Committee for Public Education & Religious Liberty v. Nyquist

PETITIONER: Committee for Public Education & Religious Liberty
RESPONDENT: Ewald B. Nyquist, Commissioner of Education of New York
LOCATION: New York State Capitol

DOCKET NO.: 72-694
DECIDED BY: Burger Court (1972-1975)

CITATION: 413 US 756 (1973)
ARGUED: Apr 16, 1973
DECIDED: Jun 25, 1973

Jean M. Coon - Assistant Solicitor General of New York, argued the cause for Nyquist et al., appellees in No. 72-694 and appellants in No. 72-791
John F. Haggerty - argued the cause for appellant in No. 72-753
Leo Pfeffer - argued the cause for appellants in No. 72-694 and for appellees in Nos. 72-753, 72-791, and 72-929
Porter R. Chandler - argued the cause for appellants in No. 72-929 and for appellees Boylan et al. in No. 72-694

Facts of the case

New York enacted Chapter 414 of its Education and Tax Laws, which created aid programs for nonpublic elementary and secondary schools. These amendments included Section 1, which provided a grant for the maintenance and repair of schools that served many low-income students; Section 2, which provided tuition reimbursement for low-income parents; and Sections 3, 4, and 5, which provided tax relief for parents who did not qualify for tuition reimbursement. After the institution of these amendments, the Campaign for Public Education and Religious Liberty challenged the amendments in United States District Court for the Southern District of New York, alleging that these amendments violated the Establishment Clause of the First Amendment. The District Court held that Sections 1 and 2 violated the Establishment Clause, but not Sections 3, 4, and 5.


Did Sections 1-5 of Chapter 414 of New York's Education and Tax Laws violate the Establishment Clause of the First Amendment?

Media for Committee for Public Education & Religious Liberty v. Nyquist

Audio Transcription for Oral Argument - April 16, 1973 in Committee for Public Education & Religious Liberty v. Nyquist

Warren E. Burger:

We'll hear arguments next in consolidated cases 72-694, 753, 791, and 929.

Mr. Pfeffer you may proceed whenever you are ready.

Leo Pfeffer:

Mr. Chief Justice, may it please the Court.

This is a suit challenging the constitutionality of the three parts of Chapter 414 of New York Laws, 1972.

That Act consists of five parts.

Part one provides public funds for the maintenance and repair of non-public schools.

Part two, provides funds for tuition in such schools, of parents whose income does not exceed $5,000 a year.

Part three provides a tax credits to parents, children taking such schools whose income exceeds $5,000 a year.

Part four provides public funds to public school districts Impact Aid funds whose enrollment increases by reason of the closing down of nonpublic schools in that district, and part five empowers the public schools districts in those areas to purchase unused or no longer used nonpublic schools.

The suit challenges only the first three parts under the religion clauses of the First Amendment.

The District Court held unanimously that part one and part two are unconstitutional.

By a divided vote, with Judge Hays dissenting, it held constitutional the third part, the tax credit part and also held that, that part was severable from the rest of the statute.

Judge Hays dissented on both parts, now taking each of these parts to seriatim, the maintenance and repair part, the statute is quite broad in what constitutes maintenance and repair, indeed it's open ended.

It defines maintenance and repair as the provision of heat, light, water, ventilation and sanitary facilities; cleaning, janitorial and custodial services; snow removal; necessary upkeep and renovation of buildings, grounds and equipment; fire and accident protection; and such other items as the commissioner, as the state Commissioner of Education may deem necessary to ensure the health, welfare and safety of enrolled pupils.

Indeed I think it is fair to say that except for teacher salaries, this statute permits practically the state and directs the state to pick up the bill for everything in those schools.

Now, the only qualifications under the statute are that the schools be located in low income areas.

The amount given to the schools for that purpose is $30 per pupil in attendance and an additional $10.00 if the school is more than 25 years old.

Now, in Lemon against Kurtzman and Earley against DiCenso, this Court in 1971 declared unconstitutional the state laws in Pennsylvania and Rhode Island which appropriated public funds to pay for the secular teaching in religious schools.

On the same day, the Court decided these cases, it decided Tilton against Richardson which upheld on its face, not necessarily as applied, indeed quite clearly not as applied, a Federal statute which appropriated funds to pay half the cost of constructing facilities, colleges.

Now, in Tilton against Richardson, the plurality opinion, there was no court opinion, distinguished the Federal statute, the add from the statutes in the Pennsylvania and Rhode Island cases.

The Court said, in the first place, the federal statute deals with colleges and universities, and there was a rare latitude given by the Establishment Clause, under in such circumstances, because the students are mature, they can resist pressure by the teachers, sectarian pressure in other reasons and therefore the limits of governmental action are somewhat broader, are broader than those in elementary and secondary schools.

Secondly, the Court pointed out that we had there a one-time grant in each of those cases.

The money is given to that state whereas in the DiCenso and Lemon cases, there was ongoing payments each year, therefore there was a greater area of governmental involvement.

Finally, the Court pointed out that in the federal grant, the Tilton grant, the statute specifically forbade the use of any of those facilities partly financed with public funds to be used for religious purposes and indeed in that case, the Court held unconstitutional by unanimously that part of the federal statute which restricted, which removed this limitation after 20 years.

After 20 years under the statute, those federally financed facilities could be used for religious instruction; the Court said this is unconstitutional.

No funds which come from governmental body maybe used to finance any facility used in whole or in part for religious instruction or worship.

Now, in the present case, the statute applies to elementary and secondary schools not to colleges.

Moreover it is not a one-time-grant, but it's -- you have to renew it each year, and perhaps above all, the statute does not forbid the use of the facilities so financed governmental funds for religious or sectarian purposes.

Warren E. Burger:

You are speaking now of part one aspect?

Leo Pfeffer:

Part one, part one.