RESPONDENT: Committee for Public Education & Religious Liberty
LOCATION: Allegheny County District Court
DOCKET NO.: 72-269
DECIDED BY: Burger Court (1972-1975)
CITATION: 413 US 472 (1973)
ARGUED: Mar 19, 1973
DECIDED: Jun 25, 1973
Jean M. Coon - for appellants Levitt and others
Leo Pfeffer - for appellees
Porter R. Chandler - for appellants non-public schools
Facts of the case
Media for Levitt v. Committee for Public Education & Religious Liberty
Audio Transcription for Oral Argument - March 19, 1973 in Levitt v. Committee for Public Education & Religious Liberty
Warren E. Burger:
We'll hear arguments next in 72-269, Levitt against Committee for Public Education and 72-270 and 271.
Ms. Coon, you may proceed.
Jean M. Coon:
Mr. Chief Justice and may it please the Court.
The statute at issue on this appeal, Chapter 138 of the New York Laws of 1970, provides for the payment by the State to non-public schools within the State, specific sums of money as partial reimbursement of the expenses of record-keeping, testing, and reporting incurred by the non-public schools in complying with requirements of state law and regulation.
The laws and regulations referred to have been enacted for the purposes of the examination and inspection of the non-public schools by the State.
The examination of this statute to determine its validity, must we feel be made in the perspective of the total historical educational picture in the State of New York.
From the creation of the University of the State of New York in 1787, the regents of that University and subsequently the Commissioner of Education as its administrative arm had a general supervision over all educational institutions in the State of New York, both public and private.
All private educational institutions from elementary grades through colleges receive their charges from the Board of Regents.
The state education law gives the Commissioner of Education the power to examine and inspect private as well as public institutions of learning, to determine whether or not they comply with the compulsory attendance and instructional requirements of the state law.
The state education law not only requires children to regularly attend some school, either public or private, but sets minimum standards of education including course content which must be met by the schools which these children attend, in order that their attendance does comply with the compulsory attendance laws.
The importance of this supervisory function to the States concerned, relative to its children's education was recognized by the framers of the state constitution in 1894 when in adding a provision prohibiting aid to sectarian schools, they specifically accepted expenditures of money for the purposes of examination and inspection, in the carrying out of this function of examination and inspection and general supervision over the education provided by non-public schools in the State.
The State requires the schools to perform certain testing, record-keeping, and reporting services to the State.
Among these are the administration of tests, including Regents' examinations which are statewide tests of specific subject matter achievement, Pupil Evaluation Program Tests in grade six and nine, and other general statewide evaluation tests also used in public schools.
And in addition, the regulations of the Commissioner of Education require the non-public schools to conduct a continuing program of individual pupil testing in all grades to provide an adequate basis for evaluating pupil achievement.
In addition to the testing program, the non-public schools are required to maintain health records, records of marks, attendance records, provide information under the basic educational data system, which includes statistical information as to students, teachers, curricula offered, physical plans and so forth, and of secondary schools, additional data on a more detailed basis than in the basic educational data system.
These requirements imposed upon non-public schools by law or regulations involve considerable addition expense to the schools for which, immediately prior to the enactment of Chapter I38, the schools were not compensated.
While immediately prior to the enactment of the statute, the schools were not compensated, the State has had a long history of providing some compensation to some non-public schools in recognition of the cost burden imposed by the State in assuring that the requirements of the compulsory attendance laws are being met.
Beginning in 1892, appropriations remain annually to so called academies for services in connection with the compulsory attendance laws.
Those academies included sectarian and non-sectarian, secondary non-public schools.
The provision for such compensation was retained in the state's education law until 1930, but even after repeal in that year, appropriations continued to be made and in the State's local assistance appropriation bills, in connection with the attendance requirements of academic pupils.
Only in the years between 1968 and the enactment of the legislation at issue here for no payments made to any non-public schools for these purposes.
The legislation adopted in 1970 therefore, merely reinstated a past practice of compensating non-public schools for record-keeping and examination services required by the state updated the amount paid to reflect current economic conditions and made the base of payment more equitable by including all non-public schools at all-state imposed examination and recordkeeping requirements.
The cost analysis studies made for the State Education Department, in which there are exhibits in this case, exhibits D and G in a separate folder of exhibits submitted to the Court, and which were made by three individuals acting independently of each other, demonstrate that the payments made to the non-public schools are justified in amount, and are still substantially less for the actual cost of performance of the services.
Appellees do not dispute these conclusions, except by alleging that the administration of test is a part of the teaching function of the non-public schools and then consequently New York is paying the schools for the cost of education.
This is a matter of perspective.
From the State's point of view, we are not paying the schools to administer tests as part of the educational program of the schools, but rather as a method of evaluating the achievement of the schools in meeting minimum standards of education.
This assumes that the teaching function per se has been completed prior to the administration of a test as a measuring device, and we submit that is the more reasonable viewpoint on the aspect of the State's payment -- in this -- this regard.
The past decisions of this Court have not prohibited all payments or benefits to non-public schools.
Justice, they have not permitted all payments or benefits.
In Everson, the activities which were described as prohibited were those directed to the aid of religion as such.