lemon test will

almost invariably be satisfied in cases of this type and may

not truly exist as a distinct, dispositive requirement.’’

Similarly, in Committee for Public Education and Reli-

gious Liberty (PEARL) v. Nyquist, 350 F. Supp. 655, 660

(S.D.N.Y. 1972), probable jurisdiction noted, 93 S. Ct. 962

(1972), District Judge Gurfein, writing for the majority,

stated: ‘‘In sum, we do not go behind the statements of

the New York Legislature, although it is manifest that,

regardless of the variety of secular arguments advanced to

14

support the legislation, the prime legislative concern is to

.8ee that religious parochial schools do not go under for

lack of financial support.’’ (Emphasis added.)

We submit that the ‘‘purpose’’ test laid down by this

Court should not be treated so cavalierly and that, where

a ‘‘prime legislative concern’’ to preserve religious schools

through the use of government resources is clear, it should

not be ignored merely on the basis of pro forma recitations

in legislative findings. Moreover, while a state surely has

a legitimate concern in requiring minimum standards in

all schools, it is not the business of the state, we submit, to

provide public funds to enable schools established for reli-

gious purposes to maintain such standards. To allow the

state to do this would deprive the ‘‘secular purpose’’ test

of meaning. -

B. The Sectarian Effect |

The court below struck down the Act under the second

prong of the Lemon test. It concluded that the effect of

the Act was to aid religious schools and that the failure

of the state to insure that funds were restricted to secular

education or general welfare services rendered the Act

unconstitutional (at 1364). It observed that the legisla-

tive findings and declaration of policy acknowledged that

this type of aid would have the effect of enabling nonpublic

schools, including church-related schools, to continue to

operate (at 1363), even though it failed to hold that this

was the purpose of the Act.

Nevertheless, the language of the opinion below lends

credibility and support to our argument above concerning

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purpose. In the portion of its opinion considering the

effect of the Act (at 1364), the court stated:

If parents cannot afford to pay the tuition, they

must take their child out of the nonpublic schools and

if enough parents are unable to pay these costs, the

schools will be forced to close. It was precisely this

possibility that led the Pennsylvania General Assem-

bly to pass the Act under review. By providing par-

ents with additional funds because they have paid tui-

tion at nonpublic schools, the Commonwealth is trying

to insure the continued ability of the parents to afford

tuition costs and therefore the continued existence of

nonpublic schools, including sectarian schools.

Be that as it may, the opinion below concluded, first,

that sectarian schools would be aided by state funds under

the Act and, second, that the Act also unconstitutionally

supported religion because it aided parents in providing a

religious education for their children. We submit that

both of these analyses are correct.

It is beyond dispute that tuition reimbursement will

facilitate and promote the enrollment of children at church-

related schools, schools which constitute an integral part

of the religious mission of the sponsoring churches. It was

argued below by appellants that, in the absence of earmark-

ing, one could not ascertain that payments under the Act

would encourage such enrollment. The lower court quite

rightly rejected that contention, saying (at 1364):

It is clear that a possible and quite likely use of the

aid under review is to enable parents to continue to

pay tuition at sectarian schools. Tuition payments

support both religious and secular education at these

schools. The mere fact that the Act does not require

16

that parents use the funds to pay tuition at church-re-

lated schools does not relieve the state of its duty to

preclude the use of its funds to support religious ac.

tivities.

This statement was bottomed on the conclusion of this

Court in Tilton v. Richardson, 403 U.S. 672, 682-84 (1971),

that a government aid program can be invalidated on the

basis of a significant risk that the aid may serve to sup-

port religious activity at some future time.

Wolman v. Essex, supra, which should be dispositive

of the instant case, declared (342 F. Supp at 416) that:

The state cannot claim it does not know what the

parents will do with their grants, for the expressed in-

tent of the statute is to ‘‘reimburse parents of non-

public school children for a portion of the financial

burden experienced by them’’ in sending their children

to parochial schools. It does not matter that the par-

ents are subsequently free to use the money received

for any-purpose. The intent of the statute in provid-

ing the reimbursement must speak for itself. (Cita-

tions omitted.)

The Wolman opinion noted that, during the 1970-71

school year, 98% of the students attending nonpublic

schools in Ohio attended denominational schools and that

approximately 95% attended Catholic schools. Similarly,

the Report of the New York State Commission on the

Quality and Financing of Elementary and Secondary Edu-

cation disclosed that 93% of private school students attend

religious schools. In Pennsylvania, 96.6% of private school

pupils attend church-affiliated schools.' It is a matter of

1. Statistics on Nonpublic Elementary and Secondary Schools,

1965-1966, Office of Education, U.S. Dept. of Health, Education and

Welfare, OI-210111.

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17

public cognizance that of students attending church-affili-

ated schools, in state after state, one organized religious

group is the predominant beneficiary of all parochiaid leg-

islation. (See also Americans United for Separation of

Church and State v. Paire, 348 F. Supp. 506, 509-10

(D.N.H. 1972)).

The lower court in Wolman, which invalidated Ohio’s

tuition reimbursement statute, thought that the second

prong of the Lemon test, the principal or primary effect

of the statute, was really a restatement .of the neutrality

test, first discussed in Everson, supra, and later reformu-

lated in Abington School District v. Schempp, 374 U.S. 203

(1963). ‘‘One method of gauging neutrality, in terms of

_ the Religion Clauses,’’ said the Wolman opinion, ‘‘is to

observe the class to which it is directed and that will be

affected by it.’’ Although the court did not base its hold-

ing entirely upon the second prong of the Lemon test, it

observed that (at 412):

In all the cases in which the Court has upheld legis-~

lation attacked on Establishment Clause grounds, the

affected class has been substantially broader than the

class affected by the Ohio statute. * * * In each of these

cases religiously affiliated institutions were among a

broad class of beneficiaries deriving benefits of a gen-

eral, broad-based, public policy. These cases are truly

analogous to situations in which the state provides po-

lice and fire protection generally to all people and

property, within its jurisdiction, regardless of reli-

gious affiliation.

y

Thus, the breadth of the class to be benefited is of over-

riding importance.

18

In the case at bar, the lower court took care to stress

that it could perceive no constitutional difference in whether

payments were made directly to the church-related school,

indirectly using parents as a conduit, or in the form of

reimbursement to parents with dollars that need not nee.

essarily be used at the educational institution. For, said

the court with careful logic (at 1365) :

The economic consequences are the same for the

church-related school whether it receives funds through

a direct grant, a conduit plan or because the state in-

creases family incomes through a reimbursement pro-

gram which enables the parents to continue to pay tui-

tion. In each case, tax-raised funds are being used to

subsidize religious education.

There is ample precedent for this reasoning. In fact,

state courts have inyariably invalidated tuition grant plans

in which public funds were to be paid to parents. See Al-

mond v. Day, 197 Va. 419, 89 8.E. 2d 851 (1955) ; Hartness

v. Patterson, 179 S.E. 2d 907 (S. Carolina 1971) ; Swart v.

South Burlington School District, 122 Vt. 177, 167 A. 2d

514, cert. den. 366 U.S. 925 (1961) ; Opinion of the Justices,

259 N.E. 2d 564 (Mass. Sup. Jud. Ct., 1970). Similarly,

the three-judge court in Wolman, supra, whose holding was

affirmed by an 8 to 1 vote of this Court, stated (342 F. Supp.

at 415):

Payment to the parent for transmittal to the de-

nominational school does not have a cleansing effect

and somehow cause the funds to lose their identity as

public funds. While the ingenuity of man is appar-

ently limitless, the Court had held with unvarying

regularity that one may not do by indirection what is

forbidden directly; one may not by form alone con-

tradict the substance.

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19

“(The Wolman opinion then went on to recall that a

variant of the indirection principle was attempted in cer-

tain Southern states where monetary grants were made to

parents or students for use at so-called ‘‘private schools.’’

These attempts to avoid the constitutional obligation to

desegregate the public schools of these states were uni-

formly disallowed. See, e.g., Griffin v. School Board of

Prince Edward County, 377 U.S. 218 (1964) ; Lee v. Macon

County Board, 267 F. Supp. 458 (1967), aff’d sub nom.

Wallace v. United States, 389 U.S. 215 (1967); Poindexter

v. Louisiana Financial Assistance Commission, 296 F.

Supp. 686 (1968), aff’d 393 U.S. 17 (1968). Although these

decisions rejecting tuition grants arose under the Equal

Protection Clause, rather than the Establishment Clause

or its state equivalents, the principle is analogous. As Jus-

tice Douglas noted in Abington, supra, 374 U.S. at 230,

‘‘(I]t is the use to which public funds are put and not to

whom they are provided that is controlling.’’)

The Wolman opinion concluded (342 F. Supp. at 417)

that, ‘‘Since the potential ultimate effect of the scheme is

to aid religious enterprises, the Establishment Clause for-

bids its implementation regardless of the form adopted in

the statute for achieving that purpose.’’ That is precisely

the point we wish to emphasize.

It is clear from Lemon-DiCenso that payments of pub-

lic funds may not be made directly to religious schools, and

no one would now argue the constitutional validity of di-

rect money grants to such institutions. Nevertheless, it is

argued that the strictures of Lemon-DiCenso may be

avoided either if sums are paid to parents functioning as

20

conduits or channels to the religious schools, or if sums are

paid to parents in reimbursement for tuition paid without

any requirement that they actually be used for payment’

of tuition.

_ We submit, however, that Wolman stands for the com-

mon-sense proposition that it is irrelevant what method

the state uses to advance religious enterprises, when the

economic consequences are the same for all concerned. This

point was also made by Judge Hays in PEARL v. Nyquist,

supra, dissenting opinion, at 675, when he said:

There is no essential difference between a parent’s

receiving a $50 reimbursement for tuition paid to a

parochial school and his receiving a $50 benefit because

he sends his child to a parochial school. In both in-

stances the money involved represents a charge made

upon the state for the purpose of religious education.

{Emphasis in original.]

It is also important to remark upon the unanimous hold-

ing of the three-judge Federal District Court in Ohio which

had before it a tax credit plan for nonpublic school parents

following Wolman’s invalidation of the parental reim-

bursement statute. In the Ohio tax credit case, entitled

Kosydar v. Wolmam, Civil Action No. 72-212 and Wolman

v. Kosydar, Civil Action No. 72-222, the court reaffirmed

the Wolman holding that direct monetary grants to the par-

ents of nonpublic school children violate the First Amend-

ment, and then proceeded to a consideration of whether

the state may nevertheless, through its taxing machinery,

confer benefits by way of tax credits upon a class of per-

sons composed of nonpublic school parents and an addi-

tional minor segment of the public school population. (In re-

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21

sponse to language in the Wolman opinion, an attempt was

made to broaden the class of recipients for aid under the

new tax credit legislation. These recipients included per-

sons enrolled in home instruction programs, in public adult

high school continuation programs and in schools for tu-

bercular persons; persons enrolled in vocational and basic

literacy programs; persons paying non-resident public

school tuition payments; and students enrolled in public

or private programs for the deaf, blind, crippled, emo-

tionally disturbed, neurologically handicapped or mentally

retarded. However, the benefited class, as the court noted,

was nonetheless of a predominantly sectarian character.)

Again, for the reasons outlined in Wolmam, the court held

the tax credit statute unconstitutional.

Said the court (at 25, Slip Opinion) :

It simply defies reason to say that such a statute

does not aid sectarian schools, Such aid may be less

direct and less capable of precise measurement than a

grant to the schools themselves; yet, if some parents

will now be able to send their children to these schools

or if fewer parents already utilizing them will be forced

to withdraw their children, they will be aided.

We hold that where, as here, the recipient of state

conferred benefits is a predominantly sectarian class

of schools and therefore as a matter of law the primary

effect of such benefits is to advance religion, then the

form of these benefits, whether by tax credits, exemp-

tions or deduction, cannot alone insulate them from

First Amendment infirmity. * * * The exaltation of

form over substance no longer has any place in our

jurisdiction. (Citations omitted.)

22

POINT II

The Act violates the Establishment Clause because

it fosters an excessive governmental entanglement with

religion, both administrative and political.

In Lemon-DiCenso, supra, this Court invalidated Penn-

sylvania and Rhode Island Acts because the ‘‘cumulative

impact of the entire relationship arising under the statutes

in each State involves excessive entanglement between gov-

ernment and religion’’ (at 614). Having so concluded, this

Court found it unnecessary to decide whether legislative

precautions under each Act restricted the primary effect

of the programs to the point where they did not offend the

Religion Clauses.

Entanglement was found in Lemon in part, but only in

part, because of the close government supervision of church

schools required by the Pennsylvania and Rhode Island

statutes. Equally important were other considerations

which apply with equal force here. Thus, this Court

referred not only to the administrative entanglement aspect

but also to entanglement of religion and government in the

political process. It said (at 622-3) :

* * * In a community where such a large number of

pupils are served by church-related schools, it can be

assumed that state assistance will entail considerable

political activity. Partisans of parochial schools, un-

derstandably concerned with rising costs and sincerely

dedicated to both the religious and secular educational

missions of their schools, will inevitably champion this

cause and promote political action to achieve their

goals. Those who oppose state aid, whether for con-

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—

23

stitutional, religious, or fiscal reasons, will inevitably

respond and employ all of the usual political campaign

techniques to prevail. Candidates will be forced to

declare and voters to choose. It would be unrealistic

to ignore the fact that many people confronted with

issues of this kind will find their votes aligned with

their faith.

Ordinarily political debate and division, however

vigorous or even partisan, are normal and healthy

_manifesiations of our democratic system of govern-

ment, but political division along religious lines was

one of the principal evils against which the First

Amendment was intended to protect. Freund, Com-

ment, Public Aid to Parochial Schools, 82 Harv. L.

Rev. 1680, 1692 (1969). The potential divisiveness

of such conflict is a threat to the normal political proc-

ess. Walz v. Tax Commission, supra, at 695, 90 S. Ct.,

at 1424 (separate opinion of Harlan, J.). See also

Board of Education v. Allen, 392 U.S., at 249, 88 S. Ct.,

at 1929 (Harlan, J., concurring); Abington School

District v. Schempp, 374 U.S. 203, 307, 83 S. Ct. 1560,

1616, 10 L. Ed. 2d 844 (1963) (Goldberg, J., con-

curring). To have States or communities divide on

the issues presented by state aid to parochial schools

would tend to confuse and obscure other issues of great

urgency. * * *

The present Pennsylvania plan for aiding sectarian

schools is just as productive of ‘‘political division along re-

ligious lines’’ as the one condemned in Lemon. Whatever

form government aid to church schools may take—salary

supplement plans as in DiCenso, tuition reimbursement as

in this case, or tax credits as in other cases now before this

Court—the level and even the existence of the state support

will be a public issue at every election and during each

legislative session. This can be prevented only if it is made

24

clear that the Constitution bars all forms of government

aid to religiously affiliated schools.

Certainly, there is no reason to believe that enactment of

any one bill will eliminate the issue from the public sphere,

There will always be pressure to raise or to lewer the

amount of the reimbursement allowance, the tax credit or

whatever form of allotment may be devised.

This has already been illustrated in Pennsylvania. In

1971, the state legislature provided that 23% of the rev-

enues collected under the Pennsylvania Cigarette Tax Act

should be paid into the State Treasury to the credit of the

Parent Reimbursement Fund beginning in July 1971. The

1972 legislature amended the Act to provide that 10% of

such revenues collected be paid into the Parent Reimburse-

ment Fund. However, the original bill introduced that year

(H.B. 2150) proposed that 5% of the revenues collected be

credited to the the Reimbursement Fund. Obviously,

neither 23%, 10% nor 5% is a fixed, immutable figure. It is

conceivable, even likely, that upward revisions will be neces-

sitated by inflationary pressures. But even without in-

flation advocates of state aid are bound to seek constant

raising of the level of aid until they reach their candidly

stated goal of ‘‘parity,’’ under which the state would spend

the same amount for secular education of each child in non-

public schools as it spends on each public school child.

Surely, as this Court pointed out in Lemon-DiCenso, these

are the very evils the First Amendment sought to avoid.

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POINT III

_—

Insofar as the Act authorizes the payment of public

funds to private schools that are racially segregated, it

violates the Equal Protection Clause of the Fourteenth

Amendment.

A. The private schools which are beneficiaries of

funds under the Act are racially segregated.

The allegations contained in the complaint, which must

be taken as true in this phase of the case, include the follow-

ing in paragraph 11:

The Act on its face and as construed and applied by the

defendant authorizes and directs payments for the

tuition of students in educational institutions which by

purpose or effect segregate students by race, thereby

perpetuating and promoting the segregation of races

and two separate school systems in Pennsylvania—a

public school system predominantly black, poor and in-

ferior and a private subsidized school system predom-

inantly white, affluent and superior.

There is ample reason for believing that these allega-

tions can be substantiated on trial. Available evidence

shows that the non-church-related schools in Pennsylvania

and the non-Catholic church-related schools were all vir-

tually 100-per-cent white. The Catholic parochial school

system, while it contains a substantial proportion of black

students, is nevertheless largely segregated.

The periodical, Commonweal, in its October 7, 1966

issue, quoted the following statement of Richardson Dil-

26

worth, former Mayor and former School Board President

in Philadelphia (p. 13):

Today, in our city, 40 per cent of the total school popu-

lation is in parochial and private schools. The result

is that while only 30 per cent of our city’s population

is non-white, 57 per cent of our public school pupils are

non-white. And, today, there are more white children

in parochial and private schools than there are in our

city’s entire public school system.

The following facts are set forth in the 1967 Report of the

United States Commission on Civil Rights entitled ‘‘ Racial

Isolation in the Public Schools’’ (p. 31):

Private and parochial school enrollment, which is over-

whelmingly white, also is a significant factor in the

increasing separation of white and Negro school chil-

dren.

* * *

In 1960, of the more than four million pupils enrolled in

non-public elementary schools in the United States,

only 140,529 were non-white. 44,308 non-whites were

attending non-public secondary schools which had a

total enrollment of more than one million.

The Report says further (pp. 38-39) :

Private and parochial school enrollment also is an

important factor in the increasing concentration of

Negroes in city school systems. Non-public school en-

rollment constitutes a major segment of the nation’s

elementary and secondary school population. Na-

tionally, about one-sixth of the total 1960 school enroll-

ment (Grades 1-12) was in private schools. In metro-

politan areas the proportion is slightly higher, and

divided unevenly between city and suburb. Nearly one-

third more elementary school students in the cities at-

27

?

tend nonpublic schools than in the suburbs. Almost

all of them are white. In the larger metropolitan areas

the trend is even more pronounced. * * * [A] much

higher proportion of white city students than white

suburban students attend private and parochial ele-

mentary schools. Nonwhites in these metropolitan

areas, whether in cities or suburbs, attend public

schools almost exclusively.

A table, following this statement, shows the following pro-

portion of total elementary students, by race, in public and

nonpublic schools, for 15 metropolitan areas in 1960 (p. 39) :

Central Cities White Nonwhite

Public Schools 61% 94%

Nonpublic Schools 39% 6%

Suburbs White Nonwhite

Public Schools 75% 97 %

Nonpublic Schools 25% 3%

Since the issuance of the Civil Rights Commission Re-

port more recent figures for Philadelphia have become

available.

In the city of Philadelphia proper in January 1971,

63.6% of the total enrollment in public schools was non-

white (including Spanish-speaking). This contrasts

sharply with the situation in the Catholic parochial schools

in the Archdiocese of Philadelphia which includes four

adjacent counties. There, in September 1971, only 8.4%

of the elementary students and 5.1% of the secondary stu-

dents were nonwhite (including Spanish-speaking)?

2. Excluded from these figures is the relatively small number of

non-Catholics attending Catholic parochial is pup because their ra-

cial breakdown is not given. (Non-Catholi

and .3% respectively, of the pupils attendi

and secondary schools).

pupils comprised 2.1%

Catholic elementary

28

These figures are derived from ‘‘Enrollment: Negro

and Spanish Speaking in the Philadelphia Public Schools—

1970-71’’ by the Office of Research and Evaluation of the

School District of Philadelphia and from ‘‘The Report

of the Archdiocesan Advisory Committee on the Financial

Crisis of Catholic Schools in Philadelphia and Surrounding

Counties’? by John T. Gurash, Chairman of the Committee,

1972.

The foregoing figures illustrate, as to both Pennsylvania

and the United States generally, that enrollment of black

children in private schoolss very low and far below the

ratio of blacks in the total population.

The result, of course, is that the percentage of white

children in public schools is considerably | lower than it

should be on the basis of the white-black ratio in the popula-

tion. Many public schools, even in racially mixed neighbor-

hoods, are becoming Negro schools because of the movement

of white children to private schools. This leads, in effect,

to a dual system of schools—the public schools attended

predominantly by blacks and the private schools, mainly

parochial schools, attended predominantly by whites.

B. The use of public funds to maintain and

perpetuate racial segregation is prohibited.

In Brown v. Board of Education of Topeka, 347 U.S. 483

(1954), this Court declared racial segregation in public edu-

cation to be a denial of the equal protection guaranteed by

-the Fourteenth Amendment. It held unconstitutional the

dual system under which whites and Negroes were required

“to attend different schools in a number of Southern states.

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29

A year later, in its implementing order, this Court required

public school boards to abolish such dual school systems

and to effectuate the transition to racially non-discrimina-

tory school systems. 349 U.S. 294, at 301 (1955). In sub-

sequent decisions, this Court reaffirmed its decisions in

Brown I and Brown II and made it clear that the time has

run out for efforts to delay school integration. Cooper v.

Aaron, 358 U.S. 1 (1958) ; Griffin v. County School Board of

Prince Edward County, 377 U.S. 218 (1964); Green v.

County School Board of New Kent County, 391 U.S. 430

(1968) ; Raney v. Board of Education of the Gould School

District, 391 U.S. 443 (1968) ; Monroe v. Board of Commis-

sioners of the City of Jackson, Tenm., 391 U.S. 450 (1968) ;

Alexander v. Holmes County Bd. of Ed., 396 U.S. 19 (1969) ;

Swann v. Charlotte Mecklenburg Bd. of Ed., 402 U.S. 1

(1971).

In Brown I, this Court based its conclusion that the dual

system is unconstitutional on the discrimination which is

inherent in a separation of pupils by race. The Court said

(374 U.S. at 494):

To separate them [Negro pupils] from others of simi-

lar age and qualifications solely because of their race

generates a feeling of inferiority as to their status in

the community that may affect their hearts and minds

in a way unlikely to be undone.

This Court has not yet decided the question whether

a school system which does not require whites and blacks

to attend different schools but where, as a result of a seg-

regated residential pattern, white and black pupils to a

large extent attend different schools, amounts to a dual

30

system which is in conflict with the Equal Protection Clause

of the Fourteenth Amendment as interpreted in Brown I

and II. This problem of so-called ‘‘de facto’’ segrega-

tion is one of the issues in Keyes v. School District No. 1,

Denver, Colorado, 445 F.2d 990 (1971), which is now before

this Court. Cert. granted, 92 S.Ct. 707 (1972).

However, plaintiffs in this action do not attack the pat-

tern of segregation which results from the operation of pri-

vate schools, per se. The thrust of their complaint is di-

rected against the state which, by providing financial aid

to parents sending their children to private schools and

thus helping to maintain and perpetuate the pattern of

segregation resulting from the existence of these schools,

engages in discriminatory state action.

There is no question that the authorized payment of

public monies is state action. Cooper v. Aaron, 358 U.S.

1, 19 (1958) ; Poindexter v. Louisiana Financial Assistance

Commission, 258 F. Supp. 158, 162 (E.D. La. 1966) ; Poin-

dexter v. Louisiana Financial Assistance Commission, 275

F. Supp. 833, 854 (E.D. La. 1967), aff’d, 389 U.S. 571

(1968). Green v. Connally, 330 F. Supp. 1150, 1164 (1971).

In fact, it is hard to imagine any action which can be at-

tributed to the state more closely and intimately than the

authorized payment of state funds. The crucial question

then is whether payment of state funds to reimburse par-

ents for payment of tuition to private, including parochial,

schools under the Act is discriminatory state action.

There is ample authority for the proposition that public

aid to private schools or to pupils attending private schools

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31

which serves to support racially segregated education con-

stitutes denial of equal protection in violation of the Four-

teenth Amendment. This Court said in Cooper v. Aaron,

supra (358 U.S. at 19):

State support of segregated schools through any ar-

rangement, management, funds or property cannot be

squared with the [Fourteenth] Amendment’s command

that no State shall deny to any person within its juris-

diction the equal protection of the laws.

Repeatedly, Federal courts have struck down on the

same ground state plans to provide for tuition grants for

students attending private schools. Bush v. Orleans Parish

School Board, 187 F.. Supp. 42, 188 F. Supp. 916 (E.D. La.

1960), aff’d, 365 U.S. 569 (1961) ; Hall v. St. Helena Parish

School Board, 197 F. Supp. 649 (E.D. La. 1961), aff’d, 368

US. 515 (1962); Poindexter II, supra, 275 F. Supp. 833;

Coffey v. State Education Finance Commission, 296 F.

Supp. 1389 (S.D. Miss. 1969); Gilmore v. City of Mont-

gomery, 337 F. Supp. 22 (1972). ,

The principle that the use of public fands to support

activities by private persons or groups which involve racial

discrimination denies equal protection is applied also in

fields other than education. See, e.g., Simkins v. Moses H.

Cone Memorial Hospital, 323 F.2d 951 (4th Sir. 1963) ;? Eth-

3. In Simkins, Negro physicians complained that government

funds were given to two hospitals which discriminated against them

because of their race. -They did not seek an injunction against public

support of discrimination or segregation, but an injunction against the

discriminatory conduct of the recipients of the funds. In the present

case, in contrast, plaintiffs do not seek an injunction against discrimi-

natory conduct of the schools, but an injunction against state support

of discrimination. Either remedy is: suitable to eliminate a violation

of the Fourteenth Amendment prohibition of using public funds to

maintain racial discrimination and segregation.

=

32

ridge v. Rhodes, 268 F. Supp. 83 (S.D. Ohio 1967). And

see Executive Order No. 11246, September 24, 1965, 30 F.R. |

12319, on equal employment opportunity, and Executive

Order No. 11063, November 24, 1962, 27 F.R. 11527, on equal

opportunity in housing. See also Section 601 of the Civil

Rights Act of 1964 prohibiting racial discrimination under

any program or activity receiving Federal financial assist-

ance. 42 U.S.C. 2000d.

In some of the cases cited above, courts found that

grants of public funds were made for the purpose of evad-

ing desegregation of public schools and perpetuating racial

segregation. But such a discriminatory purpose is not a

prerequisite for holding that a grant aiding an educational

institution directly or indirectly is in violation of the Equal

Protection Clause. All that is required is that the grant

has the effect of maintaining, promoting or perpetuating

segregation. :

In Burton v: Wilmington Parking Authority, 365 U.S.

715, 725 (1961), this Court said:

** * no State may effectively abdicate its responsibil-

ities by either ignoring them or by merely failing to

discharge them whatever the motive may be. It is of

no consolation to an individual denied the protection of

the laws that it was done in good faith. Certainly the

conclusions drawn in similar cases by the various

Courts of Appeals do not depend on such a distinction.

And see cases there cited (Id. at 725, n.2).

Applying this principle, it was held in Poindexter II,

supra, that the fact that grants to private schools had the

effect*of ‘‘assisting whites to flee to private schools,’’ 275

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33

F. Supp. at 856, provided an independent ground for the

holding that the state law authorizing such grants was un-

constitutional. After stating that the purpose of the act

involved in that case was discriminatory, the court con-

tinued: ‘‘We hold also that Act 147 of 1962 is unconstitu-

tional in its actual effect.’’ Id. at 857 (emphasis added).*

Hence, all that appellees in the present case have to al-

lege—as they have done—and to prove—if and when the

case goes to trial—is that aid given to nonpublic schools,

including parochial schools, under the Act promotes racial

discrimination and segregation in the affected schools. It

can be said, in addition, that the effect of the Act is to ‘‘en-

courage’’ parents of white children to leave public schools

and thus to aggravate and perpetuate patterns of racial

segregation in education. See Reitman v. Mulkey, 387 U.S.

369 (1967).

Returning to Burton, supra, the applicability of the

“state action’? concept to this case is not affected by the

language in that opinion stating that ‘‘private conduct

abridging individual rights does no violence to the Equal

Protection Clause unless to some significant extent: the

State in any of its manifestations has been found to have

become involved in it.’? 365 U.S. at 722. The ‘significant

involvement’’ doctrine of Burton would apply in the pres-

ent case only if appellees sought a judgment restraining the

4. Also relevant in this connection is Griggs v. Duke Power Co.,

401 U.S. 424 (1971). That case arose under Title VII of the Civil

Rights Act of 1964 which prohibits discriminatory employment prac-

tices. 42 U.S.C. 2000e et seg. In discussing this prohibition this

Court made it clear that whether a given practice is discriminatory

does not depend on motivation by the employer but on the conse-

quences of the practice in question.

34

affected schools from discriminating or segregating on a

racial basis. Only then would the question arise as to

whether the state involvement in the school operation as a

result of its providing funds is so significant that such .

operation becomes state action. But the thrust of the com-

plaint in the present case is directed at the state because

of the aid it gives to the parents of children attending

those schools ; as mentioned before, there can be no question

that such aid constitutes state action regardless of whether

the amounts given are small or large. (See Poindezter II,

supra, 275 F’. Supp. at 854, where it was said that ‘‘the pay-

ment of public funds in any amount through a state commis-

sion under authority of a state law is undeniably state

action.’’) |

POINT IV

Appellee Lemon has standing to raise the question

of Equal Protection.

In order to claim invalidity of the Pennsylvania Act

under the Equal Protection Clause of the Fourteenth

Amendment, appellees or at least one of them must have

standing to raise this issue. Baker v. Carr, 369 U.S. 186,

204 (1962); Barrows v. Jackson, 346 U.S. 249, 255 (1953).

Alton J. Lemon, one,of the appellees, we submit, has such

standing.

Lemon is the father of a black child attending a public

school in Pennsylvania. It is alleged in the complaint that

the Act on its face and as construed and applied by defend-

ants perpetuates and promotes the segregation of races in

violation of the Fourteenth Amendment.

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35

Thus, appellee Lemon in this action vindicates the con-

stitutional right of his child not to be subjected to segre-

gated education. Hence, he has standing under the basic

rule that a person may vindicate his own constitutional

rights. Barrows v. Jackson, supra. See also Poindezter I,

supra, and Griffin v. State Board of Education, 239 F. Supp.

560, 562 (H.D. Va. 1965) ; see also Note, Federal Tax Bene-

fits to Segregated Private Schools, 68 Colum. L. Rev. 922,

952-54 (1968). Lemon’s position in this matter is no differ-

ent from that of plaintiffs in Alexander v. Holmes County

Board of Ed., supra, and the other cases on desegregation

and integration decided by this Court. In each of these

cases, plaintiff Negroes claimed that they and their children

were directly affected by discrimination and segregation

in public schools. Like the plaintiffs in those cases, Lemon

and his child have ‘‘a personal stake in the outcome of the

controversy.’’ Baker v. Carr, supra, cited in Flast v. Cohen,

392 U.S. 83, 99 (1968).

Therefore there is no need in the present case to carve

out a special exception to the general rule as was done in

Barrows v. Jackson, supra, where a white person was

granted standing to complain that the enforcement of a

restrictive covenant against a Negro deprived the latter

of the equal protection of the laws. Instead, the general

rule applies, under which a person may claim standing in

this Court to vindicate his constitutional rights.

If Lemon had no standing to bring the present action,

there would be no possible way: of contesting the grants

made under the Act on the ground that they constitute a

violation of the equal protection of Negro children in the

public schools. Obviously, neither the schools which re-

36

ceived state aid nor the children attending such schools can

be expected to contest the grants.

Maintenance of constitutional government requires that

there be some way of testing the constitutionality of laws

and administrative acts. Otherwise the very foundation

of our Constitution would be subverted. Marbury v. Madi-

son, 1 Cranch 137 (1803).

The rules governing standing should be given a liberal

interpretation to facilitate the review of laws and admin-

istrative acts as to their constitutionality. It is for these

reasons that the amici believe that appellee Lemon should

be held to have standing to raise the constitutional question

based on the Equal Protection Clause.

Conclusion

It is respectfully submitted that the decision below

should be affirmed.

Respectfully submitted,

ARNOLD Forster

Pau. Hartman

SaMvueL Rasinove

JosEPH B. Rosison

Attorneys for Amici

Brverty CoLEMAN

Ex.ior RorHENBERG

Of Counsel

March, 1973.

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