New York's Education Law requires local public school
authorities to lend textbooks free of charge to all students in
grades seven to 12, including those in private schools. Appellant
school boards sought a declaration that the statutory requirement
was invalid as violative of the State and Federal Constitutions, an
order barring appellee Commissioner of Education from removing
appellants' members from office for failing to comply with it, and
an order preventing the use of state funds for the purchase of
textbooks to be lent to parochial students. The trial court held
the law unconstitutional under the First and Fourteenth Amendments
and entered summary judgment for appellants on the pleadings; the
Appellate Division reversed and ordered the complaint dismissed
since appellant school boards had no standing to attack the
statute, and the New York Court of Appeals held that appellants did
have standing, but that the statute did not violate the State or
Federal Constitution. The Court of Appeals said that the law was to
benefit all school children, without regard to the type of school
attended, that only textbooks approved by school authorities could
be loaned, and therefore the statute was "completely neutral with
respect to religion."
Held: The statute does not violate the Establishment or
the Free Exercise Clause of the First Amendment. Pp.
392 U. S.
241-249.
(1) The express purpose of the statute was the furtherance of
educational opportunities for the young, and the law merely makes
available to all children the benefits of a general program to lend
school books free of charge, and the financial benefit is to
parents and children, not to schools.
Everson v. Board of
Education, 330 U. S. 1. Pp.
392 U. S.
243-244.
(2) There is no evidence that religious books have been loaned,
and it cannot be assumed that school authorities are unable to
distinguish between secular and religious books, or that they will
not honestly discharge their duties to approve only secular books.
Pp.
392 U. S.
244-245.
Page 392 U. S. 237
(3) Parochial schools, in addition to their sectarian function,
perform the task of secular education, and, on the basis of this
meager record, the Court cannot agree with appellants that all
teaching in a sectarian school is religious, or that the
intertwining of secular and religious training is such that secular
textbooks furnished to students are, in fact, instrumental in
teaching religion. Pp.
392 U. S.
245-248.
(4) In the absence of specific evidence, and based solely on
judicial notice, it cannot be concluded that the statute results in
unconstitutional state involvement with religious instruction or
violates the Establishment Clause. P.
392 U. S.
248.
(5) Since appellants have not shown that the law coerces them in
any way in the practice of religion, there is no violation of the
Free Exercise Clause. Pp.
392 U. S.
248-249.
20 N.Y.2d 109, 228 N.E.2d 791, affirmed.
Page 392 U. S. 238
MR. JUSTICE WHITE delivered the opinion of the Court.
A law of the State of New York requires local public school
authorities to lend textbooks free of charge to all students in
grades seven through 12; students attending private schools are
included. This case presents the question whether this statute is a
"law respecting an establishment of religion, or prohibiting the
free exercise thereof," and so in conflict with the First and
Fourteenth Amendments to the Constitution, because it authorizes
the loan of textbooks to students attending parochial schools. We
hold that the law is not in violation of the Constitution.
Until 1965, § 701 of the Education Law of the State of New York
authorized public school boards to designate
Page 392 U. S. 239
textbooks for use in the public schools, to purchase such books
with public funds, and to rent or sell the books to public school
students. [
Footnote 1] In 1965,
the legislature amended § 701, basing the amendments on findings
that the
"public welfare and safety require that the state and local
communities give assistance to educational programs which are
important to our national defense and the general welfare of the
state. [
Footnote 2]"
Beginning with the 1966 1967 school year, local school boards
were required to purchase textbooks and lend them without
charge
"to all children residing in such district who are enrolled in
grades seven to twelve of a public or private school which complies
with the compulsory education law."
The books now loaned are
"textbooks which are designated for use in any public,
elementary or secondary schools of the state or are approved by any
boards of education,"
and which -- according to a 1966 amendment -- "a pupil is
required to use as a text for a semester or more in a particular
class in the school he legally attends." [
Footnote 3]
Page 392 U. S. 240
Appellant Board of Education of Central School District No. 1 in
Renesselaer and Columbia Counties, brought suit in the New York
courts against appellee James Allen. [
Footnote 4] The complaint alleged that § 701 violated both
the State and Federal Constitutions; that, if appellants, in
reliance on their interpretation of the Constitution, failed to
lend books to parochial school students within their counties,
appellee Allen would remove appellants from office, and that, to
prevent this, appellants were complying with the law and submitting
to their constituents a school budget including funds for books to
be lent to parochial school pupils. Appellants therefore sought a
declaration that § 701 was invalid, an order barring appellee Allen
from removing appellants from office for failing to comply with it,
and another order restraining him from apportioning state funds to
school districts for the purchase of textbooks to be lent to
parochial students. After answer, and upon cross-motions for
summary judgment, the trial court held the law unconstitutional
Page 392 U. S. 241
under the First and Fourteenth Amendments and entered judgment
for appellants. 51 Misc.2d 297, 273 N.Y.S.2d 239 (1966). The
Appellate Division reversed, ordering the complaint dismissed on
the ground that appellant school boards had no standing to attack
the validity of a state statute. 27 App.Div.2d 69, 276 N.Y.S.2d 234
(1966). On appeal, the New York Court of Appeals concluded by a 4-3
vote that appellants did have standing, [
Footnote 5] but, by a different 4-3 vote, held that §
701 was not in violation of either the State or the Federal
Constitution. 20 N.Y.2d 109, 228 N.E.2d 791, 281 N.Y.S.2d 799
(1967). The Court of Appeals said that the law's purpose was to
benefit all school children, regardless of the type of school they
attended, and that only textbooks approved by public school
authorities could be loaned. It therefore considered § 701
"completely neutral with respect to religion, merely making
available secular textbooks at the request of the individual
student, and asking no question about what school he attends."
Section 701, the Court of Appeals concluded, is not a law which
"establishes a religion or constitutes the use of public funds to
aid religious schools." 20 N.Y.2d at 117; 228 N.E.2d at 794, 795;
281 N.Y.S.2d at 805. We noted probable jurisdiction. 389 U.S. 1031
(1968).
Everson v. Board of Education, 330 U. S.
1 (1947), is the case decided by this Court that is most
nearly in
Page 392 U. S. 242
point for today's problem. New Jersey reimbursed parents for
expenses incurred in busing their children to parochial schools.
The Court stated that the Establishment Clause bars a State from
passing "laws which aid one religion, aid all religions, or prefer
one religion over another," and bars too any
"tax in any amount, large or small . . . levied to support any
religious activities or institutions, whatever they may be called,
or whatever form they may adopt to teach or practice religion."
330 U.S. at
330 U. S. 15-16.
Nevertheless, said the Court, the Establishment Clause does not
prevent a State from extending the benefits of state laws to all
citizens without regard for their religious affiliation and does
not prohibit
"New Jersey from spending tax raised funds to pay the bus fares
of parochial school pupils as a part of a general program under
which it pays the fares of pupils attending public and other
schools."
The statute was held to be valid even though one of its results
was that "children are helped to get to church schools," and
"some of the children might not be sent to the church schools if
the parents were compelled to pay their children's bus fares out of
their own pockets."
330 U.S. at
330 U. S. 17. As
with public provision of police and fire protection, sewage
facilities, and streets and sidewalks, payment of bus fares was of
some value to the religious school, but was nevertheless not such
support of a religious institution as to be a prohibited
establishment of religion within the meaning of the First
Amendment.
Everson and later cases have shown that the line
between state neutrality to religion and state support of religion
is not easy to locate.
"The constitutional standard is the separation of Church and
State. The problem, like many problems in constitutional law, is
one of degree."
Zorach v. Clauson, 343 U. S. 306,
343 U. S. 314
(1952).
See McGowan v. Maryland, 366 U.
S. 420 (1961). Based
Page 392 U. S. 243
on
Everson, Zorach, McGowan, and other cases,
Abington School District v. Schempp, 374 U.
S. 203 (1963), fashioned a test subscribed to by eight
Justices for distinguishing between forbidden involvements of the
State with religion and those contacts which the Establishment
Clause permits:
"The test may be stated as follows: what are the purpose and the
primary effect of the enactment? If either is the advancement or
inhibition of religion, then the enactment exceeds the scope of
legislative power as circumscribed by the Constitution. That is to
say that, to withstand the strictures of the Establishment Clause,
there must be a secular legislative purpose and a primary effect
that neither advances nor inhibits religion.
Everson v. Board
of Education. . . ."
374 U.S. at
374 U. S.
222.
This test is not easy to apply, but the citation of
Everson by the
Schempp Court to support its
general standard made clear how the
Schempp rule would be
applied to the facts of
Everson. The statute upheld in
Everson would be considered a law having "a secular
legislative purpose and a primary effect that neither advances nor
inhibits religion." We reach the same result with respect to the
New York law requiring school books to be loaned free of charge to
all students in specified grades. The express purpose of § 701 was
stated by the New York Legislature to be furtherance of the
educational opportunities available to the young. Appellants have
shown us nothing about the necessary effects of the statute that is
contrary to its stated purpose. The law merely makes available to
all children the benefits of a general program to lend school books
free of charge. Books are furnished at the request of the pupil and
ownership remains, at least technically, in the State. Thus, no
funds or books are furnished
Page 392 U. S. 244
to parochial schools, and the financial benefit is to parents
and children, not to schools. [
Footnote 6] Perhaps free books make it more likely that
some children choose to attend a sectarian school, but that was
true of the state-paid bus fares in
Everson, and does not
alone demonstrate an unconstitutional degree of support for a
religious institution. Of course, books are different from buses.
Most bus rides have no inherent religious significance, while
religious books are common. However, the language of § 701 does not
authorize the loan of religious books, and the State claims no
right to distribute religious literature. Although the books loaned
are those required by the parochial school for use in specific
courses, each book
Page 392 U. S. 245
loaned must be approved by the public school authorities; only
secular books may receive approval. The law was construed by the
Court of Appeals of New York as "merely making available secular
textbooks at the request of the individual student,"
supra, and the record contains no suggestion that
religious books have been loaned. Absent evidence, we cannot assume
that school authorities, who constantly face the same problem in
selecting textbooks for use in the public schools, are unable to
distinguish between secular and religious books, or that they will
not honestly discharge their duties under the law. In judging the
validity of the statute on this record, we must proceed on the
assumption that books loaned to students are books that are not
unsuitable for use in the public schools because of religious
content.
The major reason offered by appellants for distinguishing free
textbooks from free bus fares is that books, but not buses, are
critical to the teaching process, and, in a sectarian school, that
process is employed to teach religion. However. this Court has long
recognized that religious schools pursue two goals, religious
instruction and secular education. In the leading case of
Pierce v. Society of Sisters, 268 U.
S. 510 (1925), the Court held that, although it would
not question Oregon's power to compel school attendance or require
that the attendance be at an institution meeting State-imposed
requirements as to quality and nature of curriculum, Oregon had not
shown that its interest in secular education required that all
children attend publicly operated schools. A premise of this
holding was the view that the State's interest in education would
be served sufficiently by reliance on the secular teaching that
accompanied religious training in the schools maintained by the
Society of Sisters. Since
Pierce, a substantial body of
case law has confirmed the power of the States to insist that
attendance at private schools, if it is to satisfy state compulsory
attendance
Page 392 U. S. 246
laws, be at institutions which provide minimum hours of
instruction, employ teachers of specified training, and cover
prescribed subjects of instruction. [
Footnote 7] Indeed, the State's interest in assuring that
these standards are being met has been considered a sufficient
reason for refusing to accept instruction at home as compliance
with compulsory
Page 392 U. S. 247
education statutes. [
Footnote
8] These cases were a sensible corollary of
Pierce v.
Society of Sisters: if the State must satisfy its interest in
secular education through the instrument of private schools, it has
a proper interest in the manner in which those schools perform
their secular educational function. Another corollary was
Cochran v. Louisiana State Board of Education,
281 U. S. 370
(1930), where appellants said that a statute requiring school books
to be furnished without charge to all students, whether they
attended public or private schools, did not serve a "public
purpose," and so offended the Fourteenth Amendment. Speaking
through Chief Justice Hughes, the Court summarized as follows its
conclusion that Louisiana's interest in the secular education being
provided by private schools made provision of textbooks to students
in those schools a properly public concern:
"[The State's] interest is education, broadly; its method,
comprehensive. Individual interests are aided only as the common
interest is safeguarded."
281 U.S. at
281 U. S.
375.
Underlying these cases, and underlying also the legislative
judgments that have preceded the court decisions, has been a
recognition that private education has played and is playing a
significant and valuable role in raising national levels of
knowledge, competence, and experience. Americans care about the
quality of the secular education available to their children. They
have considered high quality education to be an indispensable
ingredient for achieving the kind of nation, and the kind of
citizenry, that they have desired to create. Considering this
attitude, the continued willingness to rely on private school
systems, including parochial systems, strongly suggests
Page 392 U. S. 248
that a wide segment of informed opinion, legislative and
otherwise, has found that those schools do an acceptable job of
providing secular education to their students. [
Footnote 9] This judgment is further evidence that
parochial schools are performing, in addition to their sectarian
function, the task of secular education.
Against this background of judgment and experience, unchallenged
in the meager record before us in this case, we cannot agree with
appellants either that all teaching in a sectarian school is
religious or that the processes of secular and religious training
are so intertwined that secular textbooks furnished to students by
the public are, in fact, instrumental in the teaching of religion.
This case comes to us after summary judgment entered on the
pleadings. Nothing in this record supports the proposition that all
textbooks, whether they deal with mathematics, physics, foreign
languages, history, or literature, are used by the parochial
schools to teach religion. No evidence has been offered about
particular schools, particular courses, particular teachers, or
particular books. We are unable to hold, based solely on judicial
notice, that this statute results in unconstitutional involvement
of the State with religious instruction, or that § 701, for this or
the other reasons urged, is a law respecting the establishment of
religion within the meaning of the First Amendment.
Appellants also contend that § 701 offends the Free Exercise
Clause of the First Amendment. However,
"it is necessary in a free exercise case for one to show the
Page 392 U. S. 249
coercive effect of the enactment as it operates against him in
the practice of his religion,"
Abington School District v. Schempp, 374 U.
S. 203,
374 U. S. 223
(1963), and appellants have not contended that the New York law in
any way coerces them as individuals in the practice of their
religion.
The judgment is affirmed.
[
Footnote 1]
New York Sess.Laws 1950, c. 239, § 1. New York Education Law §
703, New York Sess.Laws 1950, c. 239, § 3, permitted the qualified
voters of any school district to authorize a special tax for the
purpose of making available free textbooks. The 1965 amendments
that required free textbooks to be provided for grades seven
through 12 amended § 703 so that it now permits local voters to
approve free books for grades one through six.
[
Footnote 2]
New York Sess.Laws 1965, c. 320, § 1.
[
Footnote 3]
New York Education Law § 701 (1967 Supp.):
"1. In the several cities and school districts of the state,
boards of education, trustees or such body or officer as perform
the functions of such boards, shall designate textbooks to be used
in the schools under their charge."
"2. A textbook, for the purposes of this section, shall mean a
book which a pupil is required to use as a text for a semester or
more in a particular class in the school he legally attends."
"3. In the several cities and school districts of the state,
boards of education, trustees or such body or officers as perform
the function of such boards shall have the power and duty to
purchase and to loan upon individual request, to all children
residing in such district who are enrolled in grades seven to
twelve of a public or private school which complies with the
compulsory education law, textbooks. Textbooks loaned to children
enrolled in grades seven to twelve of said private schools shall be
textbooks which are designated for use in any public, elementary or
secondary schools of the state or are approved by any boards of
education, trustees or other school authorities. Such textbooks are
to be loaned free to such children subject to such rules and
regulations as are or may be prescribed by the board of regents and
such boards of education, trustees or other school
authorities."
The present subdivision 2 was added by amendment in 1966, New
York Sess.Laws 1966, c. 795. This suit was filed, and the trial
court opinion was rendered, prior to the 1966 amendment.
[
Footnote 4]
Intervention was permitted on plaintiffs' side by the Board of
Education of Union Free School District No. 3 in Nassau County,
which appears here as co appellant, and on defendants' side by
parents of certain students attending private schools, who appear
here as co appellees.
[
Footnote 5]
Appellees do not challenge the standing of appellants to press
their claim in this Court. Appellants have taken an oath to support
the United States Constitution. Believing § 701 to be
unconstitutional, they are in the position of having to choose
between violating their oath and taking a step -- refusal to comply
with § 701 -- that would be likely to bring their expulsion from
office and also a reduction in state funds for their school
districts. There can be no doubt that appellants thus have a
"personal stake in the outcome" of this litigation.
Baker v.
Carr, 369 U. S. 186,
369 U. S. 204
(1962).
[
Footnote 6]
While the record and the state court opinions in this case
contained no information about how the books are, in fact,
transferred from the Boards of Education to individual students,
both parties suggested in their briefs and on oral argument before
this Court that New York permits private schools to submit to
boards of education summaries of the requests for textbooks filed
by individual students, and also permits private schools to store
on their premises the textbooks being loaned by the Board of
Education to the students. This interpretation of the State's
administrative procedure is supported by an "Opinion of Counsel"
made available by the Board of Regents and the State Department of
Education to local school superintendents. For purposes of this
case, we consider the New York statute to permit these procedures.
So construing the statute, we find it in conformity with the
Constitution, for the books are furnished for the use of individual
students, and at their request.
It should be noted that the record contains no evidence that any
of the private schools in appellants' districts previously provided
textbooks for their students. There is some evidence that at least
some of the schools did not: intervenor defendants asserted that
they had previously purchased all their children's textbooks.
And see statement of then Commissioner of Education
Keppel: "Nonpublic schools rarely provide free textbooks." Hearings
on Elementary and Secondary Education Act of 1965 before General
Subcommittee on Education of House Committee on Education and
Labor, 89th Cong., 1st Sess., Pt. 1, 93 (1965).
[
Footnote 7]
This Court has twice suggested the constitutionality of these
state regulations.
"[T]he State may 'require teaching by instruction and study of
all in our history and in the structure and organization of our
government, including the guaranties of civil liberty, which tend
to inspire patriotism and love of country.'"
West Virginia State Board of Education v. Barnette,
319 U. S. 624,
319 U. S. 631
(1943), quoting
Minersville School District v. Gobitis,
310 U. S. 586,
310 U. S. 604
(1940) (Stone, J., dissenting).
"This Court has said that parents may, in the discharge of their
duty under state compulsory education laws, send their children to
a religious, rather than a public, school if the school meets the
secular educational requirements which the state has power to
impose."
Everson v. Board of Education, 330 U. S.
1,
330 U. S. 18
(1947) (citing
Pierce v. Society of Sisters). A great many
state cases have upheld a wide range of private school regulation.
E.g., Meyekorth v. State, 173 Neb. 889,
115 N.W.2d
585 (1962),
appeal dismissed for want of a substantial
federal question, 372 U. S. 705
(1963);
State v. Hoyt, 84 N.H. 38, 146 A. 170 (1929);
People v. Donner, 199 Misc. 643, 99 N.Y.S.2d 830
(Dom.Rel.Ct.1950),
aff'd mem., 278 App.Div. 705, 103
N.Y.S.2d 757,
aff'd mem., 302 N.Y. 857, 100 N.E.2d 48,
appeal dismissed for want of a substantial federal
question, 342 U. S. 884
(1951).
New York State regulates private schools extensively, especially
as to attendance and curriculum. New York Education Law §§
3201-3229 (1953). Regents examinations are given to private school
students.
Id. § 209. The basic requirement is that the
instruction given in private schools satisfying the compulsory
attendance law be
"at least substantially equivalent to the instruction given to
minors of like age and attainments at the public schools of the
city or district where the minor resides."
Id. § 3204 subd. 2.
New York requires school attendance of "each minor from seven to
sixteen years of age" unless he has completed high school.
Id. § 3205.
[
Footnote 8]
E.g., People v. Turner, 121 Cal. App. 2d 861, 263 P.2d
685 (1953),
appeal dismissed for want of a substantial federal
question, 347 U.S. 972 (1954).
[
Footnote 9]
In 1965-1966 in New York State, over 900,000 students, or 22.2%
of total state enrollment, attended nonpublic schools. University
of State of New York, Education Statistics Estimates 1966-67, Table
I (1966). The comparable statistic for the Nation was at least 10%.
United States Bureau of the Census, Statistical Abstract of the
United States: 1967, at 111 (1967).
MR. JUSTICE HARLAN, concurring.
Although I join the opinion and judgment of the Court, I wish to
emphasize certain of the principles which I believe to be central
to the determination of this case, and which I think are implicit
in the Court's decision.
The attitude of government toward religion must, as this Court
has frequently observed, be one of neutrality. Neutrality is,
however, a coat of many colors. It requires that
"government neither engage in nor compel religious practices,
that it effect no favoritism among sects or between religion and
nonreligion, and that it work deterrence of no religious
belief."
Abington School District v. Schempp, 374 U.
S. 203,
374 U. S. 305
(concurring opinion of Goldberg, J.). Realization of these
objectives entails "no simple and clear measure,"
id. at
374 U. S. 306,
by which this or any case may readily be decided, but these
objectives do suggest the principles which I believe to be
applicable in the present circumstances. I would hold that, where
the contested governmental activity is calculated to achieve
nonreligious purposes otherwise within the competence of the State,
and where the activity does not involve the State "so significantly
and directly in the realm of the sectarian as to give rise to . . .
divisive influences and inhibitions of freedom,"
id. at
374 U. S. 307,
it is not forbidden by the religious clauses of the First
Amendment.
Page 392 U. S. 250
In my opinion, § 701 of the Education Law of New York does not
employ religion as its standard for action or inaction, and is not
otherwise inconsistent with these principles.
MR. JUSTICE BLACK, dissenting.
The Court here affirms a judgment of the New York Court of
Appeals which sustained the constitutionality of a New York law
providing state tax raised funds to supply school books for use by
pupils in schools owned and operated by religious sects. I believe
the New York law held valid is a flat, flagrant, open violation of
the First and Fourteenth Amendments which, together, forbid
Congress or state legislatures to enact any law "respecting an
establishment of religion." For that reason I would reverse the New
York Court of Appeals' judgment. This, I am confident, would be in
keeping with the deliberate statement we made in
Everson v.
Board of Education, 330 U. S. 1,
330 U. S. 15-16
(1947), and repeated in
McCollum v. Board of Education,
333 U. S. 203,
333 U. S.
210-211 (1948), that:
"Neither a state nor the Federal Government can set up a church.
Neither can pass laws which aid one religion, aid all religions, or
prefer one religion over another. Neither can force nor influence a
person to go to or to remain away from church against his will or
force him to profess a belief or disbelief in any religion. No
person can be punished for entertaining or professing religious
beliefs or disbeliefs, for church attendance or non-attendance. No
tax in any amount, large or small, can be levied to support any
religious activities or institutions, whatever they may be called,
or whatever form they may adopt to teach or practice religion.
Neither a state nor the Federal Government can, openly or secretly,
participate in the affairs of any religious
Page 392 U. S. 251
organizations or groups, and vice versa. In the words of
Jefferson, the clause against establishment of religion by law was
intended to erect 'a wall of separation between church and
State.'"
The
Everson and
McCollum cases plainly
interpret the First and Fourteenth Amendments as protecting the
taxpayers of a State from being compelled to pay taxes to their
government to support the agencies of private religious
organizations the taxpayers oppose. To authorize a State to tax its
residents for such church purposes is to put the State squarely in
the religious activities of certain religious groups that happen to
be strong enough politically to write their own religious
preferences and prejudices into the laws. This links state and
churches together in controlling the lives and destinies of our
citizenship -- a citizenship composed of people of myriad religious
faiths, some of them bitterly hostile to and completely intolerant
of the others. It was to escape laws precisely like this that a
large part of the Nation's early immigrants fled to this country.
It was also to escape such laws and such consequences that the
First Amendment was written in language strong and clear barring
passage of any law "respecting an establishment of religion."
It is true, of course, that the New York law does not, as yet,
formally adopt or establish a state religion. But it takes a great
stride in that direction, and coming events cast their shadows
before them. The same powerful sectarian religious propagandists
who have succeeded in securing passage of the present law to help
religious schools carry on their sectarian religious purposes can,
and doubtless will, continue their propaganda, looking toward
complete domination and supremacy of their particular brand of
religion. [
Footnote 2/1] And it
nearly always is
Page 392 U. S. 252
by insidious approaches that the citadels of liberty are most
successfully attacked. [
Footnote
2/2]
I know of no prior opinion of this Court upon which the majority
here can rightfully rely to support its holding this New York law
constitutional. In saying this, I am not unmindful of the fact that
the New York Court of Appeals purported to follow
Everson v.
Board of Education, supra, in which this Court, in an opinion
written by me, upheld a New Jersey law authorizing reimbursement to
parents for the transportation of children attending sectarian
schools. That law did not attempt to deny the benefit of its
general terms to children of any faith going to any legally
authorized school. Thus, it was treated in the same way as a
general law paying the streetcar fare
of all school
children, or a law providing midday lunches for all children
or all school children, or a law to provide police protection for
children going to and from school, or general laws to provide
police and fire protection for buildings, including, of course,
churches and church school buildings as well as others.
As my Brother DOUGLAS so forcefully shows, in an argument with
which I fully agree, upholding a State's power to pay bus or
streetcar fares for school children cannot provide support for the
validity of a state law using tax raised funds to buy school books
for a religious school. The First Amendment's bar to establishment
of religion must preclude a State from using funds levied from all
of its citizens to purchase books for use by sectarian schools,
which, although "secular," realistically will in some way
inevitably tend to propagate the religious views of the favored
sect. Books are the most essential tool of education, since they
contain the resources of knowledge which the educational process is
designed to exploit. In this sense, it is not difficult
Page 392 U. S. 253
to distinguish books, which are the heart of any school, from
bus fares, which provide a convenient and helpful general public
transportation service. With respect to the former, state financial
support actively and directly assists the teaching and propagation
of sectarian religious viewpoints in clear conflict with the First
Amendment's establishment bar; with respect to the latter, the
State merely provides a general and nondiscriminatory
transportation service in no way related to substantive religious
views and beliefs.
This New York law, it may be said by some, makes but a small
inroad, and does not amount to complete state establishment of
religion. But that is no excuse for upholding it. It requires no
prophet to foresee that, on the argument used to support this law,
others could be upheld providing for state or federal government
funds to buy property on which to erect religious school buildings
or to erect the buildings themselves, to pay the salaries of the
religious school teachers, and finally to have the sectarian
religious groups cease to rely on voluntary contributions of
members of their sects while waiting for the Government to pick up
all the bills for the religious schools. Arguments made in favor of
this New York law point squarely in this direction, namely, that
the fact that government has not heretofore aided religious schools
with tax raised funds amounts to a discrimination against those
schools and against religion. And that there are already efforts to
have government supply the money to erect buildings for sectarian
religious schools is shown by a recent Act of Congress which
apparently allows for precisely that.
See Higher Education
Facilities Act of 1963, 77 Stat. 363, 20 U.S.C. § 701
et
seq.
I still subscribe to the belief that tax raised funds cannot
constitutionally be used to support religious schools, buy their
school books, erect their buildings, pay their
Page 392 U. S. 254
teachers, or pay any other of their maintenance expenses, even
to the extent of one penny. The First Amendment's prohibition
against governmental establishment of religion was written on the
assumption that state aid to religion and religious schools
generates discord, disharmony, hatred, and strife among our people,
and that any government that supplies such aids is, to that extent,
a tyranny. And I still believe that the only way to protect
minority religious groups from majority groups in this country is
to keep the wall of separation between church and state high and
impregnable as the First and Fourteenth Amendments provide. The
Court's affirmance here bodes nothing but evil to religious peace
in this country.
[
Footnote 2/1]
See dissenting opinion of MR. JUSTICE DOUGLAS,
post, p.
392 U. S.
254.
[
Footnote 2/2]
See Boyd v. United States, 116 U.
S. 616.
MR. JUSTICE DOUGLAS, dissenting.
We have for review a statute which authorizes New York State to
supply textbooks to students in parochial, as well as in public,
schools. The New York Court of Appeals sustained the law on the
grounds that it involves only "secular textbooks," and that that
type of aid falls within
Everson v. Board of Education,
330 U. S. 1,
[
Footnote 3/1] where a divided
Court upheld a state law which made bus service available to
students in parochial schools, as well as to students in public
schools. 20 N.Y.2d 109, 228 N.E.2d 791, 281 N.Y.S.2d 799.
The statute, on its face, empowers each parochial school to
determine for itself which textbooks will be eligible for loans to
its students, for the Act provides that the
Page 392 U. S. 255
only text which the State may provide is "a book which a pupil
is required to use as a text for a semester or more in a particular
class in the school he legally attends." New York Education Law §
701, subd. 2. This initial and crucial selection is undoubtedly
made by the parochial school's principal or its individual
instructors, who are, in the case of Roman Catholic schools,
normally priests or nuns.
The next step under the Act is an "individual request" for an
eligible textbook (§ 701, subd. 3), but the State Education
Department has ruled that a pupil may make his request to the local
public board of education through a "private school official."
[
Footnote 3/2] Local boards have
accordingly provided for those requests to be made by the
individual or "by groups or classes." [
Footnote 3/3] And forms for textbook requisitions to be
filled out by the head of the private school are provided.
[
Footnote 3/4]
The role of the local public school board is to decide whether
to veto the selection made by the parochial school. This is done by
determining first whether the text has been or should be "approved"
for use in public schools, and, second, whether the text is
"secular," "nonreligious," or "nonsectarian." [
Footnote 3/5] The local boards apparently
Page 392 U. S. 256
have broad discretion in exercising this veto power. [
Footnote 3/6]
Thus, the statutory system provides that the parochial school
will ask for the books that it wants. Can there be the slightest
doubt that the head of the parochial school will select the book or
books that best promote its sectarian creed?
If the board of education supinely submits by approving and
supplying the sectarian or sectarian-oriented textbooks, the
struggle to keep church and state separate has been lost. If the
board resists, then the battle line between church and state will
have been drawn, and the contest will be on to keep the school
board independent or to put it under church domination and
control.
Page 392 U. S. 257
Whatever may be said of
Everson, there is nothing
ideological about a bus. There is nothing ideological about a
school lunch, or a public nurse, or a scholarship. The
constitutionality of such public aid to students in parochial
schools turns on considerations not present in this textbook case.
The textbook goes to the very heart of education in a parochial
school. It is the chief, although not solitary, instrumentality for
propagating a particular religious creed or faith. How can we
possibly approve such state aid to a religion? A parochial school
textbook may contain many, many more seeds of creed and dogma than
a prayer. Yet we struck down in
Engel v. Vitale,
370 U. S. 421, an
official New York prayer for its public schools, even though it was
not plainly denominational. For we emphasized the violence done the
Establishment Clause when the power was given religious-political
groups "to write their own prayers into law."
Id. at
370 U. S. 427.
That risk is compounded here by giving parochial schools the
initiative in selecting the textbooks they desire to be furnished
at public expense.
Judge Van Voorhis, joined by Chief Judge Fuld and Judge Breitel,
dissenting below, said that the difficulty with the textbook loan
program "is that there is no reliable standard by which secular and
religious textbooks
Page 392 U. S. 258
can be distinguished from each other." 20 N.Y.2d at 122, 228
N.E.2d at 798, 281 N.Y.S.2d at 809. The New York Legislature felt
that science was a nonsectarian subject (
see 392
U.S. 236fn3/5|>n. 5,
supra). Does this mean that
any general science textbook intended for use in grades 7-12 may be
provided by the State to parochial school students? May John M.
Scott's Adventures in Science (1963) be supplied under the textbook
loan program? This book teaches embryology in the following
manner:
"To you, an animal usually means a mammal, such as a cat, dog,
squirrel, or guinea pig. The new animal, or embryo, develops inside
the body of the mother until birth. The fertilized egg becomes an
embryo, or developing animal. Many cell divisions take place. In
time, some cells become muscle cells, others nerve cells or blood
cells, and organs such as eyes, stomach, and intestine are
formed."
"The body of a human being grows in the same way, but it is much
more remarkable than that of any animal, for the embryo has a human
soul infused into the body by God. Human parents are partners with
God in creation. They have very great powers and great
responsibilities, for, through their cooperation with God, souls
are born for heaven."
(At 618-619.) [
Footnote 3/7]
Comparative economics would seem to be a nonsectarian subject.
Will New York, then, provide Arthur J. Hughes' general history
text, Man in Time (1964), to
Page 392 U. S. 259
parochial school students? It treats that topic in this
manner:
"Capitalism is an economic system based on man's right to
private property and on his freedom to use that property in
producing goods which will earn him a just profit on his
investment. Man's right to private property stems from the Natural
Law implanted in him by God. It is as much a part of man's nature
as the will to self-preservation."
(At 560.)
"The broadest definition of socialism is government ownership of
all the means of production and distribution in a country. . . .
Many, but by no means all, Socialists in the nineteenth century
believed that crime and vice existed because poverty existed, and,
if poverty were eliminated, then crime and vice would disappear.
While it is true that poor surroundings are usually unhealthy
climates for high moral training, still, man has the free will to
check himself. Many Socialists, however, denied free will, and said
that man was a creation of his environment. . . . If Socialists do
not deny Christ's message, they often ignore it. Christ showed us
by His life that this earth is a testing ground to prepare man for
eternal happiness. Man's interests should be in this direction at
least part of the time, and not always directed toward a futile
quest for material goods."
(At 561-564.) [
Footnote 3/8]
Mr. Justice Jackson said,
". . . I should suppose it is a proper, if not an indispensable,
part of preparation for a
Page 392 U. S. 260
worldly life to know the roles that religion and religions have
played in the tragic story of mankind."
McCollum v. Board of Education, 333 U.
S. 203,
333 U. S. 236
(concurring opinion). Yet, as he inquired, what emphasis should one
give who teaches the Reformation, the Inquisition, or the early
effort in New England to establish "
a Church without a Bishop
and a State without a King?'" Ibid. What books should be
chosen for those subjects?
Even where the treatment given to a particular topic in a school
textbook is not blatantly sectarian, it will necessarily have
certain shadings that will lead a parochial school to prefer one
text over another. [
Footnote
3/9]
The Crusades, for example, may be taught as a Christian
undertaking to "save the Holy Land" from the Moslem Turks who
"became a threat to Christianity and its holy places," which "they
did not treat . . . with respect"
Page 392 U. S. 261
(H. Wilson, F. Wilson, B. Erb & E. Clucas, Out of the Past
284 (1954)), or as essentially a series of wars born out of
political and materialistic motives (
see G. Leinwand, The
Pageant of World History 136-137 (1965)).
Is the dawn of man to be explained in the words, "God created
man and made man master of the earth" (P. Furlong, The Old World
and America 5 (1937)), or in the language of evolution
(
see T. Wallbank, Man's Story 3235 (1961))?
Is the slaughter of the Aztecs by Cortes and his entourage to be
lamented for its destruction of a New World culture (
see
J. Caughey, J. Franklin, & E. May, Land of the Free 27-28
(1965)), or forgiven because the Spaniards "carried the true Faith"
to a barbaric people who practiced human sacrifice (
see P.
Furlong, Sr. Margaret, & D. Sharkey, America Yesterday 17, 34
(1963))?
Is Franco's revolution in Spain to be taught as a crusade
against anti-Catholic forces (
see R. Hoffman, G.
Vincitorio, & M. Swift, Man and His History 666-667 (1958))
[
Footnote 3/10] or as an effort
by reactionary elements to regain control of that country
(
see G. Leinwand, the Pageant of World History,
supra at 512)? [
Footnote
3/11] Is the expansion of
Page 392 U. S. 262
communism in select areas of the world a manifestation of the
forces of Evil campaigning against the forces of Good?
See
A. Hughes, Man in Time,
supra, at 565-568, 666 669,
735-748.
It will be often difficult, as Mr. Justice Jackson said, to say
"where the secular ends and the sectarian begins in education."
McCollum v. Board of Education, 333 U.S. at
333 U. S.
237-238. But certain it is that, once the so-called
"secular" textbook is the prize to be won by that religious faith
which selects the book, the battle will be on for those positions
of control. Judge Van Voorhis expressed the fear that, in the end,
the state might dominate the church. Others fear that one sectarian
group, gaining control of the state agencies which approve the
"secular" textbooks, will use their control to disseminate ideas
most congenial to their faith. It must be remembered that the very
existence of the religious school -- whether Catholic or Mormon,
Presbyterian or Episcopalian -- is to provide an education oriented
to the dogma of the particular faith. [
Footnote 3/12]
Page 392 U. S. 263
Father Peter O'Reilly put the matter succinctly when he
disclosed what was happening in one Catholic school: [
Footnote 3/13]
"On February 24, 1954, Rev. Cyril F. Meyer, C. M., then
Vice-President of the University, sent the following letter to all
the faculty, both Catholics and non-Catholics, even those teaching
law, science, and mathematics: "
"Dear Faculty Member: "
"As a result of several spirited discussions in the Academic
Senate, a resolution was passed by that body that a self-evaluation
be made of the effectiveness with which we are achieving in our
classrooms the stated objectives of the University. . . . The
primacy of the spiritual is the reason for a Christian university.
Our goal is not merely to equip students with marketable skills. It
is far above this -- to educate man, the whole man, the theocentric
man. As you are well aware, we strive to educate not only for
personal and social success in secular society, but far more for
leadership toward a theocentric society. . . . "
Page 392 U. S. 264
"May I, therefore, respectfully request that you submit answers
as specific as possible to the following questions: "
"1. What do you do to make your particular courses
theocentric?"
"2. Do you believe there is anything the Administration or your
colleagues can do to assist you in presenting your particular
courses more 'according to the philosophical and theological
traditions of the Roman Catholic Church'? Do not hesitate to let us
know. There is no objective of our University more fundamental than
this. We must all be aware that 'the classroom that is not a temple
is a den.'"
"Please try to have your answers, using this size paper,
returned to me by March 10."
This tendency is no Catholic monopoly:
"The Presbyterian-affiliated Lewis and Clark College seems to
have a similar interest in appearances of autonomy, with a view to
avoiding possible legal bars to both federal funds and gifts from
some foundations. The change, which legitimizes the college as an
autonomous educational institution, removes the requirement that
each presbytery in Oregon have at least one representative on the
board, but it was made clear 'The college wishes to change
only
its legal relationship to the synod, and
not its
purposes,' and promised that it still will elect a minister
from each presbytery to the board on nomination of the synod, and
will consult the synod before making any change in its statement of
purpose, which defines it as a Presbyterian-related college.
[
Footnote 3/14]"
The challenged New York law leaves to the Board of Regents,
local boards of education, trustees, and other school authorities
the supervision of the textbook program.
Page 392 U. S. 265
The Board of Regents (together with the Commissioner of
Education) has powers of censorship over all textbooks that contain
statements seditious in character or evince disloyalty to the
United States or are favorable to any nation with which we are at
war. New York Education Law § 704. Those powers can cut a wide
swath in many areas of education that involve the ideological
element. [
Footnote 3/15]
In general, textbooks are approved for distribution by "boards
of education, trustees or such body or officer as perform the
functions of such boards. . . ." New York Education Law § 701,
subd. 1. These school boards are generally elected, §§ 2013, 2502,
subd. 2, though, in a few cities, they are appointed. § 2553. Where
there are trustees, they are elected. § 1523, 1602, 1702. And
superintendents who advise on textbook selection are appointed by
the board of education or the trustees. §§ 1711, 2503, subd. 5,
2507.
The initiative to select and requisition "the books desired" is
with the parochial school. Powerful religious-political pressures
will therefore be on the state agencies to provide the books that
are desired.
These, then, are the battlegrounds where control of textbook
distribution will be won or lost. Now that "secular" textbooks will
pour into religious schools, we can rest assured that a contest
will be on [
Footnote 3/16] to
provide those books for religious schools which the dominant
religious group concludes best reflect the theocentric or other
philosophy of the particular church.
Page 392 U. S. 266
The stakes are now extremely high -- just as they were in the
school prayer cases (
see Engel v. Vitale, supra) -- to
obtain approval of what is "proper." For the "proper" books will
radiate the "correct" religious view not only in the parochial
school, but in the public school as well.
Even if I am wrong in that basic premise, we still should not
affirm the judgment below. Judge Van Voorhis, dissenting in the New
York Court of Appeals, thought that the result of tying parochial
school textbooks to public funds would be to put nonsectarian books
into religious schools, which, in the long view, would tend towards
state domination of the church. 20 N.Y.2d at 123, 228 N.E.2d at
798, 281 N.Y.S.2d at 810. T hat would, indeed, be the result if the
school boards did not succumb to "sectarian" pressure or control.
So however the case be viewed -- whether sectarian groups win
control of school boards or do not gain such control -- the
principle of separation of church and state, inherent in the
Establishment Clause of the First Amendment, is violated by what we
today approve.
What Madison wrote in his famous Memorial and Remonstrance
against Religious Assessments is highly pertinent here: [
Footnote 3/17]
"Who does not see that the same authority which can establish
Christianity, in exclusion of all other Religions, may establish
with the same ease any particular sect of Christians, in exclusion
of all other Sects? That the same authority which can force a
citizen to contribute three pence only of his property for the
support of any one establishment, [
Footnote 3/18] may force him to conform to any other
establishment in all cases whatsoever? "
Page 392 U. S. 267
|
392
U.S. 236appa|
APPENDIX A TO OPINION OF
DOUGLAS, J., DISSENTING
"CODE-220-399-2-NYSTL REQ. NUMBER _______"
"
TEXTBOOK REQUISITION"
"PUBLISHERS NAME _________________"
"STREET ADDRESS ___________________"
"CITY AND STATE ___________________"
"SHIP TO -- EDISON WAREHOUSE "
"STREET -- VAN GUYSLING AVE."
"CITY & STATE -- SCHENECTADY, N.Y."
"----------------------------------------------------"
"No. COPIES ____ NAME OF BOOK _____________TOTAL ____"
"EDITION _____________"
"GRADE LEVEL _________"
"PRICE PER BOOK ______ ____________"
"Total Amount"
"I certify that the following number of children residing in
your school district have individually requested the loan of the
textbook indicated above for the school year 1967-68 in accordance
with Section 701, subdivision 2, of the Education Law. Form 1
requests have been submitted to you for each child. I also certify
that the textbook requested is a nonsectarian edition and approved
for use by a New York State Public School District."
"________________________________
______________________________"
"Name of Parochial/Private School Official of Private
School"
Page 392 U. S. 268
|
392
U.S. 236appb|
APPENDIX B TO OPINION OF
DOUGLAS, J., DISSENTING
LETTER OF FRANCIS CARDINAL SPELLMAN,
NOVEMBER 1, 1967
One of the most precious rights which we have in our civil
society is the right to vote. This right should be exercised with
reverence and with understanding -- particularly when emotional
feelings run high.
An important opportunity to exercise this right will be provided
on next Tuesday, November 7th. On that day, we are asked to choose
between the old State Constitution and the proposed new State
Constitution. We will decide whether the provisions of the new
Constitution will better serve the changing needs of our families,
our neighbors, and our institutions, both public and private.
We are faced with a grave responsibility to weigh this choice
carefully and to vote conscientiously. I have viewed with concern
the tone of the past month's discussion with regard to the proposed
new Constitution. I am disappointed that so much of the opposition
to the Constitution comes from those forces in our pluralistic
society who would deny equal educational opportunities to children
attending parochial schools. As a citizen, I am dismayed to think
that they would have overwhelmingly supported the new Constitution
were it not for the fact that it repeals the Blaine Amendment.
The proposed new Constitution, as a whole, is so closely related
to our lives that it must command our careful consideration. This
document addresses itself to values basic to the fulfillment of our
lives as citizens. We must be aware that this Constitution contains
new provisions designed to facilitate the rebuilding of our
communities, new provisions committing the State to the
Page 392 U. S. 269
maximum development of the educational potential of every
citizen, new provisions enabling government, in a responsible way,
to mobilize all the forces of society to meet the changing needs of
all our people, to enhance their environment and to promote their
social wellbeing.
At the close of the Constitutional Convention, I expressed my
opinion that the Convention had produced a document worthy of
support by the people of New York State. Nothing in the public
debate since then has caused me to alter my judgment.
I know that you will conscientiously fulfill your civic duty,
and that you will give serious consideration to this proposed new
Constitution.
*
* One parochial school lobbyist group has urged Congress that,
in order to avoid an establishment of secularism in education,
federal monies must be distributed to all the various sects which
operate parochial schools.
"[T]here is no valueless or neutral school," it is argued, and
education and religion cannot be separated from each other.
Hearings on S. 3 and H.R. 1198 before Subcommittee No. 3 of the
House Committee on the Judiciary, 90th Cong., 2d Sess., at ___
(1968) (statement of Dr. Francis J. Brown, chairman, National
Association for Personal Rights in Education).
The views expressed by my Brother HARLAN in his concurring
opinion are somewhat similar. His approval, on a constitutional
basis, of government aid to our country's churches "calculated to
achieve nonreligious purposes otherwise within the competence of
the State" and not involving the state "
significantly and
directly in the realm of the sectarian'" would seem to permit
considerable diversion of public funds to the various sects. The
state's "competence" in the areas of health, safety, and welfare of
the people would, under that view, permit it to fund a church's
charity programs, pay for renovating dilapidated church buildings,
and pay for the services and upkeep, such as janitors' salaries and
utility bills, necessary to maintain church buildings in safe and
healthful condition. Indeed, short of state-provided prayer books,
sacramental wine, and the like, churches could, apparently, become
virtual state dependencies.
Should that, unhappily, come to pass, then perhaps the church
would in time become an administrative arm of the state, a goal
predicted by J. Galbraith for "the mature corporation." The New
Industrial State 393 (1967).
Then the circle would be completed, and we would return to the
point where the long struggle to keep church and state separate
first started.
Such a constitutional form of government is conceivable. But
proposals for putting each of the Nation's religious sects on the
public payroll should be addressed to a federal constitutional
convention, since, as my Brother BLACK shows, such a scheme was
thoroughly rejected in 1791 with the adoption of the First
Amendment.
[
Footnote 3/1]
Everson, relied on by the Court of Appeals of New York,
did not involve textbooks and did not present the serious problems
raised by a form of aid to parochial students which injects
religious issues into the choice of curriculum. In the only
decision of this Court upholding a state grant of textbooks to
sectarian school students,
Cochran v. Board of Education,
281 U. S. 370, the
First Amendment issue was not raised.
See id. at
281 U. S. 370-373;
Everson v. Board of Education, 330 U. S.
1,
330 U. S. 29, n.
3 (dissenting opinion).
[
Footnote 3/2]
Letter from Herbert F. Johnson, State Education Department, to
City, Village and District Superintendents & Supervising
Principals, � 5, Jan. 10, 1966, reproduced in Brief for American
Jewish Committee
et al. as
Amici Curiae, at 43,
44.
[
Footnote 3/3]
Manual of Instructions on Recordkeeping Procedures for Textbooks
Loaned in Conformance With Provisions of the New York State
Textbook Law � 2.3 (1967), reproduced in Brief for National Jewish
Commission on Law and Public Affairs as
Amicus Curiae, at
24, 25.
[
Footnote 3/4]
See 392
U.S. 236appa|>Appendix A to this opinion.
[
Footnote 3/5]
The State Court of Appeals used the phrases "secular textbooks"
and "nonreligious textbooks" without any elaboration as to what was
meant. 20 N.Y.2d at 117, 228 N.E.2d at 794-795, 281 N.Y.S.2d at
805. The legislature, in its "statement of policy" to the Act (Laws
of 1965, c. 320, § 1), speaks of aiding instruction in
"nonsectarian subjects," and gives as examples "science,
mathematics, and foreign languages." The State Department of
Education has stated that
"it is necessary that . . . [t]he textbooks be nonsectarian this
eliminates denominational editions and those carrying the
'imprimatur' or '
nihil obstat' of a religious authority).
. . ."
Opinion of Counsel No. 181. There are no other definitions to be
found.
The Court was advised at oral argument by the Assistant Attorney
General that Opinion of Counsel No. 181 is advisory only, and not
binding. It would state the policy of the New York Department of
Education, in event of an appeal to it by a taxpayer of a local
board's decision, that a certain text was "nonsectarian" or should
be "approved." The Regents of the University of the State of New
York, who have the last word on such matters and are specifically
authorized by § 701, subd. 3, to promulgate regulations respecting
the textbook loan program, have not done so, and their position on
what is "nonsectarian" is unknown.
[
Footnote 3/6]
For example, the regulations of the Board of Education of the
City of New York respecting approval of textbooks for public
schools contain no limitations directly relevant to the question of
sectarianism. The material is to "promote the objectives of the
educational program," "treat the subject competently and
accurately," "be in good taste," "have a wholesome tone that is
consonant with right conduct and civic values," "be in harmony with
American democratic ideals and moral values," "be free of any
reflection on the dignity and status of any group, race, or
religion, whether expressed or implied, by statement or omission,"
and "be free of objectionable features of over-dramatization,
violence, or crime." Guiding Principles for Schools in the
Selection and Use of "Non-Listed" Instructional Materials (1952).
Opinion of Counsel No. 181 (
see 392
U.S. 236fn3/5|>n. 5,
supra) simply states that the
local board, if it finds that no other board has approved the text
in question, should "decide if it wishes to approve the same
itself." This opinion of counsel also states that, if the board is
in doubt as to whether a text is "nonsectarian," that is whether it
carries an imprimatur or
nihil obstat or is a
denominational edition, it "must make the appropriate
determination."
[
Footnote 3/7]
Although the author of this textbook is a priest, the text
contains no imprimatur and no
nihil obstat. Although
published by a Catholic press, the Loyola University Press,
Chicago, it is not marked in any manner as a "denominational
edition," but is simply the general edition of the book.
Accordingly, under Opinion of Counsel No. 181, the only document
approaching a "regulation" on the issue involved here, Adventures
in Science would qualify as "nonsectarian."
See nn.
392
U.S. 236fn3/5|>5,
392
U.S. 236fn3/6|>6,
supra.
[
Footnote 3/8]
Man In Time contains a
nihil obstat and an imprimatur.
Thus, if Opinion of Counsel No. 181 (
see nn.
392
U.S. 236fn3/5|>5,
392
U.S. 236fn3/6|>6,
supra) is applicable, this book
may not be provided by the State. The Opinion of Counsel, however,
is only "advisory," we are told; moreover, the religious
endorsements could easily be removed by the author and publisher at
the next printing.
[
Footnote 3/9]
Some parochial schools may prefer those texts which are
liberally sprinkled with religious vignettes. This creeping
sectarianism avoids the direct teaching of religious doctrine, but
keeps the student continually reminded of the sectarian orientation
of his education. In P. Furlong, Sr. Margaret, & D. Sharkey's
American history text, America Yesterday (1963), for example, the
student is informed that the first mass to be said in what is now
the United States was in 1526 near Chesapeake Bay, that eight
French missionaries to Canada in the early 1600's were canonized in
1930, that one of the men who signed the Declaration of
Independence and two who attended the Constitutional Convention
were Catholic, and that the superintendent of the Hudson Bay
Company's outpost in the Oregon country converted to Catholicism in
1842. At 26, 73-74, 102, 14, 235. And J. Scott's Adventures in
Science (1963), in teaching the atmospheric conditions prevailing
at the top of Mount Everest, informs the student that, when Sir
Edmund Hillary first scaled this peak he placed there a "tiny
crucifix" which a Benedictine monk had supplied. At 72.
America Yesterday,
supra, is another example of a text
written by the clergy (here a priest and nun together with one
layman) that contains no imprimatur and no
nihil obstat,
and is not a denominational edition.
See nn.
392
U.S. 236fn3/5|>5-7.
[
Footnote 3/10]
"In Spain early in 1936, a popular-front organization won a
victory in the national elections. The result was a government made
up of discordant political elements that failed to preserve civil
order in the country. Violent anti-Catholics attacked and burned
churches and monasteries, and the government did not even try to
prevent these crimes. As a result, Spaniards who loved their
country and were loyal to their religion revolted against the
popular front government of the republic. An able general,
Francisco Franco, put himself at the head of the revolt, which
began in July 1936."
[
Footnote 3/11]
"Spain, at the end of World War I, was a backward,
poverty-stricken monarchy. In 1931, the king resigned and the
people established a republic. The Spanish tried many reforms, but
there were many who wanted to go back to the old ways and old
privileges of the monarchy. Those who were rich wanted to hold on
to their property. These people thought that Francisco Franco, a
Fascist, could help them."
"In 1936, a civil war started which soon came to be called a
'dress rehearsal' for World War II because the Fascist countries of
Italy and Germany supported Franco and his rebels. On the other
hand, Russia supported the loyalists (as the armies of the republic
were called). The democratic countries might have supported the
loyalists, too, but fear of communism prevented them from doing so.
Franco defeated the loyalists and, in 1938, became dictator of
Spain and today, as El Caudillo ('The Leader') still rules Spain
with an iron hand."
[
Footnote 3/12]
The purpose of the parochial school in the beginning is clear
beyond peradventure. The generally held Roman Catholic position in
the matter of education in public and parochial schools has been
well summarized by the late Monsignor John A. Ryan (1869-1945):
"'As a matter of fact, the State maintains a system of schools
which is not completely satisfactory to Catholics, inasmuch as no
place is given to morality and religion. Since the Church realizes
that the teaching of religion and instruction in the secular
branches cannot rightfully or successfully be separated one from
the other, she is compelled to maintain her own system of schools
for general education as well as for religious instruction. . .
.'"
2 A. Stokes, Church and State in the United States 654
(1950).
"The education in the parochial schools follows in general the
curriculum in the public schools, the main differences being that
about 15 percent of the time is given to religious instruction, and
that the Catholic point of view is brought out in the treatment of
historical and other subjects, just as the Protestant point of view
might be emphasized in a Protestant school."
Ibid.
Some, however, think that some parochial schools are changing
their character under practical pressures of educational
competition.
See, e.g., Fleming, Fordham Is Trying to be
catholic With a Small "c," N.Y. Times Magazine, Dec. 10, 1967, p.
32.
[
Footnote 3/13]
St. John's I: A Chronicle of Folly, 4 Continuum 223, 233-234
(1966).
[
Footnote 3/14]
Id. 234 (emphasis in original).
[
Footnote 3/15]
Cf. Adler v. Board of Education, 34 U.
S. 485;
Barsky v. Board of Regents,
347 U. S. 442.
[
Footnote 3/16]
The proportions of the contest are suggested in the letter dated
November 1, 1967, that the late Cardinal Spellman directed to be
read at all the masses on Sunday, November 5, 1967, just before the
vote on a proposed Constitution that would have opened wide the
door to state aid to parochial schools. I have attached the letter
as
392
U.S. 236appb|>Appendix B to this opinion.
[
Footnote 3/17]
2 Writings of James Madison 186 (Hunt ed.1901).
[
Footnote 3/18]
For a recent account of the extent to which public funds are
being poured into sectarian schools,
see S.Rep. No. 473,
90th Cong., 1st Sess., 9-10 (1967).
MR. JUSTICE FORTAS, dissenting.
The majority opinion of the Court upholds the New York statute
by ignoring a vital aspect of it. Public funds are used to buy, for
students in sectarian schools, textbooks which are selected and
prescribed by the sectarian
Page 392 U. S. 270
schools themselves. As my Brother DOUGLAS points out, despite
the transparent camouflage that the books are furnished to
students, the reality is that they are selected and their use is
prescribed by the sectarian authorities. The child must use the
prescribed book. He cannot use a different book prescribed for use
in the public schools. The State cannot choose the book to be used.
It is true that the public school boards must "approve" the book
selected by the sectarian authorities, but this has no real
significance. The purpose of these provisions is to hold out
promise that the books will be "secular" (
but cf. DOUGLAS,
J., dissenting,
ante at
392 U. S. 256,
n. 6); but the fact remains that the books are chosen by and for
the sectarian schools.
It is misleading to say, as the majority opinion does, that the
New York "law merely makes available to all children the benefits
of a general program to lend school books free of charge."
(
Ante at
392 U. S.
243.) This is not a "general" program. It is a specific
program to use state
Page 392 U. S. 271
funds to buy books prescribed by sectarian schools which, in New
York, are primarily Catholic, Jewish, and Lutheran sponsored
schools. It could be called a "general" program only if the school
books made available to all children were precisely the same -- the
books selected for and used in the public schools. But this program
is not one in which all children are treated alike, regardless of
where they go to school. This program, in its unconstitutional
features, is hand-tailored to satisfy the specific needs of
sectarian schools. Children attending such schools are given
special books -- books selected by the sectarian authorities. How
can this be other than the use of public money to aid those
sectarian establishments?
It is also beside the point, in my opinion, to "assume," as the
majority opinion does, that "books loaned to students are books
that are not unsuitable for use in the public schools because of
religious content." (
Ante at
392 U. S.
245.) The point is that the books furnished to students
of sectarian schools are selected by the religious authorities and
are prescribed by them.
This case is not within the principle of
Everson v. Board of
Education, 330 U. S. 1 (1947).
Apart from the differences between textbooks and bus rides, the
present statute does not call for extending to children attending
sectarian schools the same service or facility extended to children
in public schools. This statute calls for furnishing special,
separate, and particular books, specially, separately, and
particularly chosen by religious sects or their representatives for
use in their sectarian schools. This is the infirmity, in my
opinion. This is the feature that makes it impossible, in my view,
to reach any conclusion other than that this statute is an
unconstitutional use of public funds to support an establishment of
religion.
This is the feature of the present statute that makes it totally
inaccurate to suggest, as the majority does
Page 392 U. S. 272
here, that furnishing these specially selected books for use in
sectarian schools is like "public provision of police and fire
protection, sewage facilities, and streets and sidewalks."
(
Ante at
392 U. S.
242.) These are furnished to all alike. They are not
selected on the basis of specification by a religious sect. And
patrons of any one sect do not receive services or facilities
different from those accorded members of other religions or
agnostics, or even atheists.
I would reverse the judgment below.