Appellees Brief — Sloan v. Lemon

—_

FILE COPY $f SPrfts’

MAR 29 1973

CLERE

Supreme Court of the Unikeg States

October Term, 1972.

%2-45@Qok. 459, 620.

GRACE SLOAN, as State Treasurer of the Commonwealth

of Pennsylvania

and

JOSE DIAZ and ENILDA DIAZ, His Wife, WILLIAM

ZIMMERSPITZ and NANCY ZIMMERSPITZ, His Wife,

F. CARL KRETZMAN and KATHERYN L. KRETZ-

MAN, 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, and HENRY E.

CROUTER,

Appellants,

Vv.

ALTON J. LEMON, NEAL F. BRACKEN and

BENJAMIN S. LOWENSTEIN,

Appellees.

Appeal From the United States District Court for the

Eastern District of Pennsylvania.

BRIEF FOR APPELLEES.

THEopoRE*R. Mann,

Leo Prerrer,

Attorneys for Appellees.

1845 Walnut Street,

Philadelphia, Pa. 19103

International, 711 So. 50th St., Phila., Pa. 19143—Tel. SA 7-8711 Area Code 215

OPINION

ARGUMENT

I. Parent Reimbursement Act for Nonpublic Education

Subsidizes Sectarian Instruction, Has a Primary

Effect Which Advances Religion, and Fosters Ex-

cessive Political Entanglement, and Therefore Vio-

lates the Establishment Clause ..............+--

ee

CONSTITUTIONAL AND STATUTORY PROvISIONS INVOLVED .....

QUESTIONS PRESENTED ...........seecesescceecececerees

Peet Uh TIE LAUD o ipancc os 40 thnk ebb e5 a eb ei eerie

Sika OF TI 6 oan 6 vn oho 060 uth obs oe cennsiees

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A. State Support of Parochial Education Generally,

as Distinguished From the Support of Non-

Educative Services and Secular Educational Serv-

ices Provided by Such Schools, Has Always

Been Regarded as Unconstitutional, From the

Beginning of Our Nationhood to the Present

Time, by Every Justice Who Has Addressed

oe | . eer ree re

B. Act 92 Constitutes State Support of Parochial

Education, and Its Primary Effect Advances Re-

ry ep gag eee gee rere tly ryt oy oy an

1. Tuition Payments Directly to Schools and

Tuition Payments to Parents Are Constitu-

ay TOME a oo oa sc ctivcctess es

. The Fact That the Reimbursement Is Made at

the End of the School Year Is of No Constitu-

ee Or er, SP ree

INDEX (Continued).

D. Act 92 Fosters an Excessive Entanglement With

I igh oti ori ays ee

1. Administrative Entanglement ..............

2. Political Entanglement ....................

E. Act 92 Interferes With Appellees’ Free Exercise

of Religion and Appellees Have Standing to

sep testy Bie, BoE ERE OO

CP CSCHEEAODOH69O6 6K OS D6

ditto > Angin Dal te edt SEM ERA EE ee eee

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Page

TABLE OF CITATIONS.

Cases: Page

Almond v. Day, 197 Pa. 419 (1955) ..............4- 9, 12, 15, 26

Baker v. Carr, 369 U. S. 186 (1962) ......ceccecccecececes 26

Board of Education v. Allen, 392 U. S. 236 (1968) 11, 17, 19, 26,27

Committee for Public Education and Religious Liberty v.

Nyquist, — F. Supp. — (S. D. N. Y. 1972) ......... 14

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

7,8, 9, 10, 12, 14, 17, 19, 20, 23, 24

ike Cle Sie 15. Re CR ok so ees kod paces csaas 26

Hartness v. Paterson, 179 S. C. 2d 997 (1971) ............ 14

Jones v. Commonwealth, 185 Va. 335, 38 S. E. 2d 444 ....... 9

Judd v. Board of Education, 278 N. Y. 200 (1968) ......... 13

Lemon v. Kurtzman, 403 U. S. 602 (1971) 4, 10, 11, 14, 17, 18, 19, 22

Lemon v. Kurtzman, 310 F. Supp. 35 (E. D. Pa. 1969) ....28, 29

McCollum v. Board of Education, 333 U. S. 203 (1948) .... 8

Protestant Episcopal Education Society v. Churchman’s Repre-

Se WE FU A xd vevduc esse ccesy~ vi Shiu es 9

School District of Abington v. Schempp, 374 U. S. 203 (1963) 10, 20

Swart v. South Burlington Town School District, 122 Vt. 177,

SP A CI ccc chicas dane teens 10, 15

Tilton v. Richardson, 403 U. S. 672 (1971) ....... 4, 10, 14, 16, 17

Walz v. Tax Commission, 297 U. S. 664 (1970) .......... 10, 19

Williams v. Board of Trustees, 173 Ky. 708 (1917) ...... 13, 19

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

ee ee Bi, Sue UIaat pi ge 207 SRI a alge eRe 4,14, 15, 20

Zorach v. Clauson, 343 U. S. 306 (1952) ............005- 9

United States Constitution:

i Ri oon oo cs anni s soa doe 1, 2, 3, 4, 6, 8, 12, 18, 30

Pe FE a a. 5 on cs v0 on ons cdncoee tances 2, 3, 5, 8, 18

Statutes:

Parent Reimbursement Act for Nonpublic Education, Pa. Stat.

Anno., Tit. 24, § 5701 et seq. (Supp. 1972)

1, 2, 4, 5, 6, 18, 22, 25, 31

TABLE OF CITATIONS (Continued).

Authorities: Page

Cobb, The Rise of Religious Liberty in America, P. 170 (1902) 23

Cooley, Constitutional Limitations .................-20000. 8

Miscellaneous:

Sepunt ak Ascibaatas, BOGE ook oss ccc ns cu cnccsccnccecs 20

Statistics of Nonpublic Elementary and Secondary Schools,

Office of Education, U. S. Dept. of Health, Education

eR hain 6 howe cs bv cdin dean cdaadeces

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OPINION.

8 On July 21, 1972, the three-judge District Court

granted Appellees’ (plaintiffs below) Motion for Summary

Judgment based on an Opinion of April 6, 1972, which

0 denied Appellants’ (defendants below) Motions to Dismiss.

That Opinion is reported at 346 F. Supp. 1356 (KE. D. Pa.

1972) and is in the Appendix beginning at page 37a.

L

- @ONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED.

Constitution of the United States, Amendment I, as

applicable to the States by the Fourteenth Amendment:

‘*Cofigress shall make no law respecting an estab-

lishment of religion, or prohibiting the free exercise

thereof. . .”’

Constitution of the United States, Amendment XIV:

**(Nlor shall any state . . . deny to any person

within its jurisdiction the equal protection of the laws.’’

Parent Reimbursement Act for Nonpublic Education

Act 92 of the Laws of Pennsylvania, 1971, P. L. —, Pa.

Stat. Ann., Tit. 24, 45701, et seq. (Supp. 1972) (hereinafter,

the Act). The Act is set forth in the Appendix, commenc-

ing at page 56a.

2 Questions Presented

%

QUESTIONS PRESENTED.

1. Does the Pennsylvania Parent Reimbursement Act

for Nonpublic Education (Act 92 of the Pennsylvania Gen-

eral Assembly, August 27, 1971), which at the end of a

school year would reimburse parents of nonpublic school

children all or a portion of the tuition paid at a nonpublic

school, violate the Establishment Clause of the First

Amendment to the United States Constitution either be-

cause it subsidizes religious education or because it has a

primary effect which advances religion or because it fosters

excessive political entanglement?

2. Does the Act violate the Free Exercise Clause of the

First Amendment to the United States Constitution?

3. Did appellees (plaintiffs below) have standing to

assert that the Act additionally violates the Equal Protec-

tion Clause of the Fourteenth Amendment to the Constitu-

tion of the United States in that it perpetuated and pro-

moted the segregation of the races?

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Statement of the Case 3

STATEMENT OF THE CASE.

The Commonwealth of Pennsylvania enacted the

Parent Reimbursement Act for Nonpublic Education on

August 27, 1971 (App. 56a). Under the Act parents of non-

public students are reimbursed $75 for elementary school

~ tuition and $150 for secondary school tuition.

On September 13, 1971, Appellees filed their Complaint

alleging that the Act violated the Establishment, Free

Exercise and Equal Protection Clauses of the Constitution.

Thereafter, parents of children attending sectarian and

nonsectarian nonpublic schools in the State intervened as

parties defendant.

All defendants moved to dismiss the Complaint for

failure to state a claim for relief. On April 6, 1972, the

three-judge District Court denied those motions (App. 56a).

On April 28, 1972, the Court granted motions of the defend-

ants to dismiss those counts of the Complaint relating to

the Free Exercise and Equal Protection Clauses (App. 64a).

After all defendants filed answers, plaintiffs moved for

summary judgment. That motion was granted on July 21,

1972 and the Court, relying on its previously filed Opinion

of April 6, 1972, permanently enjoined the State Treasurer

from paying any funds to parents of children attending

nonpublic schools.

4 Summary of Argument

SUMMARY OF ARGUMENT.

Tuition reimbursement to parents of parochial school

children at the end of the school year, constitutes impermis-

sible government aid of parochial education.

Whether tuition moneys are paid to parents or to

schools is not significant, for in either case the result is that

religion has been advanced. Government may no more help

parents advance religion than it may help churches do so,

Conversely, where government aid does not advance reli-

gion, and avoids entanglement, it may be paid to religious

institutions directly. Tilton v. Richardson, 403 U. S. 672

(1971).

Whether reimbursements are made at the beginning or

the end of the school year is also not significant, and the

argument that the recipients are free to spend the reim-

bursement in any way they choose will not withstand judi-

cial scrutiny. Act 92 speaks to parents at the beginning of

the year, and tells them that if—and only if—they send

their children to nonpublic schools, they will receive tax

moneys at the end of the year. The statutory promise thus

encourages parents to send their children to and pay tuition

to parochial schools, and thereby advances religion.

Act 92 fosters political entanglement and divisiveness,

precisely as did the Pennsylvania statute invalidated by

this Court in Lemon v. Kurtzman, 403 U. S. 602 (1971). As

noted by the lower Court in Wolman v. Essex, 342 F. Supp.

399 (S. D. Ohio 1972), this is particularly the case with

statutes whose direct beneficiaries are a particular portion

of the population comprised in the main of persons of a

single religion. For the foregoing reasons, the lower Court

was correct in holding that Act 92 violates the Establish-

ment Clause of the First Amendment.

BLEED THROUGH —

Summary of Argument 5

The lower Court dismissed the Counts in the appellees’

Complaint which averred that Act 92 violated the Free

Exercise Clause of the First Amendment and the Equal

Protection Clause of the Fourteenth Amendment. The use

of tax funds for the advancement of religion violated the

religious consciences of appellees, and the freedom from

being taxed for religious purposes is fundamental to the

whole concept of religious freedom. Furthermore, Appel-

lee Lemon, a parent of a black child in a public school, had

standing and should have been permitted to prove that

Act 92 fosters racially segregated schools.

Argument

ARGUMENT.

I. PARENT REIMBURSEMENT ACT FOR NONPUBLIC

EDUCATION SUBSIDIZES SECTARIAN INSTRUC.

TION, HAS A PRIMARY EFFECT WHICH AD.

VANCES RELIGION, AND FOSTERS EXCESSIVE

POLITICAL ENTANGLEMENT, AND THEREFORE

VIOLATES THE ESTABLISHMENT CLAUSE.

Introduction.

If there is any doctrine in constitutional law that can

be said to be definitively settled, it is that an unrestricted

grant of governmental funds to a school which has as a

dominant or substantial purpose sectarian instruction or

religious worship violates the Establishment Clause of the

First Amendment (as well as the constitutional, statutory

or decisional law of every State in the Union). We know

of no court, judge or constitutional authority who has ex-

pressed a contrary view. Hence, if the Parent Reimburse-

ment Act for Nonpublic Education (‘‘Act 92’’) provided

simply that at the end of the school year the State would

pay to each such school the sum of $150 for each high school

pupil and $75 for each elementary pupil, the Act would be

clearly unconstitutional on its face.

The appellants in the present case do not contend the

contrary. Their sole attempted justification of the consti-

tutionality of the Act rests upon the provision that the sum

be paid not directly to the school but to the parent of the

pupil on production of a receipted tuition bill at the end

of the school year. The question to be decided by this

Court then is whether the constitutional prohibiticn against

governmental financing of religious instruction and prac-

tices can be avoided by the tuition reimbursement mecha-

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Argument 7

nism. If the answer to this question is yes, it would not

merely elevate form over substance, but would make the

Establishment Clause ineffective to prevent state support

of religious education and worship in schools.

A. State Support of Parochial Education Generally, as

Distinguished From the Support of Non-Educative

Services and Secular Educational Services Provided

by Such Schools, Has Always Been Regarded as Un-

constitutional, From the Beginning of Our Nationhood

to the Present Time, by Every Justice Who Has Ad-

dressed Himself to the Subject.

In the footnotes are cited the cases and historical back-

ground establishing that the use of tax monies for sectarian

teaching was the very issue which gave rise almost two

centuries ago to Virginia’s Bill for the Establishment of

Religious Freedom, the forerunner of the establishment

clause ;’ that later, as a result of divisive struggles in many

1, In 1784, there was introduced into the Virginia Colonial

Legislature, “A bill Establishing a Provision for Teachers of the

Christian Religion.” Everson v. Board of Education, 330 U. S. 1

(1947), Supplemental Appendix at p. 72 (Dissenting Opinion),

(“Everson”). It sought to resume the payment of “tithes” which

had been suspended in 1777. By its terms, the taxpayer could

designate the sect whose Teacher or Minister his tax payment would

support, and in the absence of such designation, the fund would be

used “for the encouragement of seminaries of learning within the

Counties whence such sums shall arise, and to no other use or purpose

whatsoever.” That Bill so outraged James Madison that he com-

posed and circulated his famous “Memorial and Remonstrance

Against Religious Assessments” in which he said:

Who does not see . . . that the same authority which can force

a citizen to contribute three pence only of his property for the

support of any one establishment, may force him to conform

. any other establishment in all cases whatsoever? Appendix,

d. at 65-6.

The Memorial and Remonstrance won the day and the Bill was de-

feated in 1785. Because “tithes had been the life blood of establish-

8 Argument

states throughout the 19th century, the prohibition of State

support for religious instruction ‘‘became the guiding prin-

ciple, in law and feeling, of the American people’’;? and

that still later, and repeatedly in the last twenty-five years,

this Court and various state Supreme Courts, stated and

restated that the First and Fourteenth Amendments bar

1. (Cont’d.)

ment,” this date, and the earlier date when such payments were first

suspended (1777), are variously described as the date of disestablish-

ment of the Anglican Church in Virginia. There was then enacted

Thomas Jefferson’s Bill for Establishing Religious Freedom, the

forerunner to the First Amendment. "The Preamble to that Bill

stated “that to compel a man to furnish contribution of money for

the propagation of opinions which he disbelieves is sinful and tyran-

nical . . .” Everson, dissent supra at pp. 33-41 n. 33.

2. “As the momentum for popular education increased and in

turn evoked strong claims for State support of religious educa-

tion, contests not unlike that . . . in Virginia. . . a

in various forms in other States. * * * In New York, the rise

of the common schools led . . . to the barring of tax funds to

church schools, and later to any school in which sectarian doc-

trine was taught. * * * The upshot of these controversies, often

long and fierce, is fairly summarized by saying that long before

the Fourteenth Amendment subjected the States to new limita-

tions, the prohibition of furtherance by the State of religious

instruction became the guiding principle, in law and feeling, of

the American people. * * *”

“Separation in the field of education, then, was not imposed upon

unwilling States by force of superior law. In this respect the

Fourteenth Amendment merely reflected a principle then domi-

nant in our national life. To the extent that the Constitution

thus made it binding upon the States, the basis of the restriction

is the whole experience of ag gre ** *” McCollum v,

Board of Education, 333 U. S. , 214, 215 (1948) (concurring

opinion of Mr. Justice Frankfurter) (emphasis supplied).

In the 1868 edition of Cooley, Constitutional Limitations, he

states (at p. 469):

“Those things which are not lawful under any of American

constitutions may be stated thus :—

* . *

“2. Compulsory support, by taxation or otherwise, of religious

instruction. Not only is no one denomination to be favored at

the expénse of the rest, but all support of religious instruction

must be entirely voluntary.”

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Argument 9

the use of tax funds for the support of any institution which

teaches sectarian doctrine.®

—_—

3

1947—“No tax in any amount, large or small, can be levied to

1952—“Government may not finance religious groups . . .

support any religious activities or institutions, whatever

they may be called, or whatever form they may adopt to

teach al “ese religion.” Everson, majority, supra, note

1 at p. 16.

“New Jersey cannot consistently with the ‘establishment

of religion’ clause of the First Amendment contribute

tax-raised funds to the support of an institution which

teaches the tenets and faith of any church.” Id.

“It [the purpose of the First Amendment] was to create

a complete and permanent separation of the spheres of

religious activity and civil authority by comprehensively

forbidding every form of public aid or support for reli-

gion. In proof the Amendment’s wording and history

unite with this Court’s consistent utterances whenever

attention has been fixed directly upon the question.”

Everson, dissent, supra, note 1 at pp. 31-32.

“| . the Amendment forbids any appropriation large or

small, from public funds to aid or support any and all

religious: exercises.” Jd. at 41.

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

1955—A tuition reimbursement law was held in 1955 by a

unanimous Virginia Supreme Court to violate the First

Amendment, if these words:

“The payment of such items-to sectarian schools as di-

rected or authorized by the terms of Item 210 is uncon-

stitutional because, (1) it utilizes — funds to support

religious institutions contrary to the principles laid down

in Everson v. Board of Education, supra, 330 U. S., at

page 16, 67 S. Ct., at page 511; (2) It ‘affords sectarian

groups an invaluable aid in that it helps to provide pupils

for their religious classes through use of the state’s com-

ome blic school machinery,’ condemned in McCol-

‘um v. Board of Education, 333 U. S. 203, 212 S. Ct.

461, 466, 92 L. ed. 649; (3) It compels taxpayers to

contribute money for the propagation of religious opinions

which they may not believe. See Protestant Episcopal

Education Society v. Churchman’s Representatives, 80

Va. 718, 885; Jones v. Commonwealth, 185 Va. 335, 344,

38 S. E. ag 444, 448.” Almond v. Day, 197 Va. 419,

430 (1955).

10 Argument

Until recently, general subsidization of parochial

schools by way of tuition or teachers’ salary payments or

across-the board grants of any kind was very much the

exception. The landmark cases in the main have concerned

statutes granting only limited aid for certain non-educa-

tional, or secular educational, services. Thus, a bare

majority of the Supreme Court held in Everson‘ that bus

transportation, while on the ‘‘verge’’ of permissibility,’ is a

service which a state may provide to all its children as.a gen-

eral health or safety messeure, much like free milk, lunches,

nursing services, or dental and eye examinations. While it

is true that such state aid may cause parochial schools to

save money, that has never been the test of constitu-

tionality.®

3. (Cont’d.)

1960—A unanimous Vermont Supreme Court came to the same

conclusion where the State paid the tuition to the schools.

Swart v. South Burlington Town School District, 122

Vt. 177, 167 A. 2d 514 (1960).

1963—“The most effective way to establish any institution is

to finance it; and this truth is reflected in the appeals by

church groups for public funds to finance their religious

schools.” (emphasis in original) School District of

Abington v. Schempp, 374 U. S. 203, 229 (1963) (con-

curring opinion of Mr. Justice Douglas).

1970—“General subsidies of religious activities would, of course,

constitute impermissible state involvement with religion.”

Walz v. Tax Commission, 397 U. S. 664, 690 (1970)

(concurring opinion of Mr. Justice Brennan).

1971—“The Rhode Island Legislature has not and could not,

provide state aid on the basis of a mere assumption that

secular teachers under religious discipline can avoid con-

flicts. The State must be certain, given the Religion

— that subsidized teachers do not inculcate reli-

. .” Lemon v. Kurtzman, 403 U. S. 602, 619

{1971) (“Lemon”).

4. See note 1, supra.

5. Id. at 16.

6. Id. at 18; Tilton v. Richardson, 403 U. S. 672, 679 (1971).

. ie 1 a eaten dincslieainatnins

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Argument 11

€

Later legislative efforts approached the problem differ-

ently, and attempted to separate out the secular from the

religious educational services in order to provide tax funds

for the one but not the other. First, on a ‘‘meager record’’

containing no evidence on the question whether secular

textbooks ‘‘are used by the parochial school to teach re-

ligion,’’ and with three justices dissenting, the Court held

that a state may lend secular textbooks to parochial school

children. Board of Education v. Allen (‘‘ Allen’’).”

Next, the Supreme Court dealt with Pennsylvania’s at-

tempt to ‘‘purchase’’ secular educational services from

private schools and with Rhode Island’s effort to supple-

ment salaries of those private school teachers who do not

teach religion. With only one justice dissenting, both laws

were invalidated.’ The issue in both cases appeared to be

whether the secular and the sectarian in a parochial school

are separable, such that the one but not the other could be

aided with public funds. But that issue was never joined,

for the Court concluded 1) that such aid would be uncon-

stitutional unless the State were certain that the subsidized

teachers do not inculcate religion, and 2) that the kind of

pervasive restrictions and supervision necessary to ensure

such certainty would themselves bring about an unconstitu-

tional entanglement between church and state. Thus:

The Rhode Island Legislature has not, and could not,

provide state aid on the basis of a mere assumption that

secular teachers under religious discipline can avoid

conflict. The State must be certain, given the Religion

Clauses, that subsidized teachers do not inculcate re-

ligion. * * * These prophylactic contacts will involve

excessive and enduring entanglement between state

and church.°® |

7. 392 U. S. 236, 248 (1968).

8. Lemon, supra note 3.

9. Id. at 619.

12 Argument

Now we have come full circle. Outright grants being

clearly unconstitutional, legislatures enacted a number of

laws providing fringe benefits such as health services, milk

and bus transportation for parochial school children. They

then attempted to provide aid for the secular part of the

school’s educational program but, except for secular text-

books, it was held that our constitution would not permit it.

Now, in the instant case, we are confronted with the kind

of law which, if constitutional, would have made unneces-

sary all of the previous legislative efforts. For this law

would have the state reimburse all or part of parochial

school tuitions. Tuitions are the ‘‘very life blood’’ of a

parochial school *® just as ‘‘tithes had been the lifeblood

of establishment’’ of the Anglican Church in Virginia.”

The one is as profoundly at variance with the whole meaning

of the First Amendment as the other. Pennsylvania has

done exactly what the Court, in the quotation above, said

Rhode-Island could not do. It has provided aid either on

the ‘‘mere assumption’’ that teachers in the aided schools

do not inculcate religion, or, worse yet, totally without rea»

gard to whether they do or not.

B. Act 92 Constitutes State Support of Parochial Educa-

tion, and Its Primary Effect Advances Religion.

1. Tuition Payments Directly to Schools and Tuition

Payments to Parents Are Constitutionally Identical.

As has been noted, independent of the First Amendment

every State in the Union forbids governmental support of

religious education. Efforts to avoid this prohibition by

means of tuition payments—to institutions and by way of

reimbursements to parents—have had a long and uniformly

10. Almond v. Day, 197 Va. 419, 427 (1955).

11. Everson, dissent, supra note 1 at p. 41.

BLEED THROUGH . ——

Argument 13

unsuccessful history. As stated in 1938 by the New York

Court of Appeals in Judd v. Board of Education: ”

The courts of this country have been unanimous in pro-

hibiting a use of public funds to pay directly or indi-

rectly, tuition fees of pupils in private or sectarian

schools.

Typical of the state court decisions is that of the

Kentucky Court of Appeals in Wiliams v. Board of Trus-

tees,* which held that an arrangement between a public

board of education and a sectarian college under which the

college was paid tuition fees out of common school funds

was a flagrant violation of a constitutional provision that

no portion of any funds raised by taxation for education

may be used in aid of any church, sectarian or denomina-

tional schools.

Nor have there been any changes in state court decision

since the New York court spoke in Judd v. Board of Edu-

cation. In Opinion of the Justices,“ the Massachusetts

Supreme Judicial Court held in 1970 that a measure pro-

viding for payment in the sum of $100 to each child attend-

ing an accredited private school in the form of a voucher

endorsed by the payee to the school, and providing further

that ‘“No allotment shall be used to subsidize courses of

religious doctrine or worship,’’ violated a provision in the

State constitution against the use of public funds to aid

private schools.

In 1971, the South Carolina Supreme Court invalidated

a 1970 statute providing for tuition grants to students at

nonpublic colleges in the State, holding that the statute

violated the State constitutional prohibition against use of

12. 278 N. Y. 200, 215 (1968).

13. 173 Ky. 708 (1917).

14, 259 N. E. 2d 564 (Mass., 1970).

14 Argument

public funds for the support of institutions controlled by

religious denominations.* In that case the Court said:

We reject the argument that the tuition grants pro-

vided under the Act do not constitute aid to the par-

ticipating schools. Students must pay tuition fees to

attend institutions of higher learning and the institu-

tions depend upon the payment of such fees to aid in

financing their operations. While it is true that the

tuition grant aids the student, it is also of material

aid to the institution to which it is paid. The fact that

only a portion of the tuition costs are covered by the

grants from the State affects the matter only in degree.

If State funds can be used to provide a portion of the

tuition costs for attendance at religious schools, all

could just as legally be paid, resulting in the support

of such institutions entirely with State funds.

These cases were decided under state constitutional

provisions, but these provisions merely state specifically

what the United States Supreme Court has consistently

held in every Establishment case that has come to it from

Everson through Lemon and Tilton v. Richardson, namely,

that governmental funds may not be used to finance re-

ligious education or worship. In any event, the same result

has been reached in three recent federal court decisions

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

93 S. Ct. 61; Committee for Public Education and Religious

Liberty v. Nyquist, — F. Supp. — (S. D. N. Y. 1972), and

the decision in the instant case). All three decisions were

by three-judge courts and all were unanimous. Finally, in

the two State court cases which have considered the ques-

tion under the Establishment Clause of the First Amend-

15. Hartness v. Paterson, 179 S. C. 2d 997 (1971).

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BLEED THROUGH =

Argument 15

ment of the Federal Constitution (Almond v. Day,” and

Swart v. South Burlington School District*’), the courts

ruled that statutes appropriating public funds to pay the

tuition of pupils attending sectarian schools violated the

Establishment Clause of the First Amendment.

Our research has failed to uncover a single decision of

any court in the United States, Federal or state, upholding

the constitutionality of a statute providing for payment—

whether to school or parent—of tuition for attendance at

religious schools. No such decision is cited in any of the

briefs of appellants. The only permissible conclusion is

that none exists.

C. The Fact That the Reimbursement Is Made at the End of

the School Year Is of No Constitutional Significance.

Appellants argue that the reimbursement feature, and

particularly the fact that the reimbursement is received at

the end of the school year and may be spent in any way the

recipient chooses, makes a difference. The lower courts in

both the instant case and in Wolman v. Essex spoke to this

precise issue,’* and we will not repeat their conclusions in

the body of this brief. We would add only the fact that the

Act was passed before the school year started and what it

told the parents was that if they enrolled their children in

non-public schools they would receive tax funds at the end

of the school year. The statutory promise thus encouraged

parents to enroll their children in non-public schools. This

was in conformity. with the very purpose of that Act, which

is said to be to aid parents so they will not ‘‘be forced by

16. See note 10, supra.

a 17, 122 Vt. 177, 167 A. 2d 514 (1961), cert. den’d 366 U. S.

18. 342 F. Supp. 399, 415-417 (S. D. Ohio 1972); opinion

of lower court in instant case at Appendix, 49a-55a.

i

16 Argument

economic circumstances to transfer’’ their children to

public schools and create an ‘‘enormous added financial’”’

burden on the public schools (Appendix, 57a). To the de-

gree that purpose is achieved, the effect will be that children

in private schools will not be transferred to public schools

but will remain where they are. It is in this connection

that the lower court so correctly observed:

The state cannot maintain that the Act has the purpose _

of promoting education by supporting non-public

schools and then deny that the effect of the Act is to ©

aid these schools. (Appendix, 52a)

Had it been necessary to make a trial record, it would

have been established that in most parochial schools tuitions

were either charged for the first time, or were increased by

the statutory amounts in the 1971-1972 school years, and

parents were notified that these amounts would be reim-

bursed by the State at the end of the year. But no such

proof is necessary, for even if parochial schools would have

charged the same tuition with or without the new reimburse-

ment law it would make no difference. The statutory

scheme is such that the State, by promising reimbursement,

has encouraged parents to pay tuition to parochial schools

and thus has aided the schools. Furthermore, the State

has no more power to help or to encourage parents to pro-

vide a religious education for their children than it has to

help church schools to do so. Therein lies an additional

weakness in appellants’ argument. They focus on the

question whether the reimbursement will or will not find

its way into the religious school’s treasury. Clearly that

is not the critical factor. Tax funds may be and often are

paid to-religious institutions for a variety of purposes.

See, e.g., Tilton v. Richardson, supra. Because it is sub-

stance and not form which must control, the lower Court

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Argument 17

held that there must be an examination into ‘‘the character

of the aided activity rather than the manner in which aid

is given.’’, (Appendix, 51a).

When tax funds are provided for secular text books

(Allen), the aided activity, absent evidence of misuse of

the books, is secular education. When funds are used to

pay secular teachers (DiCenzo) or to purchase math and

foreign language courses (Lemon), the aided activity is

secular education. When funds are used to build a building

for secular use (Tilton), the aided activity is secular edu-

cation. But when tax funds are used to encourage parents

to continue to send their children to parochial schools, the

‘‘character of the aided activity,’’ i.e., parochial education,

is religious. Indeed the aided activity is at the very core

of the whole purpose of religious organizations—i.e., the

religious education of the young. p

It can be argued that in Everson the activity which was

aided by the bus transportation payments was, arguably,

parochial education. But that case went to the ‘‘verge”’ of

constitutionality, and the aid was incidental and quite finite.

When a state undertakes to pay for bus transportation,

there is a self-executing limit to the cost, and that cost will

never be anything but a fraction of the total cos} of run-

ning a school. But when a state undertakes to pay or repay

a portion of tuition, there is no self-executing limit short

of underwriting the entire budget of the school. The only

limitation is that which state legislators choose to impose.

We respectfully suggest that if there were a constitu-

tional difference between reimbursed and direct tuition

payments, we would be engaged, in Mr. Justice Burger’s apt

phrase, in a ‘‘legalistic minuet”’ in which form and stvle is

an end in itself. We must rather ‘‘examine the form of the

relationship for the light that it casts on the substance.’’”

19. Lemon, supra, note 3 at p. 614.

yw

18 Argument

The substance of the matter is that whether the State gives

$150 per child to the parochial school, or gives it to the

parents to give to the school, or reimburses the parents

after they have paid it to the school, the State is using tax-

raised funds to subsidize parochial education.

D. Act 92 Fosters an Excessive Entanglement With

Religion.

1. Administrative Entanglement.

If ‘‘administrative entanglement’’ is absent in Act 92,

it is absent only because the State has abandoned altogether

any effort to provide its aid for exclusively secular pur-

poses. ‘‘The State must be certain, given.the Religion

Clauses, that subsidized teachers do not inculcate reli-

gion.’’*® Pennsylvania, in order to avoid administrative

entanglement, has stopped trying to be ‘‘certain,’’ and has

thereby again violated the First and Fourteenth Amend-

ments.

2. Political Entanglement.

Furthermore, the Court in Lemon was equally con-

cerned by political entanglements. The entanglement ‘‘pne-

sented by the divisive political potential of these state pro-

grams,’’*' inheres in the new Pennsylvania law exactly as it

did in the old and demonstrates how close we really are to

the very corruption of our political processes which brought

about the First Amendment in the first place.

Many justices in many cases have shown the same acute

concern as did Mr. Justice Burger over the divisive political

potential of such legislation. In 1917, the Kentucky Sn-

preme Court said that if legislatures were permitted to

20. Id. at 619.

21. Id. at 622.

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a

Argument 19

legislate in this sphere, ‘‘presently we would have the com-

mon schools here and there throughout the state operated

inconnection with that denominational school that happened

to have the largest influence and membership in the par-

ticular community where the union was made.’’* Mr.

Justice Jackson noted in Everson,” that the Religious

Freedom clauses were intended ‘‘above all, to keep bitter

religious controversy out of public life by denying to every

denomination any advantage from getting control of the

_. . public purse.’’ Mr. Justice Harlan, in Walz v. Tax

Commission of City of New York (‘*Walz’’)™ commented

that ‘‘{w]hat is at stake [in applying the First Amend-

ment] as a matter of policy is preventing that kind of de-

gree of government involvement in religious life that, as

history teaches us, is apt to lead to strife and frequently

strain a political system to the breaking point.’’ And Mr.

Justice Black stated in Allen,” that the establishment clause

‘“was written on the assumption that state aid to. . .

religious schools generates discord, disharmony, hatred,

and strife among our people, and that any government that

supplies such aid is to that extent a tyranny.”’

Mr. Justice Burger, in Lemon, noted that other forms

of vigorous and partisan political debate are healthy mani-

festations of a democratic government. But somehow

political debate over whether to finance religious activities

had—in European history, in Colonial history and today—

a shriller tone, engendering irrational fears and hate. Our

founding fathers were so revolted by that particular kind

of political division—along religious lines—that they

‘‘stripped’’ the legislature “‘of all power to tax, to support,

22. Williams v. Board of Trustees, 173 Ky. 708 (1917).

23. Everson, dissent, supra note 1 at p. 27.

24. 397 U. S. 664, 694 (1970).

25. 392 U. S. 236, 254 (1068).

20

Argument

or otherwise to assist any or all religions’’** and they did

so in the very first line of the Bill of Rights.

Judge Rubin, in Wolman v. Essex, supra, at 412, 413,

noted that the potential for political entanglement is far

greater where the class affected by the legislation is narrow

and one religious group predominates within that class,

He noted that in the cases where constitutionality has been

upheld, ‘‘religiously affiliated institutions were among a

broad class of beneficiaries deriving benefits of a general,

broad-based, public policy.’’ Perhaps this is just another

way of saying that while laws which subsidize all religions

are unconstitutional, laws which in their effect prefer some

religions over others are even more abhorrent, because

their potential for causing political divisiveness in a multi-

religious society is so much greater.

The constitutionality of this law cannot be determined

abstractly, as though Pennsylvania were starting afresh

and as yet had no public or private schools. The law must

be examined for its effect upon the present reality, which

is that we have not only public schools but a wide network

of private schools; that in the 1965-66 school year, over

95% of Pennsylvania’s nonpublic elementary schools were

church-related, and of these 88% were Catholic;*" that a

much higher percentage of Catholic school children attend

parochial schools than do Jewish or Protestant children;

and that a parochial school education is (and is regarded

by its religious proponents to be) the most effective means

available to the various denominations to maintain ad-

herents to their particular faiths.**

26. Everson, majority, supra note 1 at p. 11.

27. Report of Archdiocese, 1969; see also Statistics of Non-

public Elementary and Secondary Schools, Office of Education,

U. S. Department of Health, Education and Welfare, OE-20111.

28. See, e.g., Mr. Justice Jackson’s dissent in Everson, supra

note 1 at 22-24; Mr. Justice Douglas oar tina in School District

of Abington v. Schempp, 374 U. S. 203 (1963).

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Argument 21

Given those facts, the potential for political entangle-

ment inhering in this law is obvious. It is no answer to

argue that the funds are available to all equally, if they

send their children to private schools. For all intents and

purposes there are no such Protestant schools. At a time

in the middle of the nineteenth century, when both knew

that government: funds would no longer be available to

subsidize religious education, Protestant America chose to

let their schools become public schools and Catholic America

chose to begin the arduous process of building parochial

schools. We wonder whether nineteenth century Protes-

tantism would so readily have permitted their schools to

evolve into our present public school systems, if they had

been able to foretell the future: that after a century or

mure, when Protestant schools hardly existed, Catholie

schools would qualify for state funding, thereby giving

(‘atholicism an enormous advantage in the competition be-

tween creeds to win and maintain adherents.

No matter what else the religion clauses may have

been intended to prevent, they certainly were intended to

keep the heavy hand of government off the competition

batween sects. European history and our own Colonial

history are replete with tragedies occurring when first

this sect and then that gained control of the public purse.

By virtue of the Religion clauses, once and for all religious

ideas, like other ideas, were required to compete in the

market place of ideas, entirely without the help of govern-

ment, i.e., without public funds obtained by the compulsion

of our taxing laws. Voluntarism was and is at the heart

of the concept. Whether, in such a system, a particular

sect would disappear or become the dominant or even ex-

clusive religion of the American people was to be no con-

cern of government. Each was free to try, but by persua-

sion only, and government could not help them persuade.

22 Argument

It is a fact that a far greater percentage of the funds

expended under this law will go to help Catholics persuade

their children that Catholicism is best than will go to help

Jews or Protestants persuade their children that Judaism

or Protestantism is best.

This Court has not addressed itself to the preferential

aspects of these kinds of laws, perhaps because the statutes

which have been upheld have involved peripheral services

and such small amounts of money as to be deemed de

minimus as they affected the competition among sects,

But now we are talking about the reimbursement of tui-

tion, a factor which obviously will affect the decisions of

many parents to send or not send their children to paro-

chial schools. We submit that Act 92, as compared to the

Pennsylvania statute invalidated in Lemon, more closely

approaches the worst evils intended to be eradicated by

the First and Fourteenth Amendments.

It tends to establish a religion.

It disadvantages, and thus interferes with, other

religions. :

And, precisely because it has such a preferential ef-

fect, its potential for political divisiveness along religious

lines is far greater.

E. Act 92 Interferes With Appellee’s Free Exercise of Re-

ligion and Appellees Have Standing to Raise That

Issue.

. In assessing the sufficiency of the Second Count of the

Complaint based upon the Free Exercise Clause, it should

be noted that:

—The Complaint alleges that the Act authorizes pay-

ment for the tuition of students in educational in-

stitutions which ‘‘have as their purpose the teach-

ing, propagation and promotion of a particular

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_—

Argument 23

religious faith, conduct their operations, curriculums

and programs to fulfill that purpose . - .- [and]

are an integral part of the religious mission of the

sponsoring church.’’ (Paragraph 10)

_The Complaint alleges that it ‘‘is against the re-

ligious conscience of each of the plaintiffs to be

forced by operation of the taxing power to contribute

to the propagation of religion. . . (Paragraph 6)

Act 92 does not limit reimbursement payments to

that part of the tuition which covers the cost of

secular instruction.

If there is no constitutional or practical difference

between a direct grant of governmental funds to religious

schools and payment of tuition for attendance (as every

court which has passed on the question has held) we have

here a classical instance of governmental use of tax-raised

funds for the teaching, propagation and promotion of

religion.

Fundamental to the concept of religious freedom was

the belief that it was destructive of personal freedom to

compel any man to pay taxes for religious purposes. In

fact, the history of the struggle for religious freedom in

America is in large measure the history of the struggle

against taxation for religious purposes. As early as 1644,

a tanner named Briscoe in Massachusetts Bay Colony

published a phamphlet against the church tax, arguing that

such a method of supporting religion was immoral and

contrary to justice.”

As the Court said in Everson:

These practices became so commonplace as to shock

the freedom-loving colonials into a feeling of abhor-

a 902) Cobb, The Rise of Religious Liberty in America, p. 170

Argument

rence. The imposition of taxes to pay ministers’ sal-

aries and to build and maintain churches and church

property aroused their indignation. It was these fee]-

ings which found expression in the First Amendment,

No one locality and no one group throughout the

Colonies can rightly be given entire credit for having

aroused the sentiment that culminated in adoption of

the Bill of Rights’ provisions embracing religious

liberty. But Virginia, where the established church

had achieved a dominant influence in political affairs

and where many excesses attracted wide public atten-

tion, provided a great stimulus and able leadership

for the movement. The people there, as elsewhere,

reached the conviction that individual religious liberty

could be achieved best under a government which was

stripped of all power to tax, to support, or otherwise:

to assist any or all religions, or to interfere with the

beliefs of any religious individual or group.*°

The Court then referred to the struggle against the

tax levy for religion in Virginia, Madison’s Memorial and

Remonstrance which !ed to its success, and Jefferson’s

Statute for Establishing Religious Liberty which was a

product of that success. It is significant that much of the

Memorial and Remonstrance is framed in terms of re-

ligious liberty. Indeed, its very opening invokes the free-

dom of religion clause. of the Virginia Declaration of

Rights, as does its close.” It is significant, too, that de-

30. Everson, majority, supra, note 1 at p. 11.

31. “Because we hold it for a fundamental and undeniable truth,

‘that religion, or the duty which we owe to our Creator, and the

manner of discharging it, can be directed only by reason and convic-

tion, not by force or violence’.” Jd. at 64.

32. “Because, finally, ‘the equal right of every citizen to free

exercise of his Religion according to the dictates of conscience’ is

held by the same tenure with all our other rights.” Jd. at 71.

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Argument 25

feat of the tax levy led immediately to the enactment of the

Statute for Establishing Religious Liberty, whose principal

provision is that ‘‘no man shall be compelled to frequent or

support any religious worship, placé or ministry whatso-

ever. * * #99 33

It is true that the defeated Virginia Bill levying taxes

for the support of religious teachers sought to impose a

specific tax rather than direct an appropriation from the

state’s general treasury. This, however, is also true of

Act 92. The funds appropriated thereunder do not come

from the general treasury but specifically from the cigarette

tax. Indeed, in one important aspect Act 92 constitutes an

even more serious infringement on religious liberty than

the Virginia Bill. Under that Bill each taxpayer had the

privilege of designating the religion or denomination to

which his tax was to go.* A Catholic cigarette smoker in

Pennsylvania, however, has no way of insuring that no part

of the tax he pays (which over a period of years can be

quite substantial, far more so than the ‘three pence’’ °

referred to in the Memorial and Remonstrance) will be used

to pay for the teaching and propagation of Protestant or

Jewish doctrines. :

We do not mean to suggest that Act 92 would not

violate the Free Exercise Clause if the funds for its effectua-

tion came out of the state’s general treasury rather than

the cigarette tax. In the complexities of modern society

and government, it is often impracticable to impose specific

taxes for a specific purpose. Yet the underlying principle

33. Id. at 13.

' 34. We consider it unnecessary to rebut any suggestion that the

Free Exercise Clause is inapplicable because nobody is required to

er cigarettes. No such suggestion is made in any of the briefs for

ismissal.

35. It is for that reason that the Virginia Statute states “that

even the forcing him to support this or that teacher of his own reli-

= persuasion, is depriving him of the comfortable liberty of giving

is contributions to the particular pastor, whose morals he would

make his pattern.” Jd. at 13.

26 Argument

is the same ; the compulsion is not eliminated simply because

no part of the taxpayer’s bill is earmarked to finance the

appropriation. This was recognized by the Virginia Snu-

preme Court in Almond v. Day®™ in its holding that the

state’s tuition law was unconstitutional on the ground,

among others, that it ‘‘compels taxpayers to contribute

money for the propagation of religious opinions which they

may not believe.’’

This, too, was implicitly recognized by the United

States Supreme Court in Flast v. Cohen." In that case the

Court quoted from Baker v. Carr * to the effect that stand-

ing depends on whether the plaintiff has alleged ‘‘a per-

sonal stake in the outcome of the controversy.’’ The Court

then held that every taxpayer in the United States has such

a personal stake to challenge a Federal expenditure out of

its general funds alleged to be in support of religious

schools and religious instruction. The reason for this is

that it is the plaintiff’s money, no matter how small in

amount, that is being used for the purpose. We submit that

it necessarily follows that even if the plaintiff is a general

taxpayer rather than, as in the present case, a member of a

specific class upon whom the tax is levied, he is being taxed

to support religion and therefore has standing to assert the

Free Exercise Clause.

It is true that in Board of Education v. Ailen,” the

Court rejected a claim under the Free Exercise Clause in a

challenge to the constitutionality of the New York secular

textbook loan law. But that case is clearly distinguishable

for at least the following reasons:

—Since the Court held that the law did not involve the

use of public funds for the support of religious

36. See note 10, supra.

37. 392 U. S. 83, 99 (1968).

38. 369 U. S. 186, 204 (1962).

39. See note 7, supra at p. 249.

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Argument 27

schools or religious teaching, there obviously was no

violation of the Free Exercise Clause. In the present

case, of course, the funds are being used for the sup-

port of religious schools and religious teaching.

—The plaintiffs in that case were not taxpayers and

were not suing as such. They were members of a

local school board who sued because they were of the

opinion that by administering the law they would be

violating their oath to uphold the Constitution, and

if they refused to administer it they would be re-

moved from office.*°

—The Court pointed out in Allen that the plaintiffs

‘shave not contended that the New York law in any

way coerces them as individuals in the practice of

their religion.’’*’ In the present case the Complaint

(Paragraph 6) specifically alleges that it ‘‘is against

the religious conscience of each of the plaintiffs to be

forced by operation of the taxing power to contribute

to the propagation of religion . . .’’

Il. THE EQUAL PROTECTION CLAIM.

Paragraph 11 of the Complaint alleges that:

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 predominantly black, poor and inferior

and a private subsidized school system predominantly

white, affluent and superior.

40. Id. at 241 n. 5. .

41. Id. at 249. .

28 ~Argument

It is a fact, fully substantiated by many studies and

of which the Court may take judicial notice, that some

religious faiths have only a small percentage of blacks,

that the vast majority of blacks are Protestants, far fewer

are Catholics, and almost none are Jews. Hence if schools

of these faiths limit admission to adherents of their re.

spective faith the effect, although not the purpose, of sub-

sidizing such schools is to perpetuate racial segregation as

alleged in the Complaint.

Appellants had standing to raise this issue and the

lower Court should not have dismissed this Count of the

Complaint on the authority of its earlier opinion in Lemon

v. Kurtzman, 310 F, Supp. 35 (E. D, Pa. 1969).

In this Court’s opinion in Lemon v. Kurteman, the

racial claim was not passed upon or considered. But

Mr. Justice Brennan, in his concurring opinion, stated

expressly :

* * * Appellants allege that the nonpublic schools are

segregated in Pennsylvania by race and religion and

that the Act perpetuates and promotes the segrega-

tion of the races ‘‘with the ultimate result of pro-

moting two school systems in Pennsylvania—a public

school system predominantly black, poor and inferior

and a private subsidized school system predominantly _

white, affluent and superior.’’ * * * The District Court

held that appellants lacked standing to assert this

equal protection claim. In my view this was plain

error. (emphasis added)

Mr. Justice Brennan’s position, we respectfully sub-

mit, is more realistic and more in accord with current

constitutional principles and policies than the narrow view

of standing expressed by the District Court in Lemon.

42. Lemon, supra, note 3 at p. 2127.

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Argument 29

Considering the appellee Lemon alone, the Complaint

herein (and in Lemon) alleges that he is the parent of a

black child attending public school in Pennsylvania. It

is true that the Complaint does not allege that he sought

admission for the child in a nonpublic school and that ad-

mission was denied. But is that the sum total of Lemon’s

interest in the controversy? We respectfully submit that

it is not.

Appellee Lemon may well prefer not to send his child

to a school restricted to children of his faith, He may

well wish that the child be educated in-a school community

which truly reflects pluralistic America, a school in which

the child can live and learn together with children of all

religious faiths and of none. Does he not have an interest

that the public school which the child attends shall not

be made racially segregated by the state through the means

of subsidizing attendance at virtually all-white nonpublic

schools? Assuming that Lemon is a Catholic, may the

State of Pennsylvania force him to choose between sending

his child fo an all Catholic or an all black school? And

if it may not, does he not have standing to sue to prevent

it?

What is true of Lemon is also true of his white co-

appellees. The Complaint alleges that pupils in religious

schools must participate in religious instruction and wor-

ship. Suppose their consciences forbid this. Must they

sacrifice their religious freedom to avoid sending their

children to a racially segregated school?

It was not the purpose of those who founded Amer-

ica’s religious school systems that they should become

places of refuge for whites fleeing blacks. Nor is this

the purpose of the religious leaders who strive in a time

of mounting educational costs to maintain those systems.

And that is also not the purpose of the legislatures which

appropriate public funds for the support of religious

30 Argument

schools so that those schools may continue to exist. It ig,

however, unfortunately the purpose of many parents,

North and South, who send their children to nonpublic

schools. And it is an effect, and increasingly a primary

effect, of laws which appropriate tax-raised funds to sup.

port or subsidize attendance at such schools. .

The effect may well be even more serious. It is not

too much to suggest that the preservation of the egali-

tarian, multiracial and multireligious public school system

envisioned by its founders rests upon the outcome of the

intense struggle for governmental financing of nonpublic

schools. To the extent that the public schools, particularly

in urban areas, remain multiracial, the unfortunate ex-

planation is that almost all the white children attending

them are members of middle income families who simply

cannot afford to pay the tuition and other expenses in non-

public schools. These middle income white children are

the flesh and blood of a multiracial public school system.

Should the time come when through increasing govern-

mental support of nonpublic schools either directly or

through subsidization of attendance by tuition payments,

it will be economically feasible for white middle income

' parents to send their children to nonpublic schools, the

public school system will become the modern day equivalent

of the pre-public education charity school—an institution

for the children of the poor, most of whom will be mem-

bers of racial minorities. We will then end up with two

school systems—separate and unequal.

We submit that each of the appellees in this suit, as

well as all Americans, have vital interests in preventing

this from happening. Certainly, then, they have a con-

stitutionally protected interest that government shall not

actively participate through the use of its taxing and spend-

ing powers in such a tragic development. Therein lies

their standing to raise the Equal Protection Clause.

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Conclusion

CONCLUSION.

For the foregoing reasons, appellees request that the

judgment of the District Court holding Act 92 unconsti-

tutional, be affirmed.

Respectfully submitted,

TueoporE R. Mann,

Leo Prerrer,

Attorneys for Appellees.

~~