Norwood v. Harrison,
413 U.S. 455 (1973)

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U.S. Supreme Court

Norwood v. Harrison, 413 U.S. 455 (1973)

Norwood v. Harrison

No. 72-77

Argued February 20-21, 1973

Decided June 25, 1973

413 U.S. 455


A three-judge District Court sustained the validity of a Mississippi statutory program, begun in 1940, under which textbooks are purchased by the State and lent to students in both public and private schools, without reference to whether any participating private school has racially discriminatory policies. The number of private secular schools in Mississippi, with a virtually all-white student population, has greatly increased in recent years.


1. Private schools have the right to exist and to operate, Pierce v. Society of Sisters, 268 U. S. 510, but the State is not required by the Equal Protection Clause to provide assistance to private schools equivalent to that it provides to public schools without regard to whether the private schools discriminate on racial grounds. Pp. 413 U. S. 461-463.

2. Free textbooks, like tuition grants directed to students in private schools, are a form of tangible financial assistance benefiting the schools themselves, and the State's constitutional obligation requires it to avoid not only operating the old dual system of racially segregated schools but also providing tangible aid to schools that practice racial or other invidious discrimination. Pp. 413 U. S. 463-468.

3. Assistance carefully limited so as to avoid the prohibitions of the "effect" and "entanglement" tests may be confined to the secular functions of sectarian schools and does not substantially promote the religious mission of those schools in violation of the Establishment Clause. In this case, however, the legitimate educational function of private discriminatory schools cannot be isolated from their alleged discriminatory practices; discriminatory treatment exerts a pervasive influence on the entire educational process. Brown v. Board of Education, 347 U. S. 483. The Establishment Clause permits a greater degree of state assistance to sectarian schools than may be given to private schools which engage in discriminatory practices. Everson v. Board of Education, 330 U. S. 1, and Board of Education v. Allen, 392 U. S. 236, distinguished. Pp. 413 U. S. 468-470.

Page 413 U. S. 456

4. Proper injunctive relief can be granted without implying that all the private schools alleged to be receiving textbook aid have restrictive admission policies. The District Court can direct appellees to submit for approval a certification procedure whereby schools may apply for textbooks on behalf of pupils, affirmatively declaring admission policies and practices, and stating the number of their racially and religiously identifiable minority students, and other relevant data. Certification of eligibility will be subject to judicial re.view. Pp. 413 U. S. 470-471.

340 F.Supp. 1003, vacated and remanded.

BURGER, C.J., delivered the opinion of the Court, in which STEWART, WHITE, MARSHALL, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS and BRENNAN, JJ., concurred in the result.

Primary Holding

A state cannot provide funding to private schools that discriminate on the basis of race.


A Mississippi law provided that the state could loan textbooks to students in public and private schools. The law did not place restrictions on loaning textbooks to private schools that discriminated on the basis of race. After the program was started in 1940, many private schools were founded in Mississippi that had nearly an all-white student composition. A class action was brought by the parents of children in Mississippi schools to end this state program. They argued that the state was undermining the constitutionally required objective of desegregating public schools by supplying textbooks to private schools that served as a segregated alternative to public schools. The lower court rejected their arguments.



  • Warren Earl Burger (Author)
  • Potter Stewart
  • Byron Raymond White
  • Thurgood Marshall
  • Harry Andrew Blackmun
  • Lewis Franklin Powell, Jr.
  • William Hubbs Rehnquist

Since states may not constitutionally supply tuition grants to students at racially discriminatory private schools, they may not engage in a textbook lending program. There is no apparent difference between these two programs in terms of the Fourteenth Amendment. Textbooks essentially may be considered financial aid because the schools otherwise would have to pay for them. Financial aid to a school that discriminates can be interpreted as state support for the discrimination, which is clearly forbidden under the Constitution and also violates the principle that states may not accomplish what they cannot accomplish by giving private parties incentives to accomplish it for them. Even though the program has a benign purpose, this does not insulate it from being struck down because of its invidious effect.


  • William Orville Douglas (Author)
  • William Joseph Brennan, Jr.

Case Commentary

The state can be considered to encourage and facilitate segregation through its educational funding programs. Schools use this funding to pursue their goals, and withholding it would give the schools the incentive to be more inclusive. Even if the state did not intend to discriminate, the discriminatory effect is sufficient to find that it violated the Fourteenth Amendment.

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