Lemon v. Kurtzman

PETITIONER:Alton J. Lemon, et al.
RESPONDENT:David H. Kurtzman, Superintendent of Public Instruction of the Commonwealth of Pennsylvania, et al.
LOCATION:Eastern District Court of Pennsylvania

DOCKET NO.: 89
DECIDED BY: Burger Court (1970-1971)
LOWER COURT:

CITATION: 403 US 602 (1971)
ARGUED: Mar 03, 1971
DECIDED: Jun 28, 1971

ADVOCATES:
Charles F. Cottam – for the appellants in 570
Edward Bennett Williams – for the appellants in 569
Henry W. Sawyer, III – for the appellants in 89
J. Shane Creamer – for the appellees Kurtzman et al. in 89
Leo Pfeffer – for the appellees in 569 and 570
Milton Stanzler – for the appellees in 569 and 570
William B. Ball – for the appellee schools in 89

Facts of the case

Both Pennsylvania and Rhode Island adopted statutes that provided for the state to pay for aspects of non-secular, non-public education. The Pennsylvania statute was passed in 1968 and provided funding for non-public elementary and secondary school teachers’ salaries, textbooks, and instructional materials for secular subjects. Rhode Island’s statute was passed in 1969 and provided state financial support for non-public elementary schools in the form of supplementing 15% of teachers’ annual salaries.

The appellants in the Pennsylvania case represented citizens and taxpayers in Pennsylvania who believed that the statute violated the separation of church and state described in the First Amendment. Appellant Lemon also had a child in Pennsylvania public school. The district court granted the state officials’ motion to dismiss the case. In the Rhode Island case, the appellees were citizens and tax payers of Rhode Island who sued to have the statute in question declared unconstitutional by arguing that it violated the Establishment Clause of the First Amendment. The district court found in favor of the appellees and held that the statute violated the First Amendment.

Question

Do statutes that provide state funding for non-public, non-secular schools violate the Establishment Clause of the First Amendment?

Warren E. Burger:

We will hear arguments next in number 89 Lemon against Kurtzman and others.

Mr. Sawyer you may proceed whenever you’re ready.

Henry W. Sawyer, III:

Mr. Chief Justice, may it please the Court.

This is an appeal from the dismissal of a complaint of three individual taxpayers and several organizations challenging the constitutionality of a Pennsylvania statute Act 109 which provides for the payment of tax money to non public schools to reimburse them for the cost of teaching mathematics, modern and foreign languages, physical science and physical education.

The complaint, alleged violation of the First Amendment’s religious clause and of the Equal Protection Clause of the Fourteenth Amendment.

Three-judge court dismissed the complaint on the First Amendment grounds of the basis of a fair and steady cause of action, no answer, no discovery, no trial, no record.

On the Fourteenth Amendment, ground for a lack of standing in all parties.

When this Act was passed, it was without precedent in the United States.

It’s scheme is simply this, any non-public school has but to fill out a form and submit it, setting forth its cost in these subjects for teacher salaries, teaching materials and for textbooks and that state forth with pays that amount over to the school.

The transaction is labeled, purchase of services contract.

As Judge Hastie, dissenting below said, nevertheless and I quote “the state buys no services and the school sells none.

There are no new children involved, there is no new teaching”.

The pedagogical status quo in Pennsylvania is precisely the same as it was before the Act, the only difference is economic.

The Act provides for considerable new state regulations of the schools, the non public schools and when I say non public, it’s to be understood of course that, these are largely church affiliated schools, 97%.

And 97% of that, 97% is Roman Catholic.

The Act calls for inspection of textbooks for testing the pupils and for certain levels of performance and that’s new, for the certification of teachers after a passage of time and that’s new.

Byron R. White:

State doesn’t prescribe the textbooks?

Henry W. Sawyer, III:

No sir, they are submitted.

Byron R. White:

Just as (Inaudible)

Henry W. Sawyer, III:

Yes sir.

For auditing procedures and for regulating of teaching content and those provisions of the Act are in the record at page 20, 20 to 24.

There were 17.5 million under the Act this year, first year was five and that’s in the record but since then, 17.5 million.

Now the complaint alleged particular violations of the establishment and freedom of exercise clause and there was no question raised about its adequacy as a pleading.

Byron R. White:

I’m not quite clear as to the detail of how this scheme works.

I know you said there was a contact, but what’s involved, as the state authority accepts the representations of the institution?

Henry W. Sawyer, III:

They had like on a form, Your Honor, that says that the cost for teacher salaries, for teaching materials and for textbooks was such and such for teaching let’s say mathematics and then they submit that to the state and the state pays them the money.

Byron R. White:

Well is there any order?

Henry W. Sawyer, III:

Oh yes there’s an order, there’s an order of whether or not—

Byron R. White:

Well before the money is paid, what check is made on that?

Henry W. Sawyer, III:

See we don’t know Your Honor, we have no record.

Byron R. White:

I see.

Henry W. Sawyer, III:

We can only glean this from the statute because there’s no record so we never found put how the state goes about these procedures, the crown of my appeal is that there should have been — after all I’m here on an appeal from a motion to dismiss, the granting of motion to dismiss and I will be unable to inform you about a number of things because there isn’t any record.

Warren E. Burger:

A motion to dismiss for what?

Henry W. Sawyer, III:

Sir, a motion was made to dismiss the complaint for fair and a steady clause of action for a lack of a substantial federal question.

Byron R. White:

Was there summary judgment?

Henry W. Sawyer, III:

No sir and unlike Allen, it’s not an Allen situation where both sides cross move for summary judgment after answering and nothing happened in this case except the complaint was filed and the complaint was dismissed on motion but one justice descending.

And you said that the schools submit their cost for these courses, teaching and materials and what not and the state then just pays the money so far as the complaint show because so far as we now know.

Henry W. Sawyer, III:

Yes sir, they owe the money.

William J. Brennan, Jr.:

100% of it?

Henry W. Sawyer, III:

Well no because that depends on how much is available and now the first year, there was only 4 million so that was a pro-rata.

William J. Brennan, Jr.:

Available what, in legislative appropriation?

Potter Stewart:

From a horse racing tax.

Henry W. Sawyer, III:

Well horse raising and now cigarette tax.

It’s 17.5 and I understand schedule Mr. Shane Creamer can tell you this.

I understand it will certainly go to 38 million in the forthcoming year, although on Sunday night at midnight, the state of Pennsylvania, officially went bankrupt according to the governor and so all of these bills are probably in limbo.

Byron R. White:

This case hasn’t become moot?

Henry W. Sawyer, III:

No sir, may it please the court, Act 109 is Pennsylvania’s Assessment Bill.

After 200 years, the Pennsylvania assembly attempts what the Virginia Assembly attempted and which Madison and Jefferson deferred the similarities were striking.

Byron R. White:

In fact, all you’re really asking us for is that you have a chance to try this case, isn’t it?

Henry W. Sawyer, III:

Yes sir but you can facially declare it unconstitutional, I do want to address myself to that, for several grounds on which this Court could find it facially unconstitutional.

Cases, of course here Your Honor, it must be realistic and valid, it’s — it presents problems on many levels, there is the legal level, the traditional level.

This little question that the traditional church state doctrine is evolved by this Court would appear to require the invalidation of this Act.

I discern eight grounds on which church cases have been founded by this Court and I venture to say this is the first piece of legislation ever before this Court didn’t violate all eight and I’ll come to that in a moment sir.

Could I ask you a preliminary question, (Inaudible)

Henry W. Sawyer, III:

The Court below thought not that question was raised, it’s tax money and one of my plaintiffs went to the horse race and paid the tax and he was the only one found to have admission, I think the Court ruled on that, I think a tax is a tax and public money is public money for this purpose.

There might be other cases where you a great deal question what the source is.

But when you get to the fundamentals of the First Amendment, Mr. Justice Harlan, I think public money is public money, makes no difference whether it’s a special tax, you can’t isolate it.

When there’s only there to read to skim of the briefs here to become aware Your Honors and it’s certainly true that the controversy here is pregnant with other issues.

The appellees say in their brief and as they said it at Harrisburg that unless relief and unless subsidy is forthcoming, the parochial school system will wither and decline.

On the other hand, the attackers of the bill point out at a different level that the effectiveness will be to perpetuate the effect of racial segregation that’s exemplified by the non-public school system.

Henry W. Sawyer, III:

On still another level, the proponents say, having predicted the demise of the non-public school system that the resulting exclusively public system will be deleterious to pluralistic society and we rejoin, I suppose that what you’re heading for here is a dual school system, it’s act is sustained, the one primarily affluent and suburban and White and at least typically White and suburban and elitist and the other poor, inferior, practically custodial and Black.

And that there are nations that have those systems and this is what we’re heading for.

If we’re talking simply about the traditional doctrine, there’s no precedent of course, because there’s no present legislation, the cases after Shemport (ph) discussed.

They lead, it seems to me that the conclusion that unless the law is to be changed, the stack must go down.

I do want to mention Bradfield, however since it’s come up, Mr. Justice Blackmun, first of all yesterday.

Now Bradfield as a precedent I think, Your Honor.

I’m not speaking about the situation of Bradfield because I’ll talk about that too.

As a precedent, I think Bradfield doesn’t need to troubles because rightly or wrongly, and I have a footnote which covers Bradfield in my brief at some length on page 19 and there, the Supreme Court rightly or wrongly just didn’t reach the First Amendment issue because they simply said, the fact that this corporation, a hospital corporation’s members are composed of religious people and they happen to be Catholics, doesn’t make it sectarian any more than it would if they were Methodists and they concluded, finally we are not able to say and I’m quoting, “we are not able to say that the compliant in this bill shows that the corporation is for the kind described but on the contrary, he has clearly shown it is not.

Now, that doesn’t get us away from the question and the question is how about hospitals?

Because hospitals are in a relationship with the state and that’s true in Pennsylvania today.

They are paid so much for them or indigent patients selected by the state and sent to them for treatment.

Warren E. Burger:

Don’t they receive direct federal grants under Hill-Burton?

Henry W. Sawyer, III:

Yes sir but not if they’re sectarian.

Not if they’re sectarian, that’s my understanding and here again we’re without a record so Your Honor has asked me, I was on the board of this group of hospital in Philadelphia and we added not (Inaudible) of the board, we did a number of things of that kind, we did attach ourself for all relationship with the archdiocese in order to get Hill-Burton funds.

Now, I think that’s what happens in the hospital cases.

I’m speaking of the kind of thing that might be analogous to our situation, that as you treat a patient and you get paid so much.

My rationale is this, and these are the differences and I think they probably all have to exist for the hospital situation to prevail constitutionally.

First of all, to recognize that it is not a church and the care of the sick is not a mandated, a mandated religious function, it’s part of the good work ethics of most all religions.

It doesn’t therefore teach or proselytize, it does not prefer, I don’t think exclusion is necessary, I think any distinct preference is sufficient to make it unconstitutional and finally, and most important, this is true purchase of services.

Here the purchase of service is not a subterfuge, here the status quo is not the same after as before because new, specific individuals who are discernible and could be tracked or treated who would not be treated if they were not for the use of this facility.

So I think all of those differences are important to the situation and I don’t, for one minute agree if Mr. Pfeffer did, I’m not quite sure he did that the state can subsidize a church to carry out a secular function.

I think it can only do that Zorach v. Clausonunder very special circumstances and the hospital one is one of the very few that I can—

Byron R. White:

Mr. Sawyer, will you still distinguish the hospital situation even though it maintains a chaplaincy staff.

Henry W. Sawyer, III:

Yes I think the mere maintenance — all of these other qualification is present, the mere maintenance of a chapel somewhere on the premises would not be sufficient but I think if somebody said that I don’t think you can be made to go through the chapel either on your way to be cured or in thanks for having been cured on your way out.

Byron R. White:

But what about what I was mentioning a chaplaincy staff, four or five chaplains of a particular denomination maintained by the hospital, does this make a difference?

Henry W. Sawyer, III:

Your Honor I think you keep adding things and finally we will get to the point.

By itself, I would say no, not if there’s not any opportunity of the charitable patients in any way, the mere availability of the staff, I would say no.

But I think you can keep adding until it begins to be a permeation of the curing function with the religious function.

Now I do want to mention Allen because the briefs in Allen, all the briefs in Allen misstate Allen’s facts and I must say that — I have to say that that misstatement is based on a misapprehension, I think of Allen’s facts in the Walz opinion.

I’m referring to the — it is alleged that the Court in Allen sustained a New York book law even though the affect was to relieve the schools of quote, Walz said, “the enormous aggregate cost for those books”.

Henry W. Sawyer, III:

Now actually, the footnote in the Allen case, footnote 6 makes it clear that the parents previously bought the books, not the schools so that there was no relieving of the burden previous, that the school previously had carried.

Now there’s another point in Allen, factual point that I haven’t seen coming as the one at all and that is this — that prior to the 1965 amendment in New York, the state didn’t pay for public school children’s books.

They could be paid for by a special provision, 703 with a local tax.

But you see, that means that there, the New York legislature was conferring a benefit namely free books on all children that had not previously existed.

It is quite clear, you’ll see that in a footnote in the Allen case at the very beginning in Justice White’s opinion that until 1965, and I’m quoting from the second paragraph, the state purchased books and so and so to rent or sell the books to the public school children.

And now therefore, the preamble there that they were doing — standard for education took on some plausibility and they were supplying to all children something they didn’t have before and indeed, could this Court have said in Allen that the New York statute was unconstitutional unless in the process of giving books to all children, the New York legislature had said but catholic children can’t have them?

Now the analogy in Pennsylvania, you see would be if Pennsylvania in order to fulfill a lack of teaching in mathematics and the physical sciences, etcetera, a lack of teaching had set up somewhere either tutoring or some facilities that teach these four subjects.

And then you have that kind of situation and then would we come in and say, well the Pennsylvania Act is unconstitutional because it doesn’t exclude catholic children from these facilities but of course nothing like that happened.

Now in that sense, Allen it seems to me —

Potter Stewart:

What if there had been a shortage of mathematics teachers, the state had set up a center to teach teachers in these subjects including sisters of Roman Catholic orders.

Henry W. Sawyer, III:

Teach them free?

Potter Stewart:

Yes, with tax money to —

Henry W. Sawyer, III:

That’s a hypothetical situation, Your Honor that I would think would be constitutional.

I think you could offer — the state can offer free education to anybody even if the free education includes education as to how to educate in the catholic school.

Warren E. Burger:

We’re on a hypothetical on your staff, let me ask you another, suppose the Board of Public Education state provided panels of public school teachers, hired on public school standards to teach all these non-sectarian subjects and provided by the Act, any private school meeting certain other scholastic standards of law could have one of these teachers to teach mathematics or chemistry in their school under the direction of the state.

Do you see an involvement there?

Henry W. Sawyer, III:

I see a lot of problems with that kind of legislation Your Honor and of course it talked about, I don’t know how this Court would resolve that problem, I think it’s difficult, there’s entanglement there, there’s a really involvement problems.

I really am not trying to evade it.

I thought about it and I’m not at all sure, Your Honor how I could brief that question to this Court, I think it’s a very, very close case.

It certainly is not this one.

Warren E. Burger:

It isn’t our case anyway.

Byron R. White:

The same thing goes about tuition grants?

Henry W. Sawyer, III:

Yes sir, voucher kind of plan, I think presents problems but with there I think I can say with confidence that the constitutional magnitude of the problems in the voucher plan are pale and insignificant as compared with this Pennsylvania situation.

I want to mention just this about Walz, Walz certainly made one important negative point.

Quite clearly, Walz refused to validate the exemption there on the ground that churches, by good works, by welfare and charitable works, perform a secular function which otherwise were have to be performed with public expense.

The Chief Justice clearly renounced, speaking for the Court, clearly renounced that rationale.

That seems to me to pretty well jeopardize the argument of the appellees that the main reason of this is constitutional is because this is a secular function and that the fact is being performed by a church makes no difference.

The other important thing is the concept in Walz — both interdependence and entanglement.

I think they are somewhat different.

Here in the interdependence, is on the face of this Act.

Henry W. Sawyer, III:

The legislature has said, we are now dependent on the church school system to carry out our mandated constitutional duty of educating children and in the brief filed here, the church has now said, we are dependent upon the state subsidy to carry out our church mandated function of educating adherence to our faith.

As to entanglement, and I think the very core of Walz was entanglement because it seems quite clear that that it was the concern of the Court that taxation would mean more entanglement than exemption.

As to entanglement, this Act has a great deal of it, far more than I think any of the other legislation involved in this series of cases.

Not only these inspections and these teacher gradings and all of those new rules but very, very important, section III (III) of the Act 109 forbids, “any subject matter expressing religious teaching or the morals or forms of worship of any sect,” to enter into the teaching of these subjects.

Now does this not require the state to conduct a very continuing surveillance to use the Chief Justice’s words which the Chief Justice said was the very hallmark of entanglement, impermissible entanglement.

Now, we don’t charger there’s going to be a wholesale evasion of this by let’s say the catholic schools but we do say that it’s only an arch secularist who would insist on the immutable secularity of any subject, particularly something like physical science.

I mean after all it was astronomy and not theology that got Galileo in trouble, and the physical science is all upfront, it seems to me with the temptation and likelihood.

In fact, I think that we could prove if we had discovered that a cleric should not and ought not to teach astronomy without making it God-oriented in a religious school.

Now, I think the state has got to therefore police this, and I don’t think that any gumshoe from the department of education should be lurking around to see if Sister Mary is using the Bible in French to teach the French language instead of Voltaire.

I think it’s unconstitutional, I guess the worst kind of entanglement with vengeance.

Now as to the purpose and effect test, of course, the District Court ignored the fact because we had no record.

As purpose, they took the Act’s preamble, they took the Act’s self-serving declarations of secularity, they refused to look—

Byron R. White:

You say there’s a difference between purpose and effect?

Henry W. Sawyer, III:

Yes sir.

Byron R. White:

I think there are separate tests?

Henry W. Sawyer, III:

I think there are separate tests.

Well, there are two aspects to one of the tests I think they could be separate, yes because, I think as it was articulated both by Chief Justice Warren in McGowan and by Your Honor in your concurring opinion in Schempp that both requirements had to be satisfied, therefore in that sense they could be separate because if either the primary effect.

Byron R. White:

I thought what I said in the concurrence in Schempp was after joining, the court’s purpose and effect test, mine was simply an elaboration on the purpose and effect test?

Henry W. Sawyer, III:

Yes sir.

I think they can be separate.

Byron R. White:

I don’t think that that concurrence regarded them as separate tests.

Henry W. Sawyer, III:

You think you did not separate between purpose and effect, there’s two tests.

Byron R. White:

No I don’t suggest that, I say that that was a purpose and effect test and some other test, entanglement or involvement.

Henry W. Sawyer, III:

Well I think Your Honor, I really think that all of these tests and I think there are eight threads, are a seamless web.

I think everyone affects every other one fascinatingly enough every single one can be found on the memorial and remonstrants.

Not one single one of the tests that the Courts uses, I do not find somewhere in the language of that document.

But as the purpose, the District Court simply refused to look at the legislative history and this is official legislative history because Pennsylvania prints it all apparently on the mistaken notion that I was trying to get them to examine into the motives of the legislator.

Well I wasn’t getting into the motives, I was talking about the committee reports and the full legislative history and the significance is this.

The appellees say the purpose here is to provide children in Pennsylvania with instruction in these four subjects as the preamble said.

Well, if you look at the legislative history, you’ll find that nobody ever suggested there was any such problem.

Henry W. Sawyer, III:

Nobody ever suggested there were any children in Pennsylvania than not being instructed in these subjects.

If that had been the search, the committee would have explored presumably for alternative means of teaching these subjects.

What they explored was all of the ordinate means of giving aid to the parochial schools from shared time and all the way through to this device which they finally adopted.

It means, it seems to me there’s only one question and that’s whether or not the supposed exigencies, economic exigencies of the subject, the overwhelming sociological considerations are such as to persuade this Court to assure strict construction in submission to what is said to be the practical realities.

And you’re asked to do this by the way without a record.

Now there’s been a contention of fact made here and that is that if the aid isn’t forthcoming, this school system will wither and die.

I don’t think it’s relevant, if it is relevant, it must be pleaded, it must be proved and I’m entitled certainly to extensive discovery on the question because here the appellees in effect are asking this Court to take judicial notice of a point of economics and sociology about their school system which by the way the known statistical data is on which it’s quite equivalent with this point, you know we’re having a decline in all schools at that level.

Byron R. White:

The legislative findings of it Mr. Sawyer?

Henry W. Sawyer, III:

The simple finding was that there’s a financial crisis, that’s all.

And of course I know of no institution and our society except perhaps the military that isn’t in a financial crisis and I assure that the schools are — the public schools are in a financial crisis and I accept that but there’s no finding in the sense that so many schools, this and the closing there have been consolidations.

Warren E. Burger:

Suppose it is true, suppose the record showed conclusively that this was true, how does that fair on the constitutional question in your view?

Henry W. Sawyer, III:

In my view, Your Honor, it doesn’t bear at all and there’s no doctrine that says that if something is more expensive, to be done constitutionally, that’s a grounds for doing it unconstitutionally.

But we cannot be unaware Your Honor with a massive amicus briefs that this issue has certainly upturned itself very much into this case then is raised by the appellees in the brief in this Court and it’s there and they say it’s there.

I’m skeptical as to agree that it’s there and I’d like to have discovery on the question before a vast principle of constitutional law is asked to be decided by this Court on the supposition that there is this kind of practical problem.

And to speak very candidly, raised by a church where the figures would show that the capital of assets of the church vastly exceed that of every other denomination in the United States combined.

And I don’t, for one believe that because of financial difficulty that the Catholic Church is going to give up a mandated function for which they fought and indeed in Philadelphia in 1941 died for the principle in the condition of affluence in which everyone in society now finds themselves.

Now, I must get on if I may that the Fourteenth Amendment point, there the Court said no standing, in any of my plaintiffs, the charge was that the non-public schools or de facto racially segregated rather by reason of policy or tradition or practice or cost or residential pattern that they are.

But basically it’s a White school system, the figures that are available from public sources are in the brief.

Again we have no record.

The idea is this, that with this amount of tax money going to these schools, they are sufficiently quasi public so that if they discriminate and segregate that is state action reachable by Equal Protection clause of the Fourteenth Amendment.

As for standing, I think it’s a case where to find out whether or not Mr. Lemon, who is a Negro parent with Negro children in the public school than who alleges in his complaint a deleterious effect upon his children’s schools by reason of the subsidy to the others, whether he has a sufficient personal stake in the outcome which has been the touchstone of standing in these matters, he is a taxpayer, would be illuminated by discovery.

I think the two are interchangeable because it may depend indeed on how pervasive the segregation is and how much discrimination there is, and we can’t find out any of that without discovery in the matter.

Now I mentioned, — well one point more on the Fourteenth Amendment point, Mr. Douglas, not so long ago said this in Jones against Mayer said the contrivances with some states have concocted to afford to command of our decision in Brown versus Board of Education are by now legendary.

Now, I for one can’t, (Inaudible) how if you validate a purchase of services contracts scheme where in fact, no new educational benefit is being conferred, it’s merely a method of channeling funds, how that device is not going to be available to the formerly, they adjure state still resisting Brown v. Board of Education.

Maybe that’s possible to cut it.

I for one would think difficult.

Now I said in the beginning that I thought there were eight tests used by the Court and that this Act violated all of them, just in a sentence, first of all the general flat principle no tax money to churches coming down from the memorial or remonstrants might stay through the language of many, many of these cases and that’s on the face of the Act.

Then the primary purpose, if that’s one and primary effect, primary purpose, it seems clear from legislative history, primary effect, we do need discovery, I think one can discern that there is some primary effect.

Then the concept of sponsorship which was in McCollum, it was certainly an angle, Mr. justice Brennan distinguished the Zorach v. Clauson situation from the McCollum situation on that basis, it was in Schempp that is the state must not sponsor or even appear to sponsor a religion which is one of the points of Schempp.

Then preference, the fact that this Act manifestly prefers one religion over all others and prefers that very most two or three religions over all others and affirmatively discriminates against those religions too poor, too scattered to even think about running a school system black store front, mission type of churches for instance.

Henry W. Sawyer, III:

Then interdependence, and that’s on the face of the Act because the Act says it’s dependent.

Entanglement and that’s shown by Section III (III).

Excuse me Your Honor, I didn’t see the red light.

Warren E. Burger:

You may finish your points and will enlarge the —

Henry W. Sawyer, III:

Thank you sir, I have just one more.

Entanglement and finally point eight, if it’s secular, the Act nonetheless does use religious means to accomplish a secular end.

And in my research I find no matter before this Court in which all aid of those tests would appear and some facially, three facially to be violated by the Pennsylvania Act, and thank you for your indulgence Your Honor.

Warren E. Burger:

Thank you Mr. Sawyer.

Mr. Creamer?

J. Shane Creamer:

Mr. Chief Justice may it please the Court.

I am Shane Creamer, the new Attorney General of Pennsylvania.

As I had informed the Court by an earlier letter I took office in late January and since my entry into office is very recent and my coming into this case is very late, I will not be arguing this case today.

However, it is my desire to emphasize to the Court that the commonwealth has filed a brief in this case that I have studied that brief and I can concur fully in those arguments.

I likewise studied the brief of the appellee schools and fully concur in that brief.

I shall now turn the argument in this case over to my associate, the attorney for the appellee schools, William B. Ball desiring however merely to conclude with this one statement.

The commonwealth, as Mr. Sawyer has indicated is and has been in deep financial crisis.

The public schools of Philadelphia, Pittsburgh, Scranton and the coal regions are faced with bankruptcy.

One out of every four children, close to 600,000 presently attend some 1181 non-public schools in Pennsylvania.

In Pittsburgh, our non-public school population is 29% of the total school population.

In Philadelphia, it’s 34%.

The public schools of Pennsylvania could not begin to take on the burden of any substantial non–public school population.

It is not a question of it’s being more expensive, it’s a question of impossibility.

The Act under question today is Pennsylvania’s solution to an educational crisis.

We therefore urge this Court not to upset this Act which our state needs so vitally.

Warren E. Burger:

Then you tend to agree with Mr. Sawyer’s point if this Act, the orientation, the genesis of this Act was to aid distress situation in the private schools of Pennsylvania.

J. Shane Creamer:

The crisis in education and paying for education Your Honor, yes.

Thank you very much.

Warren E. Burger:

Mr. Ball?

William B. Ball:

Mr. Chief Justice and may it please the Court.

I’m speaking here today for seven Catholic, Protestant and Jewish name dependent schools who are the appellees in this case.

William B. Ball:

I think Mr. Chief Justice, I should begin by trying to clear up a point which hangs over the case at this moment, a preliminary point which relates to the question of whether the Court below improperly denied discovery and trial to the appellants and it is our contention that what the appellants have brought to this Court today Your Honors is an attack limited to the facial constitutionality of this Act.

Their complaint resided that they attacked the Act both on its face and as applied.

Let me come to the apply constitutionality point for a moment.

Their complaint in paragraph 7 says that they attack, they sue these seven schools as representative of all sectarian educational institutions in the commonwealth, defendant class action.

We then brought a motion under rule 23(c) to test this application.

We wanted in other words to afford Due Process for the seven schools which have a great deal of variation among themselves for all the remaining 1174 schools in the commonwealth which are under contract and finally even to the plaintiffs so that they would have an opportunity to come in and prove classes and subclasses and whether one or more or any of these schools belonged to any of this particular classes.

Now the plaintiffs at this point withdrew their class action.

They filed an answer which is contained in the appendix at A42, plaintiff agrees that the action will not be maintained as a class action under Rule 23(c).

This was followed promptly by the pre-trial order of the lower Court which said, the action shall not be maintained as a class action.

Therefore, the issue of representativeness of these schools went out of the case.

This was the first wing of their application attack, coming to their second wing.

Did they attack the seven schools, the application of the Act as applied to just the seven?

The lower Court asked that all parties submit a memorandum on the propriety of convening a three-judge court.

Did the plaintiffs want a three-judge court or not?

They insisted upon a three-judge court and in their memorandum, thinking now of whether they attack the application of this Act to these seven schools.

In their memorandum on the propriety of a three-judge court, A60 in the appendix, they said, certainly it would be a strange misreading of the complaint to in any way construe it as limited to a particular grant, to a particular school or class of schools or to anything less than an attack on the entire statutory scheme.

And my friend here on oral argument nailed this down, if it weren’t nailed down sufficiently, by saying A65 in the record, I am not saying and I think I have made this clear that this Act is only unconstitutional as to these defendant schools.

I am talking about it being unconstitutional in its entire purpose, thrust in effect, in 67 counties of the state of Pennsylvania.

I think therefore, we have to face the question of what is left in this case, plainly an attack on the facial constitutionality of the Act and in that event, what would be uncovered by the discovery and trial which the plaintiff so eagerly seeks.

Well, let’s ask, that tax money is involved, it’s on the face of the Act.

The Act calls for the expenditure of tax funds.

The payments are made to sectarian institutions, the Act calls for payments to be made to sectarian institutions.

The Act defines a non-public school, the payee in this Act, a non-public school as any school in which the requirements of the compulsory attendance law may be met or any school plainly include sectarian schools, that sectarian schools have sectarian purposes, would this be brought out upon discovery and trial?

This Court is taking judicial notice of this.

This Court stated in Board of Education versus Allen that parochial religious sectarian schools, church related schools serve two goals, secular and sectarian.

Therefore there would be nothing to be discovered upon trial with respect to that or that a high percentage of the non-public schools in Pennsylvania are under Catholic auspices.

Indeed the Court must be deemed to have known that in Allen, this indeed is a fact of which this Court can take judicial notice, that seven schools blend sectarian and secular instruction.

Well, if they do and they may, but if they do, this is in violation of plain terms of the Act is contained in section III, subsection III which provides that in the teaching rendered, if the school is to be paid, there shall not be included any religious teaching or the morals of forms or worship of any sect and I will come back to that provision of the Act in a moment, Your Honors because it’s one that I would like to discuss under a discussion of the Act itself, in terms of the Act itself.

Now, only this Court can say whether the lower Court was right or wrong and its estimation of whether this Act stands up on the Establishment Clause.

But if the lower Court believed that this Act was constitutional under the Establishment Clause, certainly the lower Court was not merely within propriety but mandated to grant our emotion under Rule 12 (b) 6 rather.

William B. Ball:

And this was with complete propriety and with complete Due Process to the plaintiffs.

It’s perfectly evident this case has been down here for a long time, as perfectly evident it seems to us that this case is ripe, if not overripe for a decision by this Court as to the facial constitutionality of this Act under the Establishment Clause.

And I would like now to come to the terms of the Act itself because I think with all due respect to Mr. Sawyer that he and I have read different Acts 109.

Hugo L. Black:

Where is it published?

William B. Ball:

Pardon me sir?

Hugo L. Black:

Where is it printed, the Act?

William B. Ball:

The act is printed Your Honor, appendix A18.

Hugo L. Black:

That’s all of it?

William B. Ball:

Pardon me sir.

Hugo L. Black:

That’s all of it?

William B. Ball:

Yes sir that’s all there is of the Act, except for the Cigarette Tax Amendment Your Honor, to which our brief referred on page and footnote 2 which simply changed the basis of the funding.

Hugo L. Black:

You mean they’re making the cigarette (Inaudible)

William B. Ball:

Yes Your Honor, that’s right, that’s right.

Hugo L. Black:

Any addition to the horse race funds?

William B. Ball:

No Your Honor, in substitution for the horse racing finds.

Hugo L. Black:

Oh I see.

William B. Ball:

This Act represents one state’s effort to grapple with a serious social problem which it’s faced, like a number of other states that face the same problem.

The Act covers all non-public schools, that’s cast in the familiar purchase of service parks which is well established in field of hospital care and child care as a traditional means of providing limited and partial support to the achieving of publicly needed functions by bodies capable of doing it.

It takes a fixed percent, speaking now in terms of limitations in this Act, it takes a fixed percent from a single set tax source as the fund, does not take any money from the general fund of the state, it does not take any money from the public school fund.

Section V of the Act contains a specific stricture saying that no funds raised for the support of the public schools shall be used for the evenly administrative purposes of this Act.

Hugo L. Black:

Would that affect its constitutionality?

William B. Ball:

It would in Pennsylvania, Your Honor.

It would in Pennsylvania.

Hugo L. Black:

Would that affect the federal constitution?

William B. Ball:

I do not think so that this is a question that could be answered.

However, under the Pennsylvania constitution, there’s a specific stricture against use of the public school fund.

Now, it takes this money and it pays it by reimbursement.

The first payment under this Act is not made by the state.

The first payment is made by the school, the school pays for certain services rendered in four subjects, four prime, national, public interest subject, mathematics, modern and foreign languages, physical science and physical education.

When the state has ascertained that the school has paid for such instruction, then and then only and —

Byron R. White:

Well, what the state has ascertained that the school has paid for such instruction, what does that mean?

William B. Ball:

That means that the school will have presented to the state, Your Honor a claim containing three elements of cost.

State approved textbooks, by the way, these are not textbooks that the school submits to the state, there are textbooks that the state must approve, that’s specifically provided for in the Act.

State approved textbooks, state approved instruction materials in the four subjects and finally that part of a teacher salary which is allocable to the teaching of math or modern foreign languages or physical science or physical education.

That claim is submitted in a form which is contained in the regulations and after audit.

Byron R. White:

Now what does audit mean?

William B. Ball:

Audit means that the state uses the procedures it would use in the case of the public schools and it audits the accounts that relate to these three items of expense.

In other words, to prove out —

Byron R. White:

What inquiry is made whether in fact these three items of expense do or do not involve any religious instructions?

William B. Ball:

The audit doesn’t relate to this, Your Honor.

The audit does not relate to any inspection of the performance of the teacher which would be the only item you’re talking about because the textbook itself and the instructional material itself are already state approved.

Now the teacher, as far as the teacher’s role goes, there is no inspection or monitoring of the teacher’s performance.

Byron R. White:

Now, the teachers include whom?

William B. Ball:

Teachers include persons who are employed by the school to teach in the schools.

Byron R. White:

May they be nuns?

William B. Ball:

Indeed they may Your Honor.

Byron R. White:

They may be.

William B. Ball:

Indeed they may, yes, indeed.

Byron R. White:

Do these inspections contemplate on the inquiry into —

William B. Ball:

There is no inspection provided for in the Act, Your Honor other than audit.

The controls, the secularity —

Byron R. White:

Would you be concerned?

William B. Ball:

Would I be concerned?

Byron R. White:

If there were a inquiry into what a particular nun did or whose expense, reimbursement or so?

William B. Ball:

I would be concerned with respect to her performance in terms of quality.

Byron R. White:

I’m wondering if you’d be concerned as to that kind of inspection of member of a religious —

William B. Ball:

Yes I think I would be certainly.

Byron R. White:

On what school?

William B. Ball:

I would be concerned with it in a public school as well as in a private school.

In public schools Your Honor, we have people of intense religious commitment.

William B. Ball:

We have teaching in public schools in Pennsylvania Ministers.

We have girls in Mennonite bonnets, I have been defending some Mennonite people in Virginia recently and I can tell you that they’re as religiously committed as human beings can be.

But we trust, we trust these people, having made a commitment under a state contract, we trust these people to observe the law.

I think this is what your question goes to.

Potter Stewart:

Suppose you found a fact that they did not, like from whatever source you learned that, then what would happen?

William B. Ball:

If the state found that this neutrality was not observed, that this provision of the Act which says that there may be no introduction of religious teaching in the four relatively non-value related courses in question, then the state, if I may finish my sentence Your Honor.

Potter Stewart:

Yes, please.

William B. Ball:

Then the state would not be able to pay.

The state would not be able to make the payment.

Potter Stewart:

Well doesn’t, there hasn’t of that kind of inspection, that kind of inquiry, doesn’t that get the government officials into inquiries into religion that —

William B. Ball:

Well Your Honor the problem I have with your question is that I do not know of any inspection, any monitoring that takes place of the instruction.

The safeguards that this Act contains are like the safeguards found in Board of Education versus Allen where indeed the New York Civil Liberties Union’s main brief, the main brief in the case said that there can be no secular instruction in a sectarian school and that if you put the textbook, the state furnished textbook into the hand of a sectarian teacher and in particular, a religiously committed person, then it was inescapable that that person would per force introduce whether dishonestly or out of the misplaced idealism, would per force introduce religious values into that teaching, a matter which by the way is pedagogical nonsense.

But, what this Court said was that we cannot presume that public school administrators and the people administrating the New York Act, section 701 of the New York Act will not act with honesty.

And indeed we cannot.

In the public school system today, there are many people who dealt us would wish to introduce their own religious value concepts in the teaching, particularly of the social sciences.

And who might want to engage in Bible reading, prayer and other religious practices which the law of this Court, law of the land says they may not do.

We trust them to observe this, we don’t have a religious monitor placed in the public school classroom, neither do we, neither should we in the case of the teaching of these four subjects merely because they’re taught by non-public school teachers who indeed may be that part of our community, a girl from this neighborhood or from that who makes her religious profession no less a profession than many other people make.

Hugo L. Black:

Who employs these teachers?

William B. Ball:

The non-public school employs the teacher, the non-public schools in Pennsylvania are Catholic, they are Protestant, they are Jewish, they are non-sectarian, etcetera.

Hugo L. Black:

Who employs the teachers for these particular schools?

William B. Ball:

The school employs the teachers.

Hugo L. Black:

(Inaudible)

William B. Ball:

The school, in the case —

Hugo L. Black:

Who runs the schools?

William B. Ball:

It depends upon the school in question, Your Honor.

Hugo L. Black:

What?

William B. Ball:

It depends upon the school in question, since there has been no application attack on this Act, we don’t have, though there could be made an application attack on this Act, we do not have a particular instance of a particular school.

For example, Akiba (ph)

Hugo L. Black:

But suppose they have been controlled by the church that runs —

William B. Ball:

They may be and indeed many schools are.

Hugo L. Black:

(Voice Overlap) they are, not maybe.

William B. Ball:

No, I represent for example Akiba Academy.

Akiba Academy is not controlled by any church so far as I know, it’s a Jewish school.

Hugo L. Black:

Is it a Catholic school?

William B. Ball:

Before speaking of catholic schools, they are controlled by the church, yes.

Hugo L. Black:

And the contribution goes to the Catholic schools?

William B. Ball:

There is not a contribution, Your Honor if I may say.

Hugo L. Black:

Whatever you call it.

William B. Ball:

Well I do call it something different Your Honor.

The payment that is made is the payment that is made to reimburse an actual cost, after that cost has been encountered, has been encountered in the performance of the secular function, has been encountered in the performance of the secular function which is evidently needed to be performed in Pennsylvania and which does not depend, by the way upon whether, in answer to Mr. Sawyer’s point, whether this function was being rendered before because of the test of a constitutionality of any purchase of service, it is made depend to upon whether a new service is brought into being, some expansion of service, this wouldn’t make any sense at all, the test laid down by this Court in Allen was not whether new services were being rendered but indeed whether a valid secular function was being performed, a public interest matter, a public interest service that the state needs to have performed.

And in Pennsylvania today, this is badly needed.

One fourth of all of the children of the state are in parochial schools and they have been for decades.

This enormous burden is borne by these schools.

And if we say that they cannot, if we are to say they do not perform secular functions, a thing we passed I believe in Allen two years ago, if we say they do not perform secular functions, then we are really saying that there is no reason for the compulsory attendance laws of Pennsylvania and in fact everything wrong with using the compulsory criminal sanctions of the state to require children to go to those schools, to require children to go to those schools if in conscience their parents say they prefer to have them there rather than in a public school.

Harry A. Blackmun:

Mr. Ball, help me along at this point.

I don’t know whether you’re making an argument that need gets you over a constitutional hurdle or not but this isn’t really what I am concerned about.

When the state in the phraseology of the Act purchases these functions, I don’t know whether this is euphemism for a grant or not, doesn’t it free the institution to use the dollars it does have for religious purposes?

William B. Ball:

Well, I have two answers for that Your Honor, first of all, if it does, then also this happens in Medicare with Methodist, Catholic, Jewish in physical hospitals and so on. Second, because these are run by religious institutions.

But secondly however, I try to say a few moments ago, Mr. Justice Blackmun that the payer, the initial payer, under the Pennsylvania Act, is the school itself.

It has to spend before the fund is replaced.

It’s not as though, it got a bounty on top of what it already has.

You see one of the things, when this Act was being drawn, that I recall very, very well was the Auditor General’s insistence and the Attorney General’s insistence, Mr. Creamer’s predecessors insist that it be shown that the amount claimed had been actually expended.

This is a quality provision in the Act, like the standardized testing and so on, to make sure that the school plowed into this Act, plowed into this service, rather, plowed in to child education, its own money before this would be replaced.

Harry A. Blackmun:

To what extent is it plowed in if it knows it’s going to be reimbursed?

William B. Ball:

If it knows it’s going to be reimbursed, if it’s going to meet the test that the state has required, it will have satisfied the standardized testing requirement and the audit requirement.

Yes it knows just as a sectarian hospital knows that it can count on this money coming in.

And indeed it should.

This is one of the purposes of this Act, there’s no doubt about it.

There’s no concealing in our part having those, Your Honor, but the fact that one of the purposes of this Act is to keep one quarter of Pennsylvania’s educational plan going.

We make no (Inaudible) about that.

William B. Ball:

These schools are doing a tremendous job in the public service and the question is then, are they in the educational field?

Do they serve the public and if so, can they be aided in any way, can they be aided in any way in this very limited form of supporting the services they render seems to us to be a way which has no primary effect of advancing religion, there is no Catholic calculus, there is no Lutheran logarithms or Jewish gymnastics.

We’re talking about aiding them to perform a service that everybody has to have.

Harry A. Blackmun:

This is the problem for the large dimensions – we have indicated in some of the cases from the south that where the state finances a private school becomes a state agency.

Are these state agencies and this race is the question with the Brown versus the Board of Education.

William B. Ball:

Yes Your Honor.

Harry A. Blackmun:

Now applies to this school.

You don’t address yourself to that in your brief, as I read it except to say that the persons present here didn’t have a standing to raise it?

William B. Ball:

Well Your Honor, it was up to the plaintiffs of course to frame their complaint as they would bring to bear the parties whom they would and had they had Equal Protection standing, had they a single plaintiff, one individual or anybody who had Equal Protection standing, indeed we would be prepared to argue the Equal Protection issue here today, but since you inquire, Your Honor, with respect to state action and whether these schools would be participating in state action by virtue of the fact that they receive some funding from the state, I think would be a question of degree, I would say it’s a question, it is a question.

I was thinking of the case of Powell versus Miles, Judge Friendly’s decision on the issue of state action.

And certainly it is true that there’s a vast difference between receiving say 10% of your income from the state and a larger percent and what other things may be involved in creating the state action situation.

In a proper case, will we have to brief and argue that point very thoroughly.

Harry A. Blackmun:

So a Black could get into one of these Catholic schools even though he wasn’t a Catholic?

William B. Ball:

Oh indeed a Black could get into one of these Catholic schools if he were not a Catholic.

We have schools in the inner city of Philadelphia.

Harry A. Blackmun:

An agnostic?

William B. Ball:

Oh heavens, yes.

We have schools in the inner—

Harry A. Blackmun:

Any Black could get in there?

William B. Ball:

A Black Agnostic to Black Protestant to Black Catholic, we have schools, Your Honor in the inner city of Philadelphia which have been the tie together of racially mixed neighborhoods over the decades and which are to a substantial extent made up of protestant Blacks, who after graduation become alumni Black Protestants.

Harry A. Blackmun:

I know a lot of Presbyterian and our Presbyterian schools always welcomes a chance to get a Catholic and work him over.

Byron R. White:

Mr. Ball let me get back to one question and I’ll stop.

What difference in the ultimate result is there under the Pennsylvania plan and if it provided X dollars for the purchase of religious instruction?

Is there any difference in the ultimate result?

William B. Ball:

Every difference, Your Honor.

Byron R. White:

How, the schools end up financially exactly the same way?

William B. Ball:

Well, to begin with under this Act, the state cannot pay for a religious textbook and under the constitution they cannot pay for religious instructional materials and under the constitution.

And thirdly, this Act prohibits any teacher from teaching or introducing any religious matter into mathematics, modern and foreign language, etcetera.

Now, if the state provided money for the teaching of religion to support a religious course which would be patently unconstitutional, yes the school might get, certainly the school might get the same income but the constitutional result would be, 183 is different.

If a given school, religiously affiliated school, today were to claim $800.00 for the teaching of math during that year and under the Act you’re speaking of, the unconstitutional Act of which you speak, Your Honor, it would get $800.00 for the teaching of religion, no financial difference but the constitutional difference would be totally different.

Byron R. White:

Well, except that the school is using its other dollars for what is not replaced by the State Act, would not result identically the same, is it not so?

William B. Ball:

If the state were to pay the school, $800.00 for the teaching of religion, and then the financial result would be the same, yes Your Honor, the financial result would be the same.

But this of course would have been true of the financial result in Allen, this Court said as to Allen that in effect, the effect of the New York Textbook Act was to save the schools, the parochial schools, an aggregate sum of millions of dollars.

This didn’t seem in the view of the Court of Walz, May 1970 to render the Act of New York unconstitutional.

Byron R. White:

Well, there to say that the difference in Allen was that the parents there to for had been paying for the books.

William B. Ball:

Well this is what he said, I don’t think this is true on the record in Allen, I think in some situations they were and in some situations they were not.

I should like to conclude, Your Honor by a quote.

Hugo L. Black:

I would like to ask you one question.

William B. Ball:

Yes Your Honor.

Hugo L. Black:

I asked you something along that line a while ago.

I think it’s relevant, it may not be relevant in these schools, I’m not talking about now, are there any of these schools in which those who control the school, the Catholics or the Jews or any other religious teachers’ organizations, both hire and discharge the teachers?

William B. Ball:

If I understand your question correctly, are there religious schools in which those who control the school hire and discharge the teacher?

Hugo L. Black:

That’s right, not the state.

William B. Ball:

Yes, undeniably sir.

Hugo L. Black:

The state has nothing to do with it.

William B. Ball:

Yes I cannot say as to these seven schools which are the only defendants in this case but looking to your question which perhaps relates to facial constitutionality, yes I would be sure that would be so. May I conclude Your Honor?

We stated in page 13 of our brief the following, in our now heavily welfare oriented society, massive governmental spending is dominant and individual men and women, even when banded together in associations and institutions, no longer possess the economic resources with which to maintain diverse non-state endeavors in education and welfare.

Your Honors, education is certainly the most precious aspect of voluntarism that we have, the most meaningful in terms of a free society, the economic and financial data which we have set forth in our brief shows the obvious that taxes and inflation are simply going to render it impossible for schools such as those that we are describing to continue to render service and to give individual parents, the opportunity for a conscientious choice in education.

I think it’s very clear that this act on its face is general legislation, it contains no religious classification or gerrymander, it is non-preferential, it employs essentially religious means to achieve essentially secular ends, without any primary effect of advancing religion, inhibiting religion and I must refer you there to our brief on entanglement, because we have had an inadequate opportunity to discuss the whole question of entanglement.

But we are up against the facts of life in Pennsylvania, not figments of fine spun doctrine which never proceeded from the minds of Madison or Jefferson, we are up against such facts as Mr. Creamer has described.

There is no reasonable alternative to this Act.

Pennsylvania and her public schools are bankrupt, millions of parents and children will be irreparably harmed, if this program which is now in its third year of operation and going into its fourth year of operation should be terminated.

I thank you Your Honors.

Warren E. Burger:

Thank you Mr. Ball, Thank you Mr. Sawyer, Mr. Attorney General, the case is submitted.

We’ll hear arguments next in Number 569 Earley against DiCenso.

Mr. Cottam.

Charles F. Cottam:

Mr. Chief Justice, members of this honorable Court, if it please the Court, I will open and present the case numbered 570 and will be followed by Mr. Williams who will present 569.

I expect to take approximately 15 minutes in presenting 570.

Now Your Honors please, this matter numbered 570 is before you on appeal from a three-judge District Court in Rhode Island declaring one of the public laws of 1969 which is commonly referred to as the Salary Supplement Act on the grounds that if violates the First Amendment of the Constitution of the United States, by reason of the entanglement that is inherent in the Act.

The case comes before this Court with rather a substantial record, there is substantial documentary evidence, depositions and there was oral testimony below.

Charles F. Cottam:

I would like for just a moment to analyze the Act which is very brief.

Section I of the Act sets forth the legislative findings and in essence it sets forth much of the crisis, which you have heard testimony about this morning involving these other cases that have been before you.

Particularizing in Rhode Island, the non-public schools are facing a crisis at the elementary school level.

At this level, 45,000 or 25% of these children are educated in non-public schools.

The crisis arises by reason of the financial difficulties of the schools in their ability to offer a substantial or a competing salary for qualified teachers that are qualified and are teaching in the public schools of the state.

They pointed out that in 1960, this crisis was recognized by the state on behalf of the cities and towns in which the state of Rhode Island participates not rather heavily in the cost of the education of the public school students.

Section II of the Act pertains to definitions and under the Act, the non-public school is a non-profit school and it is one where the per student cost of education does not equal or exceed the cost per student cost of education for a public school student.

Now, a non-public school teacher is defined as a teacher in a non-public school and one who teaches only subjects which are required to be taught in the public school and one who teaches only subjects which are required to be taught in the public schools of the state.

Now those non-public school teachers who become eligible for what we call a salary supplement which is roughly 15% of their salary, must satisfy certain requirements that are set forth in the Act.

That is, number one the teacher must request the supplement. Number two—

Byron R. White:

That is the individual teacher.

Charles F. Cottam:

The individual teacher, Your Honor.

Now the teacher must also teach secular subjects to the same extent as those subjects are taught in the public schools of the state.

And that teacher must also use materials that is textbooks and the like which are used in the public schools of the state and in addition to this, the teacher must promise that he will not teach a course in religion so long as he is receiving the salary supplement.

Now, the regulations that are set forth or the power to make regulations that are given in Section V of the Act, make it very clear that the payment is to be made directly to the teacher and not the schools.

It’s a mandatory requirement to be put in the regulations.

Potter Stewart:

What check is made on the teacher’s representations?

Charles F. Cottam:

There’s no check, there is a statement signed, Your Honor.

Potter Stewart:

And just on the basis of the signed statement, if the signed statement contains the information would satisfy the provisions of the statute, then the (Voice Overlap)

Charles F. Cottam:

That’s all is required.

Just a promise of the teacher which is on a form developed by our Commission of Education.

Potter Stewart:

And what is the amount, you said 15% of what?

Charles F. Cottam:

It’s 15% of the salary that the teacher has contracted for and there’s a limitation, that salary then including the supplement must not exceed the average maximum pay to a teacher in a public school system of our state.

Potter Stewart:

For that teaching that grade and that subject?

Charles F. Cottam:

Yes, Your Honor.

Warren E. Burger:

Does your state have statute comparable to that of Section 1001 Federal statute on — presenting a false certificate to secure payment from the state?

Charles F. Cottam:

No, it does not Your Honor.

Warren E. Burger:

Would it be a an offense of any kind to present a false certificate under other statutes?

Charles F. Cottam:

As I recall, it was not a sworn statement.

It is a direct misrepresentation and because in the presence of evidence to that contrary, you would lose the supplement.

Warren E. Burger:

And it will be the only sanctions?

Charles F. Cottam:

Yes, Your Honor, unless the state itself could prove a damage claim for misrepresentation which under Rhode Island Law would mean you’d have to prove a preexisting intent.

Now, Your Honor, the complaint that was filed in this case alleges in substance that this Act, which I just highlighted to you, provides direct aid to a parochial school.

And I think, in addition to that, it alleges that the purpose and primary effect of the Act is to advance religion, the answers that were filed amount to a general denial.

As far as the evidence is concerned which I think — it should be of great interest to the court and was in the court below is the handbook of the school regulations issued by the Roman Catholic Diocese at Providence that referred to any opposition brief and the depositions in the oral testimony that was presented.

Now, the testimony itself is I think of a great importance because it highlights the difference that I think this Court has indicated in the past decisions between so called atmosphere and permeation.

The evidence clearly shows that these all parochial schools that are principally affected under this Rhode Island Act, that there are —

Potter Stewart:

May only a lay teacher be inept?

Charles F. Cottam:

No, there is no restriction Your Honor, we do have the deposition of one religious teacher who is on leave from her order who was in.

But its faith of God to believe that a religious would qualify under the Act because their life is dedicated to the propagation of religion and under this Act, you are immediately disqualified if you teach religion.

Potter Stewart:

This is a case where one instructor stopped the (Voice Overlap)

Charles F. Cottam:

Yes Your Honor, yes Your Honor.

Potter Stewart:

That’s when you’re making the application?

This is the case.

Charles F. Cottam:

Yes it is Your Honor.

Now, before I leave the act —

Harry A. Blackmun:

How many of the schools above the parochial schools?

Charles F. Cottam:

I think there are some 90 parochial elementary, Your Honor.

Harry A. Blackmun:

Well, How many of that that were beneficiaries under this Act?

Charles F. Cottam:

Well, there are some 29,000 or almost 30,000 elementary school children that are affected by this Act.

Warren E. Burger:

Out of how many?

Charles F. Cottam:

Out of approximately 45,000, roughly 66% that comes from you will notice in the legislative findings that refer to roughly to 45,000 as being educated in nonpublic schools.

But the testimony of the superintendent of schools for the diocese in Providence Father Moen indicated that there are roughly 29,340 with maybe a couple over.

Now Your Honor, as far as the testimony was concerned there’s just no question about the proximity usually of these schools to a church the presence of statutes and the presence or crucifixions.

But I do think what is of paramount importance is the absolute unrebutted unequivocal and un-contradicted testimony of every deponent and every witness that religious content was not injected into the teaching of a secular subject.

In other words —

Harry A. Blackmun:

(Inaudible)

Charles F. Cottam:

You’re referring now to a religious person, a nun?

Harry A. Blackmun:

Yes.

Charles F. Cottam:

Oh yes, you couldn’t qualify under this unless you gave up — that testimony as I indicated is just unrebutted and it’s unequivocal.

Byron R. White:

Now is the payment made to the teachers as her salary (Voice Overlap)

Charles F. Cottam:

No, Your Honor, it’s made twice a year, in February and in June, under the regulations they were issued pursuant —

Byron R. White:

Directly to the teacher?

Charles F. Cottam:

Directly, that is a must, the statute.

I think that Section 5 requires that the salary must be paid directly to the teacher.

Warren E. Burger:

I think we’ll suspend now for lunch.

Charles F. Cottam:

Mr. Chief Justice, may it please the Court.

I would like to correct an impression I may have left with this Court this morning Your Honor when you asked me the question was there a false document statute — I thought Your Honor was referring to the Act in question that is the Salary Supplement Act when I responded no, there is such a —

Warren E. Burger:

A general statute?

Charles F. Cottam:

Yes, there is Your Honor.

And there is also a larceny statute where a document is filed with false intent.

With the few minutes remaining Your Honor, I think I will not get in to an analysis of the decision of the court below but rather I would like to take a moment again to call your attention to the evidence that was submitted to the Court below and the findings.

And I would like to make the observation that we have no quarrel with the findings as made by the Court below.

The question, we have and the disagreement we have is what the Court’s analysis of the Schempp, Allen, Walz test and its presence and existence and the effect of Walz on Schempp Allen and this will be covered by Mr. Williams.

Going back into the evidence that was submitted by the court to the Court below.

The evidence as I indicated is overwhelming and uncontradicted, and un-rebutted that there is absolutely no sign of permeation in existence.

As far as the Act itself is concerned, the state feels that one of the great features of the Act is its voluntary provisions.

No school is required to tailor its curriculum to come within the provisions of this act.

No teacher is required to teach in a parochial school.

And no teacher who teaches in a parochial or non public school is required to come within the provisions of the Salary Supplement Act.

As far as this being a restraint on the individual teaching, my response to that is that it’s voluntary.

There is nothing in the Act which requires either the school or the teacher to conform to the Act.

In summation Your Honor, it is the position of the State that the evidence submitted in the court below indicated very clearly that this Act is designed to meet a crisis in the State of Rhode Island at the parochial school level.

It’s also designed to provide a quality education that the state feels is necessary.

The Court found and the evidence supports the finding, that the purpose of the Act is entirely secular.

The evidence introduced below indicates a total absence of permeation within the meaning of the Allen decision so that all of that remains to be done is to test the continuing existence and the applicability of this Court’s prior decisions to this statute.

Thank you very much Your Honor.

Potter Stewart:

May I ask one question, do you regard the District Court decision here as basically inconsistent with that in the Pennsylvania case?

Charles F. Cottam:

With what decision Your Honor?

Potter Stewart:

In the Pennsylvania case, the one that was argued just before this one.

Charles F. Cottam:

Well, I think, it’s entirely — no, it’s not entirely different.

I disagree with their finding on entanglement because there was no evidence presented in the Court below.

There is no record in the Pennsylvania case Your Honor, did this Court in Rhode Island, the three-judge Court sitting in Rhode Island went off on the ground that this statute engendered excessive entanglement that was referred to in the Walz decision, because they felt that there was an inhibition of teachers and that the continuing surveillance that would — the Act would require to determine what part of the schools’ budget is religious and what is secular was too extensive for an entanglement.

Potter Stewart:

You’re making the same crisis argument that Mr. Ball made in the other case.

Charles F. Cottam:

Yes Your Honor.

Potter Stewart:

And I infer from that because that these acts were enacted in crisis, that they are therefore constitutionally your argument?

Charles F. Cottam:

No, Your Honor, I don’t argue constitutionality based on crisis, but in one of the questions you asked Mr. ball this morning, I would like to respond.

The essence of the question was, if the monies were paid to the school, did not just supply the school with additional fund for other purpose.

My answer is these schools are closing Your Honor, there are no other funds for these purposes.

Potter Stewart:

Of course in your case, the replacement dollar argument I take it is not available to the other side because this is a supplement.

To this extent, your act is different from the Pennsylvania.

Charles F. Cottam:

Well, it’s not substantially different Your Honor.

The arguments presented to the court below was let the parishes pay and there was no showing that they couldn’t.

They was no showing that they could.

The fact of the matter is the schools are closing which I think speaks for itself.

Thank you very much.

Warren E. Burger:

Mr. Williams.

Edward Bennett Williams:

Mr. Chief Justice and may it please the Court.

I’d like to take just few a moments if I may and say a word about the statutory scheme that is under scrutiny here in this decision.

Rhode Island made the judgment some years ago as did the federal government that it was difficult to get quality teachers for the elementary school grades.

And so, it enacted a law granting a subsidy or a bonus to teachers in the elementary public schools of the State of Rhode Island.

It gave that bonus directly to the teacher.

Subsequently, in 1960, it escalated that bonus to 30% of the supplement, but it immersed it in other kids of aid that it provided to the cities and towns of the State of Rhode Island.

It picked up 30% of the cost of elementary school education at the public school level in Rhode Island.

When this statute was passed in 1969, what the state legislature was doing was simply, including within the penumbra of the general welfare statute applicable to elementary school teachers in the state of Rhode Island, those teachers who were in the nonpublic nonprofit schools.

Now there are 98 parochial schools in the state of Rhode Island.

There are about 1000 parochial school teachers, the record shows.

There are about 1076 teachers in non-parochial, nonpublic or independent private schools.

How many of those teachers are eligible and qualified and how many have been declared eligible and have qualified under this act, only 161.

— because the Act is so tailored as to exclude those independent schools whose per pupil expenditure exceeds that of the public schools of the State of Rhode Island because indeed, they don’t need that kind of aid.

Edward Bennett Williams:

Now, how many of the parochial school teachers are qualified for this kind of aid, 342 the record shows.

Why?

Because the balance of them are nuns and nuns don’t qualify under this because the statute requires that the teacher receive the minimum standard applicable to the public schools system before a teacher can qualify for the aid.

And the statutes of Rhode Island show us that $4000.00 is the minimum salary paid to a public school teacher in the State of Rhode Island.

And the record shows us that the nuns who teach in the parochial schools of the State of Rhode Island receive $1800.00 a year if they have a bachelors degree and $1,900.00 a year if they have a master’s degree.

So we come down to 161 teachers receiving a supplement of 15% of the salary that’s given to them.

What effect did this have?

In 1968, the parochial schools of the State of Rhode Island were able to offer, the record shows, $5,000.00 as a starting salary to the teachers.

While the public schools were offering $6,000.00.

By virtue of the salary supplement here it provided for, the parochial school could offer $6000.00 by raising it’s contribution from 5 to 5100 and the state would then contribute $900.00 directly to the teacher under some very sharply defined and circumscribed conditions.

Number one, that the teacher did not teach religion.

Number two, that the teacher was certified by the State of Rhode Island.

Number three, that the teacher used only those materials and textbooks used in the public schools for subjects being taught and required to be taught in the public schools at Rhode Island.

Number five, that the teacher received a minimum salary provided for in the public schools of Rhode Island.

And number six, that the salary plus the supplement not equal or exceed, not exceed, the maximum average for the public school counterpart teacher.

That’s what this Act did.

In other words, it provided to certain teachers under carefully circumscribed conditions, a possible parity of income for teaching the same subjects with the same materials, with the same certifications in nonpublic schools, substandard public schools because their per pupil expenditure was below the public school expenditure.

Now, if the court please, what did the lower court say with respect to this Act?

Because I submit to the court that statutory scheme here in the State of Rhode Island is no different from a situation where the state would offer $500.00 grant or an $800.00 grant to all the elementary school teachers across the board in nonprofit schools so long as they did not teach religion.

I don’t think that kind of statute would be subject successfully to constitutional attack under the test that has been laid down here.

That’s precisely what was done here.

What do the Lower Court say.

It purported to apply the purpose and primary effect test.

And what it did say about the purpose, it said the first part of this test determining the statute’s purpose presents little difficulty.

The Salary Supplement Act in our opinion was not intended to advance or interfere with religion.

The statute resides that its purpose is to provide quality education for all Rhode Island youth, those in public and nonpublic schools, the quality of education in the nonpublic schools are legitimate legislative concern.

We find nothing in the history and the structure of the Act which suggests that the legislative purpose was other than as declared.

It then goes on to say that it’s certainly fulfills a secular purpose for the statute to have been limited to teachers in schools who’s per-pupil expenditure does not equal or exceed the public expenditure because it that way, this aid is directed to teachers who are teaching in substandard economic schools which cannot afford to pay them on a parity for the same services with the public schools in the state.

Now what does it say about the purpose?

And this is where we submit the lower court (Inaudible).

Edward Bennett Williams:

It says this, it says, and this is at page 37 of the joint appendix.

“On the one hand, we find the statute will have the secular effect of aiding the quality of secular education in the State of Rhode Island, precisely what it was intended to do.

Precisely what the purpose of a legislature was, it finds that it did have that effect.

But, it goes on to say on the other hand, we think it equally clear that the Act gives significant aid to a religious enterprise.

At page 40, it repeats and it says, the second part of the Schempp test determining the statute’s primary effect presents a more difficult problem of definition and application.

Plaintiffs have argued that primary mean is essential or fundamental.

Defendants and interveners have taken a more literal position, claiming that primary means first in order of the importance.

The problem of definition is critical in this case because we have noted the Act has two significant effects.

On the one hand, it aids the quality of secular education.

On the other, it provides support to a religious enterprise.

This Court, since it began the evolution of the purpose and primary test has found in four instances that the mere fact that an effect of a statute may be of aid or benefit to religion does not constitute a barrier to its passing constitutional muster.

It said it in Everson.

It is said in the McGowan.

It said it in Allen.

And it said in Walz.

Furthermore, this Court has found that in focusing on the nature of the primary effect, you look at the functions subsidized, not the institution benefiting.

It is said this in Everson.

It’s said in McCollum.

It’s said it in Allen and it found both in Pierce against the Society of Sisters.

43 years ago and in Board of Education against Allen, three years ago that these schools do provide a secular function.

Now, what would be the effect, what would be the effect of following the lower court’s concept of the primary effect test?

It would be as follows, we would roll back, the law of Church and State 25 years, if we found that because a secular statute that had a secular set gave incidental aid to religion that it failed to pass constitutional muster then we must of necessity reverse Everson.

We must reverse McGowan.

We must reverse Allen.

And we must reverse Walz.

And if we consider the nature of the word significant, significant aid to a secular enterprise, then we better focus on how significant the aid is here.

The aid here, 161 teachers from 98 schools or one-and-a-half teachers per school, receiving $900.00 salary supplement pails into insignificance compared to the significance of the aid in Everson in 1947 when a whole school load of children were bussed to and from school.

Simple arithmetic will tell you that if you are paid ten cents a ride to take 300 little boys and girls to and from school on a 180 school days a years, twice a day, you’re talking about $12,000.00 or $13,000.00.

In Board of Education against Allen, we talked about giving textbooks or lending textbooks to the children of the New York Elementary Schools.

If they received their textbook in mathematics, if they received their textbook in science, if they received their textbook in a foreign language, then we are talking about a per-pupil expenditure or a per school expenditure that dwarfs the expenditure that is countenance in this particular statute.

Edward Bennett Williams:

So, I suggest that when the court strikes down the Rhode Island statute as failing to pass the primary test facet of the test fashioned by this Court, because it is giving significant aid to the schools, it is running counter to the whole train of decisions of this Court.

Now, if the court please —

Potter Stewart:

Did I understand you to say at the outside of your argument, Mr. Williams, that the Catholic Sisters, nuns would not be eligible for this?

Edward Bennett Williams:

They couldn’t be Mr. Justice because the record shows they make $1800.00 a year.

Obviously, if the school as the record shows couldn’t afford to pay an extra thousand dollars to get quality lay teachers, it couldn’t afford to escalate the nuns from $1800.00 to $4,000.00 a year, when there were seven or eight nuns teaching in these schools and one or two layman.

So that the nuns, practically, as the record shows, absolutely cannot qualify for this aid, the record does show if the court please, that one nun did and she qualified because her mother was dying, she had to leave the order, she had to go out and earn money to support her mother and live outside of the convent.

And she made application because she was teaching a holy secular subject.

But other than that, there is no qualification of religious under the statute, only 342 lay teachers qualified of whom only 161 came forward, because indeed, the teacher may not come forward and ask for the supplement unless the school qualifies by filing what is known as an NPS nonpublic school form 31, showing that its per-pupil expenditure is less than the per-pupil expenditure at the public school so —

Potter Stewart:

That its per pupil expenditure for all purposes, not just for teacher’s salaries?

Edward Bennett Williams:

For the secular education.

Potter Stewart:

For all the purpose?

Edward Bennett Williams:

Yes (Voice Overlap).

Byron R. White:

Do nuns take a vow of poverty?

Potter Stewart:

Because it depend upon the order?

Edward Bennett Williams:

It depends upon the order to which they belong.

I think some nuns do take the bow of poverty and I think some do not.

I think it’s entirely a question of the order to which they adhere.

Potter Stewart:

I was wondering what these teaching sisters did with the $1,800.00.

Edward Bennett Williams:

I guess, $1,800.00 probably as just walking around money at these days Mr. Justice [Laughter]

Potter Stewart:

Even on a a convent?

Edward Bennett Williams:

Well, I think that they are allowed to leave the convent but I don’t think they can go very far at $1,800.00 at these — [Laughter], but that’s the maximum that they’re paid under the Rhode Island school system.

And they get $1,900.00 if they have a master’s degree.

Warren E. Burger:

In all of these cases that you referred to or at least in all the recent ones, is it not correct that the court has expressed the views that this is matter of degree, the entanglement or the involvement or the potential for it?

Edward Bennett Williams:

I think that this was expressed and articulated clearly, perhaps for the first time in Walz against the Tax Commission.

And the question then becomes, because this is the caveat of Walz as I read it.

It does not abrogate the purpose and primary effect test at all.

It simply adds a caveat to the primary effect test, the purpose and primary effect test.

And it says if the program, if the statute creates an excessive entanglement between church and religion, then the statute must fail.

And then the court made a calculated choice between the exemption of the ad valorem tax for churches and the imposition of the ad valorem tax for churches and found that there was a lesser degree of involvement resulting from the exemption than from the imposition looking down the road and apparently shunning the prospect of foreclosing on a church.

I suggest, if the court please, that the same rationale holds here, because this Court in discussing this problem had this to say, it said “If the quality of teaching,” this is at page 37 of the record, “falls too low, then not only will catholic parents be reluctant to enroll their children, but the parochial school will run afoul of Rhode Island’s education laws.

Edward Bennett Williams:

50 years ago, this Court said that parents could satisfy the compulsory school attendance laws of this nation by sending their children to these schools.

The unspoken corollary of that of course was that the was that the state had the right to regulate the secular facet of these schools and indeed they have.

They’ve regulated the number of days to which children must go, they’ve picked the holidays, they’ve required certification of the teachers and they indeed have insisted that certain subjects be thought, Rhode Island has done the same.

Now I say, if the Court please, that if the state can compel then, it may assist.

And that’s what its doing here.

I say that the degree of involvement between the operation of these schools and the compulsory school attendance laws of Rhode Island and the country in fact, make the degree of involvement of paying $900.00 to a teacher di minimus.

I say also that if the legislative judgement has been made by the State of Rhode Island, that these schools cannot attract and hold qualified teacher for secular subjects, without those teachers being given a subsidy, then, the quality of secular education in those schools is going to fall.

And when it becomes marginal, the ugly confrontation which this Court eschewed in Walz against the Tax Commission becomes a reality, because then, there comes the kind of entanglement, the kind of excessive entanglement that this Court expressed its abhorrence for last year in Walz against the Tax Commission.

Warren E. Burger:

Would you, does this record show the extent of the surveillance of private schools in Rhode Island, to determine whether the hours in the curriculum and the teachers meet the standards prescribed by the state?

How is that done?

Edward Bennett Williams:

That statutes of Rhode Island cover this, Mr. Chief Justice.

There is a statute called compulsory attendance.

It is in Title 16, Chapter 19 of the Rhode Island general statutes, and this tells what the State of Rhode Island insists upon from all nonprofit, nonpublic schools if they are to meet the standards —

How much surveillance is involved in satisfying a — is there an inspection to see whether the parochial schools to keep (Voice Overlap)

Edward Bennett Williams:

I suspect Mr. Justice that there is no surveillance on that subject.

I suspect there is none, but the record is silent on it.

I don’t know of surveillance on that.

And I suggest to the court that when one of these 161 teachers signs a statement applying for supplement —

No, I’m not thinking about that.

You’ve told us that parochial schools are already subject to a number of minimum standards.

Edward Bennett Williams:

Yes sir.

They have nothing to do with this subsidy statutes?

Edward Bennett Williams:

That’s correct.

And this is to in all 50 States and now my question was, is there a degree of supervision of compliance for those standards on the part of any education (Voice Overlap)

Edward Bennett Williams:

There is nothing in this record Mr. Justice which shows a regular inspection.

I am quite sure that if there was a charge that certain subject were not being thought as demanded by the statutory scheme of the State of Rhode Island or that non-qualified, non-certified teachers were purporting to teach subjects that were required to be thought, that there would be appropriate action taken by Rhode Islands’ State Board of Education.

Well, are there are accreditation procedures for them?

Edward Bennett Williams:

For the schools?

Yes.

Edward Bennett Williams:

Yes sir.

Edward Bennett Williams:

That is provided for in the section to which I referred to Chief Justice, Chapter 16 Title 19, that they must be approved by the Board of Education of the township or the city or —

So in that extent, then there is some provision?

Edward Bennett Williams:

To that extent there is of all nonpublic schools.

And I gather your point is that they can go that far without offending the establishment part and surely the contribution by way of supplement to a teacher salary isn’t the excess?

Edward Bennett Williams:

That’s another way of expressing my thought, Mr. Juctice.

I say that the degree of supervision required by the Salary Supplement Act is de minimus compared to the supervision that is authorized and required by the statute to make sure that these schools fulfill the requirements of the compulsory school attendance laws of the state of the State of Rhode Island.

And indeed, they have been found these schools to fulfill less compulsory attendance laws and have provided a secular service to the state with the approval of this Court and without challenge for some 50 years since Pierce against Society of Sisters.

Potter Stewart:

Mr. Williams, if this time goes by, assuming this law is upheld and a financial pinch gets greater, the supplement is increased and finally reaches the point where the supplement is greater than the basic salary, is your case any different?

Edward Bennett Williams:

I think, Mr. Justice, that the aid would be greater.

I don’t think the principles would be different so long as the function being subsidized is secularly segregable.

I think that’s why this Court sits to test that kind of situation in the event that it arises.

I think it’s quite unlikely in the State of Rhode Island that the supplement that is granted to the nonpublic, nonprofit schools will exceed that which is given to the public schools, namely 30% under the existing statute.

I would like to reserve whatever time I have remaining for rebuttal.

Warren E. Burger:

Very well Mr. Williams.

Mr. Pfeffer.

L. Pfeffer:

Mr. Chief Justice and may it please the Court.

I pose in the time which I reserving for myself to discuss what i believed to be the legal principles applicable to this case and with the court permission, I should like to extend my colleague Mr. Stanzler, 15 minutes to apply these principles to the specific facts of this case as disclosed by the record of the trial.

This case, unlike Lemon and unlike Allen does present a record on trial with documentary and live witnesses and I believe that this is a case upon which the court can get at least a realistic glimpse as to what actually is the effect of these statutes because it’s upon the effect of the statutes that the court tells that is unconstitutional.

This was a unanimous decision of the court below.

Two of the three Justices found are unconstitutional on both because its effect and because it involved entanglement, the third judge fount it unconstitutional only because of entanglement, but the court below, majority holds it unconstitutional on both grounds.

Warren E. Burger:

So like Mr. Pfeffer, that the if it can be called surveillance, the supervision or the overseeing which every state exercises over all of the schools in the state to see that they are meeting the minimum standards, it’s always a factor that has been hovering over all private schools, isn’t that too?

L. Pfeffer:

It is indeed.

Warren E. Burger:

Do you think that the surveillance necessary to check the compliance of the parochial school under the Rhode Islands statute is a greater degree of involvement in determining whether the teachers are properly accredited and all that sort of thing?

L. Pfeffer:

I certainly do.

Moreover, it transgresses.

It’s greater in degree and in quantity and it’s critically unconstitutionally different in quality.

Every institution is subject to a certain degree of overseeing by the state for the protection of the people.

A church which does nothing but pray, have people pray, and participate in religious worship is inspected by the fire department, by the sanitation department and subject to tremendous surveillance that there may not be too many people there, that degree of surveillance, that degree of overseeing, cannot be deemed a justification for financing that institution.

This is a necessary police power of a state.

But when the state goes in, and does not look to see if the ceilings are safe, or does not even look to see even goes beyond that, to look to see the attendance record, but when that state goes in and pierce over the eyes, over the shoulders of a teacher to see whether that teacher is permeating or bringing in religion into her interpretation, let us of the reformation, the present reformation, or of the creation of the Earth, when or of anything which has theological application.

L. Pfeffer:

If in a religious core, when the state comes in and says we are going to pass judgments as to whether this is or is not religious, then this is a very type of censorship which this court has expressed its opposition to time and time again.

From Watson against Jones in 1870, to Cantwell against Connecticut when the court said we will not allow a state official to pass or to censor, what is and what is not religious.

It was in Poulos against New Hampshire, in case after case for a state official.

This indeed — this was one of the statements made by Madison in his opposition to the Virginia Bill for religious freedom that it empowers the state official to determine what is and what is not religious.

Now, this is, to us a critical difference between everything which is gone hereto for and never before, as far as I know has any courts, State or Federal, authorized a state official to pass judgments on whether certain teaching is religious or not.

I want to speak —

Byron R. White:

What about the public school laws that say that religion cannot be taught in the public schools?

L. Pfeffer:

Mr. Justice White, the answer to that, the one short answer to that is, that the First Amendment does not forbid a state to police its own schools.

These are state schools that are public schools and nothing in the First Amendment forbids a state to police its own schools, and it wasn’t —

Byron R. White:

But what about the teacher though, says you’re transgressing the First Amendment, my First Amendments right and you’re purporting to say that I’m teaching religion and you’re supposed to keep your nose on that.

L. Pfeffer:

That teacher is a public employee and must abide by the constitution of the United States which says a public employee in the schools may not teach religion, may not indoctrinate religion.

This is public employee.

Byron R. White:

So you’re saying that it’s inherent in the First Amendment that the state must in all sorts of context decide what religion is?

L. Pfeffer:

It must only to the extent of not allowing public employees to do it.

Byron R. White:

Well, anyway the state does it all the time. I mean, decides what religion is.

L. Pfeffer:

It decides what religion is to the extent only of forbidding transgression of religion into the public school.

Forbidding transgression of the constitution.

It does not, in the case I’m quoting does not allow the state to go in and censor what’s taught in a private school because in that private school, there is religion.

This isn’t easy essence of religious limit.

Warren E. Burger:

What does a court do when it’s called upon in a case like this or like the others when it makes the judgement that the school is — or the activity or the facility sectarian rather than secular?

Does it not make a comparable decision?

L. Pfeffer:

It makes a comparable decision only in the sense that it determines whether that teacher in a public school is fulfilling the secular program of the school.

The example, the best example I think is Everson.

The best example is Everson where the court said you cannot forbid the teaching of evolution in a publicly-financed school.

Now, the court there made a determination that the teaching of evolution is a secular subject.

But the Court did not in any case I know of, does not say that it’s permissible that this doesn’t involve the most gross entanglement for state officials to go into a religious core, created for the purpose of propagating religion, and saying, “We can really check and see whether during the hours of nine to three or two to three, this particular teacher is teaching religion.”

This is the most extreme form of entanglement.

This situation means that the teacher in the public school, in the parochial school is a part employee of the parochial school system, part of employee of the state.

The church selects the teacher, the church appoints, the church pays for it.

The teacher is subjected to discipline of the church.

L. Pfeffer:

The teacher is – and if it’s a member of religious order and nothing of the Act, nothing of the acts forbids members of religious orders.

As a matter of fact, there is a member of religious order who is a teacher.

Nothing in the Act forbids members of the religious order, if the religious order decides to, which it has every right, constitutional right to increase their salary from $1800.00 to $4800.00, which they can do tomorrow.

Nothing in the statute, nothing in the constitution forbids a member of religious order, who takes an oath of obedience, and then oath of poverty to qualify under the Act.

This makes the state and the church partners, and ever since President Taft was in common channel with Philippines, after we took it off, he required all public control of the parochial schools there to be withdrawn, because he said that church and the state may not be partners under our system of government.

All I want to say a moment, (Inaudible) and about the fact that in this case, although I don’t know whether my opponents are resting on this as a critical distinction.

The payment is made in this case to the teacher, it doesn’t go through, under the statute, through the treasury of the parochial schools.

I submit that that is hardly a critical distinction.

The legislative purpose of the Act, the whole discussion of the Act, the fact that’s predicated upon a crisis not of teachers, but of the parochial school is quite clear that this is a device to aid and to finance the operations of the parochial schools.

Indeed, the very fact that in order for a school to qualify, the teachers there must receive a certain minimum amount.

This is the first time, I’ve come across a situation, where a statute is enacted to benefit those who needed least and to deprive those who needed most of the off of that.

Indeed, if this purpose of this stature was to aid and help the teacher, the answer would be to lower the teachers’ salary, just as enough and everything else.

The lower the teacher’s salary, the more aid to be gotten.

So, the teacher could have a living salary, here is just the opposite.

If the teacher doesn’t get a certain amount, the minimum, the teacher gets not from the state, why?

Because the purpose of the statue is to help the school finance its operations.

This was agreed to and testified here that the superintendent of schools, and Catholic diocese there, if the state doesn’t them the money, we’ll go have to pay it, it’s in the record, it’s in my brief.

If come out (Inaudible) the parish, the Court said, the superintendent said, “If this statute is unconstitutional, and there’s two questions by the Trial Court, if this act is unconstitutional, that money would have to come from the parish, they’ll be having difficulty raising.

But no question, this is a form of subsidizing the church and helping it meet the crisis.

Warren E. Burger:

I take it that Rhode Island does not tax but he ad valorem real estate tax, the buildings of the parochial schools, is that correct?

L. Pfeffer:

I would assume so, there’s nothing in the record to that affect, but I think that can be assumed.

Warren E. Burger:

Do not most of your arguments or many of your arguments have the same force, with respect to that exemption?

L. Pfeffer:

No sir.

(Voice Overlap), Your Honor pointed out in the—

Warren E. Burger:

I was speaking of your aid argument in particular, at large aid isn’t it?

L. Pfeffer:

I’m not basing my case on aid, I’m basing my case on subsidy, on financing, not aids.

Aid can be many things, I’m basing my case on the proposition that this is financing the operations of a parochial school.

It is a subsidy, whatever its disguised, the reality is that this is a subsidy, just as much as in Lemon, the device used to subsidize is the purchase of services contract, independent contractor concept, the purchase of service.

But nobody is misled by that.

Everybody knows that the declaration of legislative purpose says these schools are facing the financial crisis and in this case too.

L. Pfeffer:

These schools are facing a financial crisis, and we’ve got to help them meet their budget, and we’ll do it in this way or in that way.

But, it would be make a mockery of (Inaudible) of the First Amendment, if calling this thing a purchase of service of contract or calling this thing as salary supplement.

Can’t be used to blind the eye to what actually is state subsidization of parochial schools and nothing but that.

Thurgood Marshall:

Mr. Pfeffer, can’t you rolls out as the law giving all schools ground and equipment to setup playgrounds of a 100,000 each.

L. Pfeffer:

And it’s used to be use for ground purposes of playground, and—

Thurgood Marshall:

The whole playground and paid for its up keeping, everything.

L. Pfeffer:

As part of the parochial school.

Thurgood Marshall:

No, no (Voice Overlap).

L. Pfeffer:

Mr. Justice Marshall, the reason I am unable to answer the question — (Voice Overlap).

Thurgood Marshall:

They all said, did enacted that schools are in so bad shape, and we’re going to give recreational center and a playground for every school in Rhode Island with more than 25 children.

L. Pfeffer:

Of all including (Voice Overlap), your respect Your Honor.

My answer was — I would deem that on constitution.

Thurgood Marshall:

Why?

L. Pfeffer:

Because the purpose of a parochial school, and the record shows is not to provide children with playgrounds.

The purpose of a parochial school is to provide children with a religious education together with the secular education, not independent of it.

Now, the record–

Thurgood Marshall:

Is there anything in the Rhode Island law that says that a public school can have recreation facilities?

L. Pfeffer:

That a public school cannot have?

Thurgood Marshall:

Yes.

L. Pfeffer:

Of course it doesn’t have such kind of —

Thurgood Marshall:

That’s right.

So it is treated by the liking for playground.

L. Pfeffer:

Except, Mr. Justice Marshall—

Thurgood Marshall:

Well, let’s move from playground across the street.

L. Pfeffer:

Well, my answer to that is, if the playground in an –(Voice Overlap)

Thurgood Marshall:

It’s called the same (Inaudible) Catholic school, public playground, formed by, Rhode Island and its plantations.

L. Pfeffer:

Well, I would say that’s what I gave yesterday in your absence in the total case.

One of the critical factors would be is, would a non-Catholic child be barred from entering that playground?

If a non-Catholic child would be barred from entering that playground, I would say that would be unconstitutional.

Thurgood Marshall:

As signed underneath, we take everybody, including those who never heard that there was such a word as religion.

L. Pfeffer:

Into that playground, there don’t have to be a student in school, then I would say that would be unconstitutional.

Thurgood Marshall:

Well, it’s to saying —

L. Pfeffer:

It’s a name of – wrote by any other name.

Thurgood Marshall:

Elementary school —

L. Pfeffer:

I don’t care what– (Voice Overlap) you called a playground, a school is isn’t, it’s a playground.

Thurgood Marshall:

It’s a playground, well, if you move it next to the building, you said I couldn’t do it.

L. Pfeffer:

No, I didn’t say that Mr. Justice Marshall, I said you can’t do it if you’re limit it to only those who were students in that school, and you limit those students that could only get those (Inaudible), and you require those students to take religious teaching, as part of it.

Then, you say if that —

Thurgood Marshall:

Suppose it’s restricted to children in that school, and that school accepts every child from the most en route Christian to the child that never heard of what religion was –.

L. Pfeffer:

And does not require that child to participate in any religious teaching or any religious practicing.

I would say this would not be unconstitutional.

Thurgood Marshall:

Why not?

L. Pfeffer:

Well, that’s not (Voice Overlap).

Because it is not the teaching or practice of religion, the state does not finance the teaching or practice of religion.

The state is providing a park for every member of the community (Voice Overlap)

Thurgood Marshall:

Everybody in the school, this is a part of the school, part of the school’s recreational facilities, under clause 83 6b.

L. Pfeffer:

And the school is one in which there is — religion is not required from the children, which of all faith and of no faith, and they’re not subjected to religious propagation, religious practices, and the mere fact, that I said yesterday, the mere fact that the school is church-related does not disqualify that.

(Inaudible).

L. Pfeffer:

If that was so, that was Catholic (Inaudible) towards constitutionality, yes indeed, because then the purpose of the statute is to promote the purpose of the school, as the court below said, and I think very astutely, this is a religious enterprise, it is simply unrealistic, and goes beyond everything, which we know of education to divide a school, which as this Court said in Walz, so recently, whose dominant politics is to control the complete education of the children, religious, and secondly complete education, children for their formative years.

It is simply beyond the realm of reality, to say you can divide that child up, and say — in this playground, he’s not subject to the religious influences of the school.

He’s not there for the purpose of taking the religious upbringing.

Thurgood Marshall:

Mr. Pfeffer, you have some inventory with this athletic program, would it interest you to know that renewing the school in the past two years had built a $6 million gymnasium, and a $3 million library?

L. Pfeffer:

I’m sorry–

Thurgood Marshall:

$6 million for gymnastics, and $3 million for books.

Some schools consider it a very important part of the education.

L. Pfeffer:

Yes.

Thurgood Marshall:

Now, if that is, so let me build my recreation center, and have building machine shop, next to it.

L. Pfeffer:

Well, I think the answer is it was given — the answer was given, and I would say this, if the machine shop and the recreation center is an integral part of that institution, that educational institution.

Thurgood Marshall:

Well, in my case, the machine shop and the recreation are on the same page in the catalog, is it equal, whatever you want to get.

L. Pfeffer:

I will come back Mr. Justice Marshall, to what I’ve just said.

L. Pfeffer:

I want to know if a child is in anyway required to participate in religious instruction or religious practice, or in anyway, his religion is relevant to his enjoyment of that facility.

If that is so, and in this case, the record shows specifically it is so.

Then, that is not constitutional, this is it.

As a matter of fact, the Court said in Everson, you cannot deprive a person of a public welfare benefit, because of his religion.

And if a child cannot enjoy a park, because it’s not of right religion or if the child can’t enjoy the park or the gymnasium, unless he partakes religious teaching, it’s seems to me that’s a violation of the constitution.

Now, on the purpose, one word about the purpose, I’ve said in Tilton, that under the principle of coordinate branches of government, this Court may not, perhaps examine it beyond the stated purpose of the legislature.

I do not think that applies to state statutes.

I believe this Court has said in Atchison, it said Reitman against Mulkey, that in fulfilling its constitutional obligation, the Court must examine to the perpetual realities of the situation, and may not be barred by a statement of the purpose.

The actual realities of this situation is that parochial schools are in economic crisis.

We have to help them, we have to help them, how?

By financing them on part.

This I submit is the purpose of this statute.

And if, as this case shows, a parochial school system is established and created to maintain the religion of its adherence, then I say that a statue, whose purpose is to relieve that church of its financial responsibility, by taking part, then that’s the purpose that statute, is to advance religion.

I would like to conclude and leave the balance to my associate, Mr. Stanzler.

But I find it necessary to point out the tremendous significance of these two cases before this Court, as to the future of a public educational system in this country.

The public school system, to me one of the most important, it’s one of the most important contribution, which our democracy has made to civilization.

It is the only situation, the only institution, which has an open door policy by law, which no child can be denied entrance, because of child’s color, the child’s wealth or lack of wealth, the child’s religion or lack of religion, it is universal.

Because it is universal, because every child can come in without questions, the door will never close on a child entering a public school, because of that, that school deserves and merits financial support and maintenance, by taxes levied against all of the community.

But once an institution can close its doors, and say before you come in, I want to know your face, I want to know your color, I want to know whether you have a correct baptismal certificate, otherwise you don’t come in.

I say the constitution of the United States does not allow such an institution to be supported by tax raise, and funds.

Potter Stewart:

What does the record in this case show as to the admission policies of these schools?

L. Pfeffer:

Well, the record shows, it’s on the record, it shows that — I will read it to you specifically, that preference is be given to– and that’s a factor that all the children, at least 95% of more —

Potter Stewart:

What page is that?

L. Pfeffer:

Of the admission procedure, as the record shows that in selecting students, preference must be given, should be given to those who participate — who attend mass.

Warren E. Burger:

We can’t identify the page at first.

L. Pfeffer:

You have the page of that — yes, it’s page 223 of the joint appendix.

I will read it.

Warren E. Burger:

220?

L. Pfeffer:

223.

Warren E. Burger:

223.

L. Pfeffer:

Of the joint appendix, here’s what the record shows.

This is the handbook and the rule stated, “Although wealth should not serve as a criteria for accepting a pupil into a catholic school, all other things being equal, it would seem fair to give preference to a child, whose parents support the parish.

Regular use of that budget, rather than size of the contribution would appear equitable.”

In the case, where the parents regularly attend mass, this is at the very least, preferential treatment based upon religion, upon attendance and that’s from the record.

Thank you.

Hugo L. Black:

That’s the finding?

L. Pfeffer:

I beg you pardon.

Hugo L. Black:

Is that a part of the Court’s findings?

L. Pfeffer:

This is not disputed.

It was conceded at the trial.

It was conceded at the trial that this is in effect that there are certain things in the handbook, which were challenged, but those things which were not challenged, were conceded by the superintendent of schools of the dioceses of providence, that it is in effect this has been conceded to be in effect uncontraverted.

Potter Stewart:

This has to do with situation, when more than 40 apply for the first grade.

L. Pfeffer:

I beg your pardon, yes.

Potter Stewart:

And it’s in the form of suggestions, I guess these are suggestions from the archdiocese or–?

L. Pfeffer:

Yes indeed.

Potter Stewart:

And that’s the – they use the Metropolitan reading readiness test or similar test for pre-registration sometime in March, April or May?

L. Pfeffer:

Yes.

Potter Stewart:

And then, if there are still more applicants, then can be accepted, take the 40 oldest children?

L. Pfeffer:

Yes.

Potter Stewart:

This is this arbitrary, but it has one advantage, the older children are not as likely to fail in the first grade, as the younger ones.

You’re reading from that whole list, and that comes from the archdiocese, does it?

L. Pfeffer:

All comes from the archdiocese, yes.

Now, those are criteria, which are perfectly constitutional in the private institution.

Those are criteria — but criteria and attendance of facts of the parent’s attandance of mass, as a factor in determining admissible or not admissible, is certainly not consistent with the First Amendments of the United States Constitution.

Warren E. Burger:

Thank you Mr. Pfeffer.

Mr. Stanzler.

Milton Stanzler:

Mr. Chief Justice and may it please the Court.

My role here is to relate the record to laws set forth by Mr. Pfeffer, and to suggest to the Court that the record in the case amply supports the findings of fact made by other trial court below.

First, I would like to explain how the legislature is implemented.

The Deputy Commissioner of Education testified and related that he was appointed by the Commissioner of Education to draw up rules and regulations and then subsequently after drawing of the rules and regulations, they were considered at a public hearing, and they were adapted, and the material, the rules and regulations together with the applications forms for the teachers, and together with the NPS number 31 that Mr. Williams referred to, was sent to the non-public schools.

Milton Stanzler:

Thereafter, the non-public schools submitted the accounting forms or the expenditure sheets, and the data contained therein, together with the applications to the Deputy Commissioner of Education.

And he then, reviewed the forms, some 250 teachers, and approved all of them, all of them coming from the Roman Catholic schools.

I think in answer to some of the questions that might be pertinent, just a moment to take a look at the role that the Commissioner of Education must play here.

He must set forth in page 3 of rules and regulations verify Department of Education, upon receipt of an application for a salary supplement, shall determine the applicant’s eligibility by verifying whether or not the applicant complies with the regulations.

The expenditure form, which is attached to it, sets forth a summary of all the current expenditures of the school.

This is not just the expenditures for secular education, that is set forth.

Warren E. Burger:

I take it, you’re making that point, on the entanglement aspect.

Well, what if the new school having nothing to do with any church, Catholic, Jewish or Lutheran, moves into a community to open up elementary school for children and wants to qualify, is there any difference in what they would have to do to get accreditation?

Milton Stanzler:

No Your Honor, they would have to submit the form of expenditures, same form, and provided a teacher applies as the Commissioner of Education testified.

If the expenditures exceed the per pupil expenditure for the grade in the public schools, then he will go into these schools, and conduct an audit.

And as he testify, would may give determination, as between the sectarian expenditures and the secular expenditures.

And the same thing would apply to a new school, if a new school wanted to apply for the act, and have its teachers apply, it would have to do the same thing.

Warren E. Burger:

I suppose we can traditionally notice the reality that some state boards of education have disqualified some private schools, because of their failure to maintain minimum standards, even though they had no religious connection at all, is that (Voice Overlap) of a judicial notice?

Milton Stanzler:

I think that could probably could be done, Your Honor.

And I think of the circumstance of this case, there was once school that didn’t qualify, because its expenditures per pupil exceeded the expenditures per pupil in public school.

Warren E. Burger:

Doesn’t this mean that state power exercises a great deal of authority and surveillance over all education, through the required years of compulsory education?

Milton Stanzler:

Yes Your Honor, I think that there’s a difference however, with respect with my brother pointed out, my brother Pfeffer pointed out, with respect to reporting the numbers of students who were attending in the school.

There is a difference as to determining between the — making a determination as to the sectarian expenditures and the secular expenditures, as required under this Act, as the Commissioner of Education says, he’s going to perform.

Warren E. Burger:

Well, I’m speaking now, the abstract of a private school, private elementary school, and it develops that instead of teaching History, which maybe required, of course, presumably is, teaching religion, even though it’s not a religious connected or religious-related school, wouldn’t the school authorities say you must teach History or we will cancel your accredited standing, which means they go out of business.

Milton Stanzler:

Well, I wouldn’t — I think that in the light of the cases, in particular the Pierce versus Society of Sisters that the private school can teach certain subjects, if they do not teach as in Rhode Island as a requirement they teach History, if you do not teach History, then I would believe that they would lose their accreditation, and the Department of Education would have a right to say it then, that you must teach History according to that state law.

Warren E. Burger:

This would have nothing to do whether they’re church-related or whether they were run by agnostics.

Milton Stanzler:

That is correct, Your Honor.

That’s a minimum standards that they’d have to meet.

But that does not have to — it seems to me in any rate, does not seem to interfere with the religious aspects of the school itself, and with respect to making an investigation as now the Commissioner of Education has put in the role of making an investigation to determine, what is the sectarian or what is not sectarian, and this determination as to whether or not teachers who apply under this Act must qualify.

To move on Your Honor, I would like to point out the nature of the school itself, the totality of the religious atmosphere that’s involved in the school, this is amply supported by the record and I would suspect it’s almost conceded by my brothers, but to point out the guideline, which is Exhibit 14, as the document that has been utilized in evidence here.

This handbook is in effect, it has been modified in certain forms, and it is used and is binding upon the administration, the operation of the schools, and each principle, and each of the school maintains his handbook.

In order to complete the — to indicate to the Court the religious atmosphere that is maintained, though not in the record though, part of the evidence that as an Exhibit 14a, which supportedly where some modifications of the guidelines of the school system, and this was related by Judge Coffin in his decision below.

It was letter dated January 20, 1970, which the Court considered a letter from Father Mullin to the elementary school principals, where he pointed out under the question of whether or not, in light of the problems that there were maintained by the schools, with respect of the proportion of lay teachers to religious teachers that Father offered his own opinion.

And this is in his letter to the elementary school principals, that reducing this proportion should not be done, (Inaudible) for lay teachers should be maintained at all times.

The reasons are: 1) the obvious financial difficulty, and 2) the delusion of the catholic atmosphere of that school, that might result, then of course, the financial considerations.

Milton Stanzler:

The schools all have religious and lay teachers, fathers and priest do not teach, but occasionally will teach religion.

About 98 elementary schools, and the dioceses, one school has all lay teachers, and two or three schools have religious teachers.

90-95% of a non-public elementary schools students are enrolled in the Roman Catholic parochial schools.

The diocese averages two religious teachers to one lay teacher, religious teachers are sisters and there are approximately 29,000 students in the elementary schools from grade one to eight.

Substantially, all of the children in the schools are of the Roman Catholic faith.

A great majority of the 98 schools are all parish schools, which means they are owned and operated by the parish.

If the school is not own by a single parish, three are operated by two or three parishes together.

There are six schools which are private, but these are operated by a religious community of sisters, who own and operate the schools, and there is one such which is operated by the diocese.

A majority the principals are pointed by the Mother Provincial of the order sisters which staff the school.

The last two years, Father Mullin has appointed the principal of one of the schools in which there are thirteen.

And two cases, the pastor appoints the principal and then one school, which is autonomous, the principal is appointed by the Board of Director of the school.

There are two school which have lay principals.

The religious teachers are appointed by the mother provincial.

The recruiting process of the lay teachers starts in the superintendent’s office, and one of his assistants interviews all of the applicants.

They fill out an application, they are interviewed by one of the superintendent’s assistants, and she refers them to the pastor who signs the contract with them.

It might be pointed out that with respect to the contract, the evidence was clear that as Mr. Pfeffer pointed out, that if a contractual obligation, let’s say it was $6,000.00, if the statute was held to unconstitutional, the parish would be obligated to pay the total of the $6,000.00.

Finally, the principal for a particular school will interview the lay teacher after they are refered to the superintendent’s office, and then the pastor and the lay teacher will sign a contract, upon agreement.

The great majority of lay teachers in the Roman Catholic schools are Roman Catholics, approximately 10-15% are not Roman Catholics.

The schools have the usual embellishments of the Roman Catholic school and is testified as brought out when one visits such a school, he knows he is visiting a Roman Catholic parochial school.

Each class, day starts with a prayer for each of the students.

They are usually — instead at the beginning of the day, and sometimes at the end of day.

There are lay teachers or religious teachers in the home rooms, where these prayers are said, beginning if prayers of a day are supervised, are conducted either by lay teachers or religious teachers, 150 minutes a week of school time is devoted to religious classes.

This curriculum is setup in the handbook, on a weekly time allotment that comes out each year in September.

The religious classes will deal with the study of the various tenets of the Roman Catholic education.

Since, the passage of the Act, teachers who have applied for the supplement do not teach religious courses, but prior the lay teacher could if they wanted to, and if they felt competent.

It would be up to the individual teacher, to determine if she wants to begin each class with a prayer.

One reason for the Salary Supplement Act or I might point out that there are sometimes visiting missionaries, at least once year, and of course, the handbook provides that the vocations programs are conducted once a year.

There was testimony given by one nun, who did apply and did qualify under the Act, and she was asked what her view was of the role of teachers in parochial school.

She said, on page 223 of the joint appendix, “According to the religious thinking of a Catholic today, it is that young adults going into the community, they should hold a Catholic attitude toward different things they meet with and yet this is not totally Catholic, it is a Christian attitude.

As teachers, we by our example, particularly and our handling of the children try to inculcate in them the same Christian attitude.

Milton Stanzler:

As with religious, we are toned to discipline, and we try to exert discipline with the children, so they will be open to studying and to proper attitude toward their word.”

The religious atmosphere that permeates at the school is that of the teacher themselves, though she does not think that this is an overall religious atmosphere.

One of the principal functions of the parochial school she said, is to have available former religious training, because otherwise the children would not be reached, except in the catechetical classes after school and if you do not get them at an early age, you would do, if you’ll handled them right from the first grade.

Father Geebung (ph) one of the pastors of the parish schools testified, and he testified that pastor entered to the contracts with the teachers under the salary aid, it is understood that it would mean the salary is paid by the parish, would be that much less, some of the burden will be taken off the parish’s shoulders.

It is most fair to say that the financial responsibilities of the parish would be lessened, if the supplement payment were made.

The money saved would be used to better school, but it could be spent for parish purposes.

The Father also testified that he would not hire divorced school teachers, nor would hire ex-communicated Catholics from teaching those schools.

I might go on to point out that there are numerous references in the handbook’s Exhibit 14, which relate clearly the religious atmosphere of the school, which relate and show, and supplement and support the findings of the court below.

And I might in conclusion say, that the court below, the record that it found in making new findings, that it did, is amply supported by the record.

I respectfully suggest and urge the court to affirm the findings of the court below, thank you.

Warren E. Burger:

Thank you Mr. Stanzler.

Mr. Williams you have about five minutes left.

Edward Bennett Williams:

Mr. Chief Justice and may it please the Court.

I’d like to take these few minutes to just correct two impressions that have been left with the Court, in the argument of counsel.

Mr. Pfeffer suggested to the Court that the superintendent of schools, for the parochial schools of Rhode Islands, testified that if the statute were held unconstitutional, then the money would just continue to come from the parish.

The record shows first of all, that what the superintendent testified to, was that the contracts with his teaches were signed after the statutes were passed.

And that because the individual schools were bound by those contracts, they would have to pay for that year, the amount of money called for in the contract, because it had been executed, but it did not suggest, he did not suggest, he did not say that thereafter, that the schools would be able to continue this higher stipend.

Now, an issue has been injected in the last moments of the arguments here.

The suggestion has been made that there are some kind of exclusion policy in these schools, either racial or religious.

And I receive the (Inaudible) this morning from Mr. Pfeffer, when he said that I had misstated Title 6 of the 1964 Civil Rights Act.

Well, Title 6 of the 1964 Civil Rights Act is specifically incorporated in the Rhode Island Salary Supplement Statute.

It’s precisely stated such regulations shall ensure that any non-public school, as that term is defined earlier in this chapter, which employs teachers who receive salary supplements, as provided for in this chapter shall comply with the provisions contained in Title 6 of the Civil Rights Act of 1964.

And the suggestion was made this morning that there was exemption for religion.

Well, there is an exemption for religion.

There’s a very narrow circumscribed exemption for religious in Title 42 2008, Section 1, in hiring policies of institutions, where the hiring is by a religious institution, for a religious activity, it is so that a religious school does not have to hire somebody of a different religion to teach religion, which would have no acquisition to this case, because religion teachers are excluded from the benefits of the Act, in any event.

There was no suggestion at any time, until the veining hours of the argument here in this Court that there was ever any exclusion on the basis of race from any of these schools, never at any time in the lower court, and indeed the record is diametrically to the contrary, and I invite the Court to read it.

And I suggest likewise, there has been no evidence produced in this record, in the lower court, that anyone is excluded from these school by virtue of religion for indeed the record once again is diametrically opposite to the suggestion that was made in the closing moments of counsel’s argument.

Potter Stewart:

How about the page 223 of the appendix, to which Mr. Pfeffer referred?

Edward Bennett Williams:

Page 223 of the appendix, if the Court please—

Potter Stewart:

What that is, is part of exhibit 4 (d) (Voice Overlap).

Edward Bennett Williams:

Counsel said that, that was a stipulation between the parties, nothing could be farther from the fact, I suggest.

If you read the record here, from pages 120 to 127, you will see the long colloquy that went on, between counsel with respect to the admission of this handbook in evidence.

And it was pointed out that many sections of the handbook were superseded or never operative and that were never put into practice.

And the counsel met and stipulated with respect to certain portions of the handbook and that whole dialog is contained between 120 and 127.

And I suggest to the Court that there never was an issue in this case, there never was an issue to which this particular section could be germane, because there was no proof of exclusion on a racial or religious grounds.

For these reasons, we ask that this Court uphold the constitutionality of the Rhode Island Salary Supplement Act, as applied to the teachers in the nonprofit, nonpublic schools.

Hugo L. Black:

What was the handbook?

Edward Bennett Williams:

I’m sorry Mr. Justice.

Hugo L. Black:

What was the handbook?

Edward Bennett Williams:

The handbook was promulgated in 1965 Mr. Justice and—

Hugo L. Black:

By whom?

Edward Bennett Williams:

And given by the superintendent of schools—

Hugo L. Black:

What schools?

Edward Bennett Williams:

The parochial schools in Rhode Island, and given to the principals of the various schools and all of the teachers, who testified in this record were thoroughly unfamiliar with it, because none of them had either been asked to follow it nor was anyone in possession of it, nor was anyone in fact following.

Hugo L. Black:

Who did he give it?

Edward Bennett Williams:

He gave it to the principals.

Hugo L. Black:

Why did he give it to them?

Edward Bennett Williams:

He gave it to the principals, because I believe it was an aspiration for the way that he wished these schools to operate, but in fact, they were not operated and the testimony in the record is to fact that they were not operated under the sample.

Hugo L. Black:

He gave it to the teachers (Voice Overlap).

Edward Bennett Williams:

No, he didn’t give it to teachers Mr. Justice—

Hugo L. Black:

To the superintendent?

Edward Bennett Williams:

He gave it only to the principals of the schools.

Hugo L. Black:

He gave it to the principals.

Edward Bennett Williams:

Yes sir.

Hugo L. Black:

Given by the superintendent of all the schools.

Edward Bennett Williams:

Yes sir.

Hugo L. Black:

Who had power to hire and discharge.

Edward Bennett Williams:

He had the power to hire and discharge.

Hugo L. Black:

And tell them this was what they wanted.

Edward Bennett Williams:

And he testified Mr. Justice that the handbook had been superseded by other directives, and that it was inoperative and (Voice Overlap).

Hugo L. Black:

What page did he testified that it had been superseded?

Edward Bennett Williams:

The testimony of Father Mullin appears in the record over many pages, beginning if the Court please.

Hugo L. Black:

I mean which part shows—

Edward Bennett Williams:

Well, I directed the—

Hugo L. Black:

(Voice Overlap) has been superseded—

Edward Bennett Williams:

I directed the Court’s attention to pages 120 to 127, where those stipulations were worked out.

Hugo L. Black:

Well, does it say that this has been superseded (Voice Overlap) were the principals told that—

Edward Bennett Williams:

At page 68, the superintendent of schools was asked about the handbook, is that handbook now in effect?

Yes except, insofar as it has been superseded by later directives.

Now, if the Court please—

Hugo L. Black:

Well, now where is the place that shows it was superseded by later directives.

Edward Bennett Williams:

Pages 120 to 127.

Directing your attention Mr. Justice to page 121, it was stated, they will be read in to the record with the understanding that if Father Mullin were called, he would testify that although they have never been formally repealed or superseded by a written document, nevertheless they are not now in effect or not being carried out.

And then, they go on to point out the various sections, the various paragraphs and the various subdivisions, which have been inoperative or superseded.

Hugo L. Black:

Does it show they had been withdrawn from the principals.

Edward Bennett Williams:

It does not, sir.

Warren E. Burger:

Thank you Mr. Williams.

Thank you gentleman.

This case is submitted.