The Higher Education Facilities Act of 1963 provides federal
construction grants for college and university facilities,
excluding
"any facility used or to be used for sectarian instruction or as
a place for religious worship, or . . . primarily in connection
with any part of the program of a school or department of
divinity."
The United States retains a 20-year interest in any facility
constructed with funds under the Act, and if, during this period,
the recipient violates the statutory conditions, the Government is
entitled to recovery of funds. Four church-related colleges and
universities in Connecticut received federal construction grants
for five facilities. Appellants attempted to show, in a three-judge
court, that the recipient institutions were "sectarian" by
introducing evidence of their relations with religious authorities,
the curricula content, and other indicia of religious character.
Appellee colleges introduced testimony that they had fully complied
with the statutory conditions, and that their religious
affiliations did not interfere with their secular educational
functions. The court held that the Act authorized grants to
church-related schools, and sustained its constitutionality,
finding that the Act had neither the purpose nor the effect of
promoting religion.
Held: The Act is constitutional except for that portion
providing for a 20-year limitation on the religious use of the
facilities constructed with federal funds. Pp.
403 U. S.
676-689,
403 U. S.
661-671,
403 U. S.
692.
312
F. Supp. 1191, vacated and remanded.
THE CHIEF JUSTICE, joined by MR. JUSTICE HARLAN, MR. JUSTICE
STEWART, and MR. JUSTICE BLACKMUN, concluded that:
1. The Act includes colleges and universities with religious
affiliations. Pp.
403 U. S.
676-677.
2. Congress' objective of providing more opportunity for college
education is a legitimate secular goal entirely appropriate for
governmental action. Pp.
403 U. S.
678-679.
Page 403 U. S. 673
3. The record fully supports the District Court's findings that
the colleges involved have not violated the statutory restrictions;
it provides no basis for assuming that religiosity necessarily
permeates the secular education of the colleges; and it yields no
evidence that religion seeps into the use of any of the five
facilities. Pp.
403 U. S.
680-682.
4. The limitation of federal interest in the facilities to a
period of 20 years violates the Religion Clauses of the First
Amendment, as the unrestricted use of valuable property after 20
years is in effect a contribution to a religious body. Pp.
403 U. S.
682-684.
5. This case is distinguished from
Lemon v. Kurtzman,
ante, p.
403 U. S. 602; (a)
there is less danger here than in church-related primary and
secondary schools dealing with impressionable children that
religion will permeate the area of secular education, since
religious indoctrination is not a substantial purpose or activity
of these church-related colleges, (b) the facilities provided here
are themselves religiously neutral, with correspondingly less need
for government surveillance, and (c) the government aid here is a
one-time, single-purpose construction grant, with only minimal need
for inspection. Cumulatively, these factors lessen substantially
the potential for divisive religious fragmentation in the political
arena. Pp.
403 U. S.
684-689.
6. The implementation of the Act does not inhibit the free
exercise of religion in violation of the First Amendment. P.
403 U. S.
689.
MR. JUSTICE WHITE concurred in the judgment in this case. Pp.
403 U. S.
661-671.
MR. JUSTICE DOUGLAS, joined by MR. JUSTICE BLACK and MR. JUSTICE
MARSHALL, agreed only with that part of the plurality opinion
relating to the limitation of federal interest in the facilities to
20 years, concluding that a reversion of a facility at the end of
that period to a parochial school would be unconstitutional as a
gift of taxpayers' funds. P.
403 U. S.
692.
BURGER, C.J., announced the Court's judgment and delivered an
opinion in which HARLAN, STEWART, and BLACKMUN, JJ., joined. WHITE,
J., filed an opinion concurring in the judgment,
ante, p.
403 U. S. 661.
DOUGLAS, J., filed an opinion dissenting in part, in which BLACK
and MARSHALL, JJ., joined,
post, p.
403 U. S. 689.
BRENNAN, J. filed a dissenting opinion,
ante, p.
403 U. S.
642.
Page 403 U. S. 674
MR. CHIEF JUSTICE BURGER announced the judgment of the Court and
an opinion in which MR. JUSTICE HARLAN, MR. JUSTICE STEWART, and
MR. JUSTICE BLACKMUN join.
This appeal presents important constitutional questions as to
federal aid for church-related colleges and universities under
Title I of the Higher Education Facilities Act of 1963, 77 Stat.
364, as amended, 20 U.S.C. §§ 711-721 (1964 ed. and Supp. V), which
provides construction grants for buildings and facilities used
Page 403 U. S. 675
exclusively for secular educational purposes. We must determine
first whether the Act authorizes aid to such church-related
institutions, and, if so, whether the Act violates either the
Establishment or Free Exercise Clauses of the First Amendment.
I
The Higher Education Facilities Act was passed in 1963 in
response to a strong nationwide demand for the expansion of college
and university facilities to meet the sharply rising number of
young people demanding higher education. The Act authorizes federal
grants and loan to "institutions of higher education" for the
construction of a wide variety of "academic facilities." But §
751(a)(2) (1964 ed., Supp. V) expressly excludes
"any facility used or to be used for sectarian instruction or as
a place for religious worship, or . . . any facility which . . . is
used or to be used primarily in connection with any part of the
program of a school or department of divinity. . . ."
The Act is administered by the United States Commissioner of
Education. He advises colleges and universities applying for funds
that under the Act no part of the project may be used for sectarian
instruction, religious worship, or the programs of a divinity
school. The Commissioner requires applicants to provide assurances
that these restrictions will be respected. The United States
retains a 20-year interest in any facility constructed with Title I
funds. If, during this period, the recipient violates the statutory
conditions, the United States is entitled to recover an amount
equal to the proportion of its present value that the federal grant
bore to the original cost of the facility. During the 20-year
period, the statutory restrictions are enforced by the Office of
Education primarily by way of on-site inspections.
Page 403 U. S. 676
Appellants are citizens and taxpayers of the United States and
residents of Connecticut. They brought this suit for injunctive
relief against the officials who administer the Act. Four
church-related colleges and universities in Connecticut receiving
federal construction grants under Title I were also named as
defendants. Federal funds were used for five projects at these four
institutions: (1) a library building at Sacred Heart University;
(2) a music, drama, and arts building at Annhurst College; (3) a
science building at Fairfield University; (4) a library building at
Fairfield; and (5) a language laboratory at Albertus Magnus
College.
A three-judge federal court was convened under 28 U.S.C. § 2282
and § 2284. Appellants attempted to show that the four recipient
institutions were "sectarian" by introducing evidence of their
relations with religious authorities, the content of their
curricula, and other indicia of their religious character. The
sponsorship of these institutions by religious organizations is not
disputed. Appellee colleges introduced testimony that they had
fully complied with the statutory conditions and that their
religious affiliation in no way interfered with the performance of
their secular educational functions. The District Court ruled that
Title I authorized grants to church-related colleges and
universities. It also sustained the constitutionality of the Act,
finding that it had neither the purpose nor the effect of promoting
religion.
312 F.
Supp. 1191. We noted probable jurisdiction. 399 U.S. 904
(1970).
II
We are satisfied that Congress intended the Act to include all
colleges and universities regardless of any affiliation with or
sponsorship by a religious body. Congress defined "institutions of
higher education," which are eligible to receive aid under the Act,
in broad and
Page 403 U. S. 677
inclusive terms. Certain institutions, for example, institutions
that are neither public nor nonprofit, are expressly excluded, and
the Act expressly prohibits use of the facilities for religious
purposes. But the Act makes no reference to religious affiliation
or nonaffiliation. Under these circumstances, "institutions of
higher education" must be taken to include church-related colleges
and universities.
This interpretation is fully supported by the legislative
history. Although there was extensive debate on the wisdom and
constitutionality of aid to institutions affiliated with religious
organizations, Congress clearly included them in the program. The
sponsors of the Act so stated, 109 Cong.Rec.19218 (1963) (remarks
of Sen. Morse);
id. at 14954 (remarks of Rep. Powell);
id. at 14963 (remarks of Rep. Quie), and amendments aimed
at the exclusion of church-related institutions were defeated.
Id. at 14990-14992, 19496.
III
Numerous cases considered by the Court have noted the internal
tension in the First Amendment between the Establishment Clause and
the Free Exercise Clause.
Walz v. Tax Comm'n, 397 U.
S. 664 (1970), is the most recent decision seeking to
define the boundaries of the neutral area between these two
provisions within which the legislature may legitimately act.
There, as in other decisions, the Court treated the three main
concerns against which the Establishment Clause sought to protect:
"sponsorship, financial support, and active involvement of the
sovereign in religious activity."
Id. at 668.
Every analysis must begin with the candid acknowledgment that
there is no single constitutional caliper that can be used to
measure the precise degree to which these three factors are present
or absent. Instead, our
Page 403 U. S. 678
analysis in this area must begin with a consideration of the
cumulative criteria developed over many years and applying to a
wide range of governmental action challenged as violative of the
Establishment Clause.
There are always risks in treating criteria discussed by the
Court from time to time as "tests" in any limiting sense of that
term. Constitutional adjudication does not lend itself to the
absolutes of the physical sciences or mathematics. The standards
should rather be viewed as guidelines with which to identify
instances in which the objectives of the Religion Clauses have been
impaired. And, as we have noted in
Lemon v. Kurtzman and
Earley v. DiCenso, ante at
403 U. S. 612,
candor compels the acknowledgment that we can only dimly perceive
the boundaries of permissible government activity in this sensitive
area of constitutional adjudication.
Against this background we consider four questions: first, does
the Act reflect a secular legislative purpose? Second, is the
primary effect of the Act to advance or inhibit religion? Third,
does the administration of the Act foster an excessive government
entanglement with religion? Fourth, does the implementation of the
Act inhibit the free exercise of religion?
(a)
The stated legislative purpose appears in the preamble, where
Congress found and declared that
"the security and welfare of the United States require that this
and future generations of American youth be assured ample
opportunity for the fullest development of their intellectual
capacities, and that this opportunity will be jeopardized unless
the Nation's colleges and universities are encouraged and assisted
in their efforts to accommodate rapidly growing numbers of youth
who aspire to a higher education."
20 U.S.C. § 701.
Page 403 U. S. 679
This expresses a legitimate secular objective entirely
appropriate for governmental action.
The simplistic argument that every form of financial aid to
church-sponsored activity violates the Religion Clauses was
rejected long ago in
Bradfield v. Roberts, 175 U.
S. 291 (1899). There, a federal construction grant to a
hospital operated by a religious order was upheld. Here, the Act is
challenged on the ground that its primary effect is to aid the
religious purposes of church-related colleges and universities.
Construction grants surely aid these institutions in the sense that
the construction of buildings will assist them to perform their
various functions. But bus transportation, textbooks, and tax
exemptions all gave aid in the sense that religious bodies would
otherwise have been forced to find other sources from which to
finance these services. Yet all of these forms of governmental
assistance have been upheld.
Everson v. Board of
Education, 330 U. S. 1 (1947);
Board of Education v. Allen, 392 U.
S. 236 (1968);
Walz v. Tax Comm'n., supra.
See also Bradfield v. Roberts, supra. The crucial question
is not whether some benefit accrues to a religious institution as a
consequence of the legislative program, but whether its principal
or primary effect advances religion.
A possibility always exists, of course, that the legitimate
objectives of any law or legislative program may be subverted by
conscious design or lax enforcement. There is nothing new in this
argument. But judicial concern about these possibilities cannot,
standing alone, warrant striking down a statute as
unconstitutional.
The Act itself was carefully drafted to ensure that the
federally subsidized facilities would be devoted to the secular,
and not the religious, function of the recipient institutions. It
authorizes grants and loans only for academic facilities that will
be used for defined secular purposes, and expressly prohibits their
use for religious
Page 403 U. S. 680
instruction, training, or worship. These restrictions have been
enforced in the Act's actual administration, and the record shows
that some church-related institutions have been required to
disgorge benefits for failure to obey them.
Finally, this record fully supports the findings of the District
Court that none of the four church-related institutions in this
case has violated the statutory restrictions. The institutions
presented evidence that there had been no religious services or
worship in the federally financed facilities, that there are no
religious symbols or plaques in or on them, and that they had been
used solely for nonreligious purposes. On this record, therefore,
these buildings are indistinguishable from a typical state
university facility. Appellants presented no evidence to the
contrary.
Appellants instead rely on the argument that government may not
subsidize any activities of an institution of higher learning that,
in some of its programs, teaches religious doctrines. This argument
rests on
Everson, where the majority stated that the
Establishment Clause barred any "tax . . . levied to support any
religious . . . institutions . . . whatever form they may adopt to
teach or practice religion." 330 U.S. at
330 U. S. 16. In
Allen, however, it was recognized that the Court had
fashioned criteria under which an analysis of a statute's purpose
and effect was determinative as to whether religion was being
advanced by government action. 392 U.S. at
392 U. S. 243;
Abington School District v. Schempp, 374 U.
S. 203,
374 U. S. 222
(1963).
Under this concept, appellants' position depends on the validity
of the proposition that religion so permeates the secular education
provided by church-related colleges and universities that their
religious and secular educational functions are, in fact,
inseparable. The argument that government grants would thus
inevitably advance
Page 403 U. S. 681
religion did not escape the notice of Congress. It was carefully
and thoughtfully debated, 109 Cong.Rec.19474-19475, but was found
unpersuasive. It was also considered by this Court in
Allen. There, the Court refused to assume that religiosity
in parochial elementary and secondary schools necessarily permeates
the secular education that they provide.
This record, similarly, provides no basis for any such
assumption here. Two of the five federally financed buildings
involved in this case are libraries. The District Court found that
no classes had been conducted in either of these facilities, and
that no restrictions were imposed by the institutions on the books
that they acquired. There is no evidence to the contrary. The third
building was a language laboratory at Albertus Magnus College. The
evidence showed that this facility was used solely to assist
students with their pronunciation in modern foreign languages -- a
use which would seem peculiarly unrelated and unadaptable to
religious indoctrination. Federal grants were also used to build a
science building at Fairfield University and a music, drama, and
arts building at Annhurst College.
There is no evidence that religion seeps into the use of any of
these facilities. Indeed, the parties stipulated in the District
Court that courses at these institutions are taught according to
the academic requirements intrinsic to the subject matter and the
individual teacher's concept of professional standards. Although
appellants introduced several institutional documents that stated
certain religious restrictions on what could be taught, other
evidence showed that these restrictions were not, in fact,
enforced, and that the schools were characterized by an atmosphere
of academic freedom, rather than religious indoctrination. All four
institutions, for example, subscribe to the 1940 Statement of
Principles on Academic
Page 403 U. S. 682
Freedom and Tenure endorsed by the American Association of
University Professors and the Association of American Colleges.
Rather than focus on the four defendant colleges and
universities involved in this case, however, appellants seek to
shift our attention to a "composite profile" that they have
constructed of the "typical sectarian" institution of higher
education. We are told that such a "composite" institution imposes
religious restrictions on admissions, requires attendance at
religious activities, compels obedience to the doctrines and dogmas
of the faith, requires instruction in theology and doctrine, and
does everything it can to propagate a particular religion. Perhaps
some church-related schools fit the pattern that appellants
describe. Indeed, some colleges have been declared ineligible for
aid by the authorities that administer the Act. But appellants do
not contend that these four institutions fall within this category.
Individual projects can be properly evaluated if and when
challenges arise with respect to particular recipients and some
evidence is then presented to show that the institution does in
fact, possess these characteristics. We cannot, however, strike
down an Act of Congress on the basis of a hypothetical
"profile."
(b)
Although we reject appellants' broad constitutional arguments,
we do perceive an aspect in which the statute's enforcement
provisions are inadequate to ensure that the impact of the federal
aid will not advance religion. If a recipient institution violates
any of the statutory restrictions on the use of a federally
financed facility, § 754(b)(2) permits the Government to recover an
amount equal to the proportion of the facility's present value that
the federal grant bore to its original cost.
Page 403 U. S. 683
This remedy, however, is available to the Government only if the
statutory conditions are violated "within twenty years after
completion of construction." This 20-year period is termed by the
statute as "the period of Federal interest," and reflects Congress'
finding that, after 20 years, "the public benefit accruing to the
United States" from the use of the federally financed facility
"will equal or exceed in value" the amount of the federal grant. 20
U.S.C. § 754(a).
Under § 754(b)(2), therefore, a recipient institution's
obligation not to use the facility for sectarian instruction or
religious worship would appear to expire at the end of 20 years. We
note, for example, that, under § 718(b)(7)(C) (1964 ed., Supp. V),
an institution applying for a federal grant is only required to
provide assurances that the facility will not be used for sectarian
instruction or religious worship "during at least the period of the
Federal interest therein (as defined in section 754 of this
title)."
Limiting the prohibition for religious use of the structure to
20 years obviously opens the facility to use for any purpose at the
end of that period. It cannot be assumed that a substantial
structure has no value after that period, and, hence, the
unrestricted use of a valuable property is, in effect, a
contribution of some value to a religious body. Congress did not
base the 20-year provision on any contrary conclusion. If, at the
end of 20 years, the building is, for example, converted into a
chapel or otherwise used to promote religious interests, the
original federal grant will, in part, have the effect of advancing
religion.
To this extent, the Act therefore trespasses on the Religion
Clauses. The restrictive obligations of a recipient institution
under § 751(a)(2) cannot, compatibly with the Religion Clauses,
expire while the building has substantial value. This circumstance
does not require us to
Page 403 U. S. 684
invalidate the entire Act, however. "The cardinal principle of
statutory construction is to save, and not to destroy."
NLRB v.
Jones & Laughlin Steel Corp., 301 U. S.
1,
301 U. S. 30
(1937). In
Champlin Rfg. Co. v. Commission, 286 U.
S. 210,
286 U. S. 234
(1932), the Court noted
"The unconstitutionality of a part of an Act does not
necessarily defeat . . . the validity of its remaining provisions.
Unless it is evident that the legislature would not have enacted
those provisions which are within its power, independently of that
which is not, the invalid part may be dropped if what is left is
fully operative as a law."
Nor does the absence of an express severability provision in the
Act dictate the demise of the entire statute.
E.g., United
States v. Jackson, 390 U. S. 570,
390 U. S. 585
n. 27 (1968).
We have found nothing in the statute or its objectives
intimating that Congress considered the 20-year provision essential
to the statutory program as a whole. In view of the broad and
important goals that Congress intended this legislation to serve,
there is no basis for assuming that the Act would have failed of
passage without this provision; nor will its excision impair either
the operation or administration of the Act in any significant
respect. [
Footnote 1]
IV
We next turn to the question of whether excessive entanglements
characterize the relationship between government and church under
the Act.
Walz v. Tax Comm'n, supra, at
397 U. S.
674-676. Our decision today in
Page 403 U. S. 685
Lemon v. Kurtzman and
Robinson v. DiCenso has
discussed and applied this independent measure of constitutionality
under the Religion Clauses. There, we concluded that excessive
entanglements between government and religion were fostered by
Pennsylvania and Rhode Island statutory programs under which state
aid was provided to parochial elementary and secondary schools.
Here, however, three factors substantially diminish the extent and
the potential danger of the entanglement.
In
DiCenso, the District Court found that the parochial
schools in Rhode Island were "an integral part of the religious
mission of the Catholic Church." There, the record fully supported
the conclusion that the inculcation of religious values was a
substantial, if not the dominant, purpose of the institutions. The
Pennsylvania case was decided on the pleadings, and hence we
accepted as true the allegations that the parochial schools in that
State shared the same characteristics.
Appellants' complaint here contains similar allegations. But
they were denied by the answers, and there was extensive evidence
introduced on the subject. Although the District Court made no
findings with respect to the religious character of the four
institutions of higher learning, we are not required to accept the
allegations as true under these circumstances, particularly where,
as here, appellants themselves do not contend that these four
institutions are "sectarian."
There are generally significant differences between the
religious aspects of church-related institutions of higher learning
and parochial elementary and secondary schools. [
Footnote 2] The "affirmative if not dominant
policy" of the instruction in pre-college church schools is "to
assure future
Page 403 U. S. 686
adherents to a particular faith by having control of their total
education at an early age."
Walz v. Tax Comm'n, supra, at
397 U. S. 671.
[
Footnote 3] There is substance
to the contention that college students are less impressionable and
less susceptible to religious indoctrination. [
Footnote 4] Common observation would seem to
support that view, and Congress may well have entertained it. The
skepticism of the college student is not an inconsiderable barrier
to any attempt or tendency to subvert the congressional objectives
and limitations. Furthermore, by their very nature, college and
postgraduate courses tend to limit the opportunities for sectarian
influence by virtue of their own internal disciplines. Many
church-related colleges and universities are characterized by a
high degree of academic freedom, [
Footnote 5] and seek to evoke free and critical responses
from their students.
The record here would not support a conclusion that any of these
four institutions departed from this general pattern. All four
schools are governed by Catholic religious organizations, and the
faculties and student bodies at each are predominantly Catholic.
Nevertheless, the evidence shows that non-Catholics were admitted
as students and given faculty appointments. Not one of these four
institutions requires its students to attend religious services.
Although all four schools require their students to take theology
courses, the parties stipulated that these courses are taught
according to the academic requirements of the subject matter and
the teacher's concept of professional standards. The parties also
stipulated that the courses covered a range of human religious
Page 403 U. S. 687
experiences, and are not limited to courses about the Roman
Catholic religion. The schools introduced evidence that they made
no attempt to indoctrinate students or to proselytize. Indeed, some
of the required theology courses at Albertus Magnus and Sacred
Heart are taught by rabbis. Finally, as we have noted, these four
schools subscribe to a well established set of principles of
academic freedom, and nothing in this record shows that these
principles are not, in fact, followed. In short, the evidence shows
institutions with admittedly religious functions, but whose
predominant higher education mission is to provide their students
with a secular education.
Since religious indoctrination is not a substantial purpose or
activity of these church-related colleges and universities, there
is less likelihood than in primary and secondary schools that
religion will permeate the area of secular education. This reduces
the risk that government aid will, in fact, serve to support
religious activities. Correspondingly, the necessity for intensive
government surveillance is diminished, and the resulting
entanglements between government and religion lessened. Such
inspection as may be necessary to ascertain that the facilities are
devoted to secular education is minimal, and indeed hardly more
than the inspections that States impose over all private schools
within the reach of compulsory education laws.
The entanglement between church and state is also lessened here
by the nonideological character of the aid that the Government
provides. Our cases from
Everson to
Allen have
permitted church-related schools to receive government aid in the
form of secular, neutral, or nonideological services, facilities,
or materials that are supplied to all students regardless of the
affiliation of the school that they attend. In
Lemon and
DiCenso, however, the state programs subsidized teachers,
either directly or indirectly. Since teachers are not
necessarily
Page 403 U. S. 688
religiously neutral, greater governmental surveillance would be
required to guarantee that state salary aid would not, in fact,
subsidize religious instruction. There, we found the resulting
entanglement excessive. Here, on the other hand, the Government
provides facilities that are themselves religiously neutral. The
risks of Government aid to religion, and the corresponding need for
surveillance, are therefore reduced.
Finally, government entanglements with religion are reduced by
the circumstance that, unlike the direct and continuing payments
under the Pennsylvania program, and all the incidents of regulation
and surveillance, the Government aid here is a one-time,
single-purpose construction grant. There are no continuing
financial relationships or dependencies, no annual audits, and no
government analysis of an institution's expenditures on secular, as
distinguished from religious, activities. Inspection as to use is a
minimal contact.
No one of these three factors, standing alone, is necessarily
controlling; cumulatively all of them shape a narrow and limited
relationship with government which involves fewer and less
significant contacts than the two state schemes before us in
Lemon and
DiCenso. The relationship therefore has
less potential for realizing the substantive evils against which
the Religion Clauses were intended to protect.
We think that, cumulatively, these three factors also
substantially lessen the potential for divisive religious
fragmentation in the political arena. This conclusion is admittedly
difficult to document, but neither have appellants pointed to any
continuing religious aggravation on this matter in the political
processes. Possibly this can be explained by the character and
diversity of the recipient colleges and universities and the
absence of any intimate continuing relationship or dependency
between government and religiously affiliated institutions. The
Page 403 U. S. 689
potential for divisiveness inherent in the essentially local
problems of primary and secondary schools is significantly less
with respect to a college or university, whose student constituency
is not local, but diverse and widely dispersed.
V
Finally, we must consider whether the implementation of the Act
inhibits the free exercise of religion in violation of the First
Amendment. Appellants claim that the Free Exercise Clause is
violated because they are compelled to pay taxes, the proceeds of
which in part finance grants under the Act. Appellants, however,
are unable to identify any coercion directed at the practice or
exercise of their religious beliefs.
Board of Education v.
Allen, supra, at
392 U. S.
246-249. Their share of the cost of the grants under the
Act is not fundamentally distinguishable from the impact of the tax
exemption sustained in
Walz or the provision of textbooks
upheld in
Allen.
We conclude that the Act does not violate the Religion Clauses
of the First Amendment except that part of § 754(b)(2) providing a
20-year limitation on the religious use restrictions contained in §
751(a)(2). We remand to the District Court with directions to enter
a judgment consistent with this opinion.
Vacated and remanded.
[For separate opinion of MR. JUSTICE BRENNAN,
see ante,
p.
403 U. S.
642.]
[For opinion of MR. JUSTICE WHITE, concurring in the judgment,
see ante, p.
403 U. S.
661.]
[
Footnote 1]
We note that the Commissioner of Education apparently includes
no time limitation on the assurances that applicants are required
to give with respect to the use of the facilities for sectarian
instruction or religious worship.
Compare § 3(b)(3) with §
3(C) of part P of the Application Form, App. 87.
[
Footnote 2]
See Freund, Comment, Public Aid to Parochial School, 82
Harv.L.Rev. 1680, 1691 (1969).
[
Footnote 3]
E.g., J. Fichter, Parochial School: A Sociological
Study 77-108 (1958); Giannella, Religious Liberty,
Nonestablishment, and Doctrinal Development, pt. II, The
Nonestablishment Principle, 81 Harv.L.Rev. 513, 574 (1968).
[
Footnote 4]
Giannella,
supra, n
3, at 583.
[
Footnote 5]
M. Pattillo & D. Mackenzie, Church-Sponsored Higher
Education in the United States 96, 167, 204 (1966).
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK and MR. JUSTICE
MARSHALL concur, dissenting in part.
The correct constitutional principle for this case was stated by
President Kennedy in 1961 when questioned as
Page 403 U. S. 690
to his policy respecting aid to private and parochial schools:
[
Footnote 2/1]
"[T]he Constitution clearly prohibits aid to the school, to
parochial schools. I don't think there is any doubt of that."
"The
Everson case, which is probably the most
celebrated case, provided only by a 5 to 4 decision was it possible
for a local community to provide bus rides to nonpublic school
children. But all through the majority and minority statements on
that particular question, there was a very clear prohibition
against aid to the school direct. The Supreme Court made its
decision in the
Everson case by determining that the aid
was to the child, not to the school. Aid to the school is -- there
isn't any room for debate on that subject. It is prohibited by the
Constitution, and the Supreme Court has made that very clear. And
therefore, there would be no possibility of our recommending
it."
Taxpayer appellants brought this suit challenging the validity
of certain expenditures, made by the Department of Health,
Education, and Welfare, for the construction of (1) a library at
Sacred Heart University, (2) a music, drama, and arts building at
Annhurst College, (3) a library and a science building at Fairfield
University, and (4) a laboratory at Albertus Magnus College. The
complaint alleged that all of these institutions were controlled by
religious orders and the Roman Catholic Diocese of Bridgeport,
Conn., and that, if the funds for construction were authorized by
Title I of the Higher Education Facilities Act of 1963, 77 Stat.
364, as amended, 20 U.S.C. §§ 711-721 (1964 ed. and Supp. V), then
that statute was unconstitutional because it violated the
Page 403 U. S. 691
Establishment Clause. A three-judge District Court was convened,
and rejected appellants' claims.
Title I of the Higher Education Facilities Act of 1963
authorizes grants and loans up to 50% of the cost for the
construction of undergraduate academic facilities in both public
and private colleges and universities. A project is eligible if
construction will result
"in an urgently needed substantial expansion of the
institution's student enrollment capacity, capacity to provide
needed health care to students or personnel of the institution, or
capacity to carry out extension and continuing education programs
on the campus of such institution."
20 U.S.C. § 716 (1964 ed., Supp. V). The Commissioner of
Education is authorized to prescribe basic criteria, and is
instructed to "give special consideration to expansion of
undergraduate enrollment capacity." 20 U.S.C. § 717 (1964 ed.,
Supp. V).
Academic facilities are
"structures suitable for use as classrooms, laboratories,
libraries, and related facilities necessary or appropriate for
instruction of students, or for research . . . programs."
Specifically excluded are facilities "used or to be used for
sectarian instruction or as a place for religious worship" or any
facilities used "primarily in connection with any part of the
program of a school or department of divinity." 20 U.S.C. § 751(a)
(1964 ed., Supp. V). The United States retains a 20-year interest
in the facilities, and, should a facility be used other than as an
academic facility, then the United States is entitled to recover an
amount equal to the proportion of present value which the federal
grant bore to the original cost of the facility. 20 U.S.C. §
754(b). According to a stipulation entered below, during the 20
years, the Office of Education attempts to insure that facilities
are used in the manner required by the Act primarily by on-site
inspections. At the end of the 20-year period, the federal interest
in the facility ceases, and
Page 403 U. S. 692
the college may use it as it pleases.
See 20 U.S.C. §
754(a)
The public purpose in secular education is, to be sure,
furthered by the program. Yet the sectarian purpose is aided by
making the parochial school system viable. The purpose is to
increase "student enrollment," and the students obviously aimed at
are those of the particular faith now financed by taxpayers' money.
Parochial schools are not beamed at agnostics, atheists, or those
of a competing sect. The more sophisticated institutions may admit
minorities; but the dominant religious character is not
changed.
The reversion of the facility to the parochial school [
Footnote 2/2] at the end of 20 years is an
outright grant, measurable by the present discounted worth of the
facility. A gift of taxpayers' funds in that amount would plainly
be unconstitutional. The Court properly bars it, even though
disguised in the form of a reversionary interest.
See Lane v.
Wilson, 307 U. S. 268,
307 U. S.
275.
But the invalidation of this one clause cannot cure the
constitutional infirmities of the statute as a whole. The Federal
Government is giving religious schools a block grant to build
certain facilities. The fact that money is
Page 403 U. S. 693
given once at the beginning of a program, rather than
apportioned annually as in
Lemon and
DiCenso, is
without constitutional significance. The First Amendment bars
establishment of a religion. And as I noted today in
Lemon
and
DiCenso, this bar has been consistently interpreted
from
Everson v. Board of Education, 330 U. S.
1,
330 U. S. 16,
through
Torcaso v. Watkins, 367 U.
S. 488,
367 U. S. 493
as meaning:
"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."
Thus, it is hardly impressive that, rather than giving a smaller
amount of money annually over a long period of years, Congress
instead gives a large amount all at once. The plurality's
distinction is. in effect. that small violations of the First
Amendment over a period of years are unconstitutional (
see
Lemon and
DiCenso), while a huge violation occurring
only once is
de minimis. I cannot agree with such
sophistry.
What I have said in
Lemon and in the
DiCenso
cases decided today is relevant here. The facilities financed by
taxpayers' funds are not to be used for "sectarian" purposes.
Religious teaching and secular teaching are so enmeshed in
parochial schools that only the strictest supervision and
surveillance would insure compliance with the condition. Parochial
schools may require religious exercises, even in the classroom. A
parochial school operates on one budget. Money not spent for one
purpose becomes available for other purposes. Thus, the fact that
there are no religious observances in federally financed facilities
is not controlling, because required religious observances will
take place in other buildings. Our decision in
Engel v.
Vitale, 370 U. S. 421,
held that a requirement of a prayer in public schools violated the
Establishment Clause. Once these schools become federally funded,
they become bound by federal standards
Page 403 U. S. 694
(
Ivanhoe Irrig. Dist. v. McCracken, 357 U.
S. 275,
357 U. S. 296;
Rosado v. Wyman, 397 U. S. 397,
397 U. S. 427
(concurring opinion);
Simkins v. Moses H. Cone Memorial
Hosp., 323 F.2d 959) and, accordingly, adherence to
Engel would require an end to required religious
exercises. That kind of surveillance and control will certainly be
obnoxious to the church authorities, and, if done, will radically
change the character of the parochial school. Yet, if that
surveillance is not searching and continuous, this federal
financing is obnoxious under the Establishment and Free Exercise
Clauses for the reasons stated in the companion cases.
In other words, surveillance creates an entanglement of
government and religion which the First Amendment was designed to
avoid. Yet, after today's decision, there will be a requirement of
surveillance which will last for the useful life of the building,
and, as we have previously noted, "[it] is hardly lack of due
process for the Government to regulate that which it subsidizes."
Wickard v. Filburn, 317 U. S. 111,
317 U. S. 131.
The price of the subsidy under the Act is violation of the Free
Exercise Clause. Could a course in the History of Methodism be
taught in a federally financed building? Would a religiously
slanted version of the Reformation or Quebec politics under
Duplessis be permissible? How can the Government know what is
taught in the federally financed building without a continuous
auditing of classroom instruction? Yet both the Free Exercise
Clause and academic freedom are violated when the Government agent
must be present to determine whether the course content is
satisfactory.
As I said in the
Lemon and
DiCenso cases, a
parochial school is a unitary institution with subtle blending of
sectarian and secular instruction. Thus, the practices of religious
schools are in no way affected by the minimal requirement that the
government financed facility may
Page 403 U. S. 695
not "be used for sectarian instruction or as a place for
religious worship." Money saved from one item in the budget is free
to be used elsewhere. By conducting religious services in another
building, the school has -- rent free -- a building for
nonsectarian use. This is not called Establishment simply because
the government retains a continuing interest in the building for
its useful life, even though the religious schools need never pay a
cent for the use of the building.
Much is made of the need for public aid to church schools in
light of their pressing fiscal problems. Dr. Eugene C. Blake of the
Presbyterian Church, however, wrote in 1959: [
Footnote 2/3]
"When one remembers that churches pay no inheritance tax
(churches do not die), that churches may own and operate business
and be exempt from the 52 percent corporate income tax, and that
real property used for church purposes (which in some states are
most generously construed) is tax exempt, it is not unreasonable to
prophesy that, with reasonably prudent management, the churches
ought to be able to control the whole economy of the nation within
the predictable future. That the growing wealth and property of the
churches was partially responsible for revolutionary expropriations
of church property in England in the sixteenth century, in France
in the eighteenth century, in Italy in the nineteenth century, and
in Mexico, Russia, Czechoslovakia and Hungary (to name a few
examples) in the twentieth century, seems self-evident. A
government with mounting tax problems cannot be expected to keep
its hands off the wealth of a rich church forever. That such a
revolution is always
Page 403 U. S. 696
accompanied by anticlericalism and atheism should not be
surprising."
The mounting wealth of the churches [
Footnote 2/4] makes ironic their incessant demands on
the public treasury. I said in my dissent in
Walz v. Tax
Comm'n, 397 U. S. 664,
397 U. S.
714:
"The religiously used real estate of the churches today
constitutes a vast domain.
See M. Larson & C. Lowell,
The Churches: Their Riches, Revenues, and Immunities (1969). Their
assets total over $141 billion, and their annual income at least
$22 billion.
Id. at 232. And the extent to which they are
feeding from the public trough in a variety of forms is alarming.
Id. c. 10."
See A. Balk, The Religion Business (1968); 20 Church
and State 8 (1967).
It is almost unbelievable that we have made the radical
departure from Madison's Remonstrance [
Footnote 2/5] memorialized in today's decision.
Page 403 U. S. 697
I dissent not because of any lack of respect for parochial
schools, but out of a feeling of despair that the respect which
through history has been accorded he First Amendment is this day
lost.
It should be remembered that, in this case, we deal with federal
grants, and with the command that "Congress shall make no law
respecting an establishment of religion, or prohibiting the free
exercise thereof." The million-dollar grants sustained today put
Madison's miserable "three pence" to shame. But he even thought, as
I do, that even a small amount coming out of the pocket of
taxpayers and going into the coffers of a church was not in keeping
with our constitutional ideal.
I would reverse the judgment below.
[
Footnote 2/1]
Public Papers of the Presidents of the United States, John F.
Kennedy, 1961, pp. 142-143, News Conference March 1, 1961.
[
Footnote 2/2]
"It should be clear to all that a Roman Catholic parochial
school is an integral part of that church, as definitely so as is
the service of worship. A parochial school is usually developed in
connection with a church. In many cases, the church and school
monies are not even separated. Such a school is in no sense a
public school, even though some children from other groups may be
admitted to it. The buildings are not owned and controlled by a
community of American people, not even by a community of American
Roman Catholic people. The title of ownership in a public school is
vested in the local community, in the elected officers of the
school board or the city council. But the title of ownership in a
parochial school is vested in the bishop as an individual, who is
appointed by, who is under the direct control of, and who reports
to, the pope in Rome."
L. Boettner, Roman Catholicism 375 (1962).
[
Footnote 2/3]
Tax Exemption and the Churches, 3 Christianity Today, No. 22,
Aug. 3, 1959, pp. 6, 7.
[
Footnote 2/4]
Churches that owned an unrelated business enjoyed until recently
a special tax advantage. Other charitable organizations were taxed
on their "unrelated business taxable income" derived from
businesses regularly carried on by them. § 512 of the Internal
Revenue Code of 1954. That tax was the normal tax and surtax. Thus,
in the case of income derived from corporations, it was 22% on the
first $25,000 and 48% on any additional income. § 11. Churches were
exempted from this "unrelated business income" tax. § 511(a)(2).
Thus, they paid no federal taxes on any of their revenues. Under
the Tax Reform Act of 1969, 83 Stat. 487, the tax advantage for
unrelated business income as respects all businesses owned by
churches (prior to May 27, 1969) will be terminated after January
1, 1976. § 121(b)(2), 83 Stat. 540, 26 U.S.C. § 512(b)(16) (1964
ed., Supp. V).
See H.R.Rep. No. 91-413 (pt. I), pp. 46-47,
48; H.R.Conf.Rep. No. 91-782, p. 67.
[
Footnote 2/5]
The Remonstrance is reproduced in appendices to the dissenting
opinion of Rutledge, J., in
Everson, 330 U.S. at
330 U. S. 63, and
to that of Douglas, J., in
Walz v. Tax Comm'n, 397 U.S. at
397 U. S.
719.