Roemer v. Board of Public Works of Maryland – Oral Argument – February 23, 1976

Media for Roemer v. Board of Public Works of Maryland

Audio Transcription for Opinion Announcement – June 21, 1976 in Roemer v. Board of Public Works of Maryland

del

Warren E. Burger:

We will hear arguments next in 74-730, Roemer against the Board of Public Works.

Mr. Greenwald.

Lawrence S. Greenwald:

Mr. Chief Justice and may it please the Court.

This is an appeal from the United States District Court of Three Judges for the District of Maryland.

At issue is the constitutionality of a Maryland law which authorizes the direct payment of public aid to church-related and other private colleges.

The appellants are four Maryland citizens and taxpayers.

They contend that this Maryland law violates the Establishment Clause of the First Amendment as applied to the states through the Fourteenth.

The appellees are four church-related colleges of Maryland as well as the members of the Board of Public Works of Maryland which is charged with administering the statute.

A Three-Judge panel which had been convened upheld the constitutionality of this legislation by a 2-1 vote.

At the outset, I would like to invite the Court’s attention to at least one major distinction between this legislation and other church state legislation previously considered by the Court.

This legislation provides for a general purpose grant to be paid directly to church-related colleges.

It is not limited, for example, to construction grants such as this Court upheld in 1971 in Tilton versus Richardson.

The Act at issue would allow the payment of both capital and operating expenditures with state aid, and so the aid could be used for construction, maintenance, and repairs of buildings, teacher salaries, scholarships, and virtually any of the myriad of costs which are incurred by church-related colleges.

William J. Brennan, Jr.:

But there is some limitation?

Lawrence S. Greenwald:

The only use restriction, Mr. Justice Brennan, is found in Section 68 (a) of the Act which states that no money shall be used for sectarian purposes.

That is the only use restriction which is in the Act or in the recently promulgated regulations.

In order for a college to be eligible for aid, it must meet a variety of secular requirements.

For example, it must be a non-profit educational institution.

It must be private, accredited by the State Board of Education and so forth.

The only eligibility requirement relating to religion is that the institution cannot be one awarding only seminarian or theological degrees.

And so, an institution such as Mt. St. Mary’s College, one of the appellees, which awards both seminarian degrees and liberal arts degrees may be eligible for aid under the Act.

As I have indicated earlier, the Act is administered by the State Board of Public Works.

The Board of Public Works is assisted by the Council for Higher Education which undertakes the buts and bolts stated in the administration of the Act.

The administration of the Act includes a three-stage process of enforcing the use for sectarian purposes restriction.

The first stage is a pre-expenditure report which is filed annually by the school with the state.

This, according to the recently promulgated regulations, identifies the purposes for which the aid is intended to be used and includes an affidavit by the institution that the aid will not be used for sectarian purposes.

The second stage, again, furnished on an annual basis, is a so-called Utilization of Funds Report.

This is a second report furnished by the institution to the state which describes how the aid in fact has been used.

The third stage of enforcement of use restriction involves necessary follow up by the state to ascertain that the aid was not used for religious purposes.

This follow up may be in the form of inquiries by the state to the institution for more details as to how the aid was used.

Lawrence S. Greenwald:

It may also be in the form of audits to which these expenditures are subject.

As of the date of the judgment, there were 18 aid-recipients in Maryland.

Four of these, four appellees, are admittedly church-related institutions.

Now, the appellees, as I have said, are immediately church-related and the lower court expressly found that they were church-related.

The lower court also found that their predominant mission is the functioning as a secular educational institution.

The lower court also found that all of the schools have secondary objectives; the encouragement of spiritual development of the students.

This finding as to secondary objective is plainly supported by the record and by the school’s own perceptions of themselves.

For example, Loyola College expressly identifies itself with the Catholic and Jesuit tradition.

The other appellees have similar expressions of identification.

This Court’s decisions have furnished us with a three-fold framework of analysis in establishment clause questions.

In order for a statute to survive an establishment clause challenge, it must have a secular legislative purpose, its principle or primary effect must neither advance nor inhabit religion, and the statute must not foster excessive government entanglement with religion.

The appellants here, as below, offer no challenge as to the secular legislative purpose of the statute.

However, the appellants do challenge the statute on the grounds that it promotes excessive government entanglement with religion and that its primary effect is to advance religion.

I would like to first turn to the issue of entanglement, and running through any analysis of entanglement according to this Court —

William J. Brennan, Jr.:

(Inaudible) Straighten me out on one thing. Western Maryland College is no longer in the case?

Lawrence S. Greenwald:

That is correct, Your Honor.

William J. Brennan, Jr.:

And how and why did they opt out?

Lawrence S. Greenwald:

A settlement was reached between Western Maryland College and the appellants.

William H. Rehnquist:

How does one settle a case such as this where you are dealing with a state statute?

Lawrence S. Greenwald:

Western Maryland College, Your Honor, through the litigation had taken the position that it was not a church-related college.

Yet, the lower court plainly found that at least certain vestiges of church-relatedness remained.

The settlement was predicated upon the removal by Western Maryland College of even these vestiges of church-relatedness.

The appellants agreed to dismiss the appeal provided Western Maryland would remove the vestiges of church-relatedness.

William J. Brennan, Jr.:

Could you describe what the vestiges were?

Lawrence S. Greenwald:

I can describe some of them, Your Honor.

These included religious symbols on the facades of buildings and inside some of the buildings.

Western Maryland College agreed to remove them.

These included the financial support of a certain council which operated for religious purposes within Western Maryland College.

Financial support was not a major item, but it was there and Western Maryland agreed not to support it.

It included a direct tie-in to the sponsoring church and the furnishing of certain reports to that church.

Lawrence S. Greenwald:

It agreed to remove this.

It included a department of philosophy and religion in which all of the teachers were clerics of the sponsoring order and it agreed with the normal attrition applicable to these individuals such as through retirement or illness or death or whatnot to replace them so that the makeup of that department would not be all clerics sponsoring faith.

I do not recall other specific instances, but the settlement agreement also included a general provision that Western Maryland College would remain totally neutral as to the furtherance of spiritual development of its students.

(Inaudible)

Lawrence S. Greenwald:

Your Honor, I do not recall whether Western Maryland College gave degrees in theology.

They had a department.

Lawrence S. Greenwald:

They had a department, Your Honor, of Philosophy and Religion which included certain religion courses.

They took the position throughout the litigation that these religion courses were taught in a strictly academic manner, and they agreed that any religion courses they had would continue to be taught in an academic manner.

I do not know that they had a major in theology.

I just do not recall that.

Byron R. White:

You would have accepted that — if you would accept the fact that they teach theological courses, you would accept if they did and the fact that they had degrees in theology?

Lawrence S. Greenwald:

If I accept it for purposes of the settlement, I would have accepted that, yes.

I would point out, Mr. Justice White, that I would draw a sharp distinction between the academic teaching of theology and non-academic teaching of theology.

Byron R. White:

(Inaudible) I mean, at least they claim that they did.

Lawrence S. Greenwald:

They claim to a very serious question about that and, as the lower court expressly did not find, it was unable to characterize exactly how theology was taught at these schools.

Theology was theory which I think gave the lower court the most difficulty.

Turning ahead to the issue of entanglement, running through the entanglement analysis is the concept that it is not necessarily actual entanglement which requires the statute to be struck down on Establishment Clause grounds.

Potential entanglement will suffice.

Warren E. Burger:

It is excessive, not merely entanglement, was it not?

Lawrence S. Greenwald:

Yes.

Warren E. Burger:

That is the word that is involved here?

Lawrence S. Greenwald:

That is correct.

There must be excessive entanglement.

This Court’s decisions teach us that an analysis of excessive entanglement necessarily involves an equation with three variables.

The three variables are the character and purpose of the institution, the nature of the aid, and the resulting relationship between the church and state.

This Court’s decisions also teach us that these variables are to be judged on a case by case basis and in the final analysis it is the cumulative effect of these variables in any given case which determines whether or not the statute at issue is constitutional.

Turning to the first variable, the character and purposes of the institution, the lower court expressly held that the schools here confirmed in character and purposes to those schools which were approved for aid in Tilton versus Richardson in 1971.

However, running through its opinion, are, I submit, two distinctions between these schools and the Tilton schools.

In Tilton, this Court employed as a foundation the absence of any restriction based upon religion, upon faculty appointments.

In respect of these schools, the lower court expressly found that there was a policy or practice at least in part of faculty recruitment based upon religion.

Lawrence S. Greenwald:

More specifically, Loyola College admittedly, and as the lower court found, has the policy of attempting to recruit to its faculty each year two members of the Sisters of Mercy and two members of the Society of Jesus, both of which are sponsoring religious orders.

That is not to say that if Loyola is unable to find members who are qualified, they will not turn to people of other religions and hire them.

They will.

Nonetheless, their affirmative policy is to recruit members of these religious orders and, it is appellants’ contention that to the extent Loyola or any other school has a policy of recruitment at least in part based upon religion, it necessarily has the corollary policy of not recruiting people from other religious backgrounds and those of the sponsoring order.

Lewis F. Powell, Jr.:

What is the composition overall of the faculty you are describing, Loyola?

What percentage were representatives of the particular religious faith?

Lawrence S. Greenwald:

I do not know the exact percentage.

This information was unavailable at trial.

Of course, as I recall, records of each particular individual’s religion simply were not kept.

There were, as I recall, approximately 20-25% of the faculty members who were either Roman Catholic priests or members of the Sisters of Mercy.

This information was available since the catalogs identified by certain symbols, members of these religious orders.

Potter Stewart:

Does the record show whether or not when they taught they were dressed in their clerical clothing to identify their full-time occupation association?

Lawrence S. Greenwald:

The record shows that some were so-dressed and others were not.

This was something that was left up to the particular teachers.

Similarly, some wore religious symbols such as crosses and some did not.

Similarly, some classrooms had in them crucifixes or other religious symbols and some did not and, I do not know the precise numbers.

William J. Brennan, Jr.:

The policy you described, that is recruiting annually two Sisters of Mercy and two members of the Society of Jesus, could you not at least know in the case of Loyola what the percentage was of Roman Catholics exactly?

Lawrence S. Greenwald:

Well, I —

William J. Brennan, Jr.:

I understood you to say you could not answer Justice Powell as to the percentage of the total faculty who were religiously ordained?

Lawrence S. Greenwald:

Mr. Justice Brennan, I am able to state that approximately 20-25% of the faculty included members of either the Society of Jesus or other Roman Catholic priests.

At each of these schools?

Lawrence S. Greenwald:

No, sir.

I am talking now of Loyola College.

The percentages did vary.

The percentages were greater in St. Joseph College and I have forgotten exactly what the percentage were, but it was something like 60 or 70% of the teaching faculty which was made up of members of the sponsoring religious order, the Daughters of Charity.

And the College of Notre Dame and Mt. St. Mary’s College had percentages, as I recall, which were in between that is of clergy.

What I said I did not know was the number of faculty which were Catholic as opposed to some other religion, that, I am not able to identify at all.

Now, the College of Notre Dame and St. Joseph College, as the lower court found, also have practices of recruiting faculty based upon religion.

The lower court found that reason for this was budgetary.

That is, that it involves less expense to the schools involved to invite and receive through their faculties, members of these religious orders than independent persons and that was the reason for that.

Lawrence S. Greenwald:

There is another major distinction between these institutions and those which were involved in the Tilton versus Richardson.

In Tilton, this Court pointed out that theology was taught academically.

This was based upon a stipulation by the parties to Tilton that theology was in fact taught academically.

There was no such stipulation in this case.

As I have indicated earlier, the Court had considerable difficulty with the whole question of theology.

It found itself unable to characterize one way or the other whether theology was taught academically or religiously.

However, it did recognize that given the limited selection of courses at these schools and given that this limited selection was focused upon Christianity and given that the courses were taught by Maryland, and in some cases, exclusively by clerics of the sponsoring faith, there existed at least the potential that theology could be used to further the secondary purpose of these institutions, that is, the religious purpose.

William H. Rehnquist:

Mr. Greenwald, what is the difference between teaching theology academically and teaching it religiously?

Lawrence S. Greenwald:

I can only reply in the most general terms, Mr. Justice Rehnquist.

I think when you teach about religion, that is when you teach that at a certain age certain people believe x, y, and z, and similarly, other people believe a, b, and c.

In other words, you teach the historical evolution and you teach the modern day beliefs of people.

That is teaching about religion, that is academically.

However, when you purport to teach as a matter of fact that at a given time the messiah had come and that a certain person, Jesus Christ, was the messiah and that all members of the Roman Catholic Church in order to save their souls must believe these things.

That is teaching religiously.

Now, obviously, there are all sorts of shades of grey which one could interpose, but that is my understanding of the distinction.

William H. Rehnquist:

Let us take it over too.

Suppose it is a philosophy course rather than a religious course, and the professor is teaching the history of philosophy and he happens to feel that Kent was right and Hume was wrong and his notions about epistemology.

Now, I take it that in a normal college course the professor is perfectly free in presenting the subject objectively, but to express a preference for one or the other, is he not?

Lawrence S. Greenwald:

I think he is.

William H. Rehnquist:

Or at least not to treat them completely as if he were dissecting a frog, the way you describe the historical teaching of religion or the academic treatment?

Lawrence S. Greenwald:

Well, the dissection of a frog is the clearest example I can think of for the academic teaching of theology.

As I have indicated, Mr. Justice Rehnquist, there are many shades of grey in here.

I think what you say is correct, that a teacher can teach a view is, b view is, my preference is and I think that would be the academic teaching of theology.

William H. Rehnquist:

That would still be academic?

Lawrence S. Greenwald:

I would say so.

Potter Stewart:

But he could not teach is that a certain theological tenant is true and everything else s false?

Lawrence S. Greenwald:

That is correct.

Potter Stewart:

That that is no longer the academic teaching of comparative religion nor the history of religion nor something like that, but it is theological propaganda, if you will, to use that word?

Lawrence S. Greenwald:

I think that is correct, but, Mr. Justice Stewart, I —

Potter Stewart:

To inculcate specific theological tenants?

Lawrence S. Greenwald:

Well, that is right and that is the key.

The inculcation of specific theological tenants is I think, largely a matter of degree.

It can be done extremely subtly.

It does not have to be done as blatantly as I just described and so in a continued emphasis in a theology class about the professor’s own individual beliefs, it happens to coincide with the beliefs of the sponsoring order, you at least have the potential that the line or the wall of separation will be abridged in that course and it is that potential against which the Establishment Clause must guard.

John Paul Stevens:

Mr. Greenwald, we interrupted you already in your thought, is there a distinction between a school which is church-related, as I understand it these schools are admitted by everyone to be church-related, and being sectarian?

Do those terms mean different things and if so, what is the difference?

Lawrence S. Greenwald:

That is a difficult question to answer, Mr. Justice Stevens.

I would say that the guidance from this Court’s decisions is today unclear.

In Hunt versus McNair, this Court referred to a sectarian institution as one in which religion is so pervasive that in effect, its secular and religious functions merged, the one is subsumed with the other.

That, in general terms, given the guidance of Hunt versus McNair, is how I would describe the sectarian institution.

But —

John Paul Stevens:

These schools meet that standard?

Lawrence S. Greenwald:

Pardon me?

John Paul Stevens:

You do not contend that these schools would satisfy that standard?

Lawrence S. Greenwald:

I did so contend, but the lower court expressly ruled that these schools were not pervasively sectarian.

John Paul Stevens:

You are not challenging that finding on appeal either?

Lawrence S. Greenwald:

Yes, I am and I propose to identify three specific factors, any one of which, I submit, place these schools in the pervasively sectarian category.

I can do so right now in response to your question if you like.

Potter Stewart:

(Inaudible) Private colleges and universities are or at least historically were church-related, Harvard, Yale, Princeton, Columbia, Woodenburg, Canyon?

Lawrence S. Greenwald:

It is my understanding that, from a historical point of view that is correct.

Potter Stewart:

There may be exemptions, I think I know one in Indiana, but the vast majority of private colleges and universities are church-related, are they not?

Lawrence S. Greenwald:

Well, one time they were.

Whether that is —

Potter Stewart:

Or at least vestigially?

Lawrence S. Greenwald:

If given schools have vestiges of church-relatedness then sure, they are, but I would point out that that in itself does not really answer any question dealing with the Establishment Clause because, as this Court has taught us, it is the degree of church-relatedness which is an important factor.

Potter Stewart:

Is it a matter in each case of degree rather than two separate categories between church-related on the one hand and sectarian?

It is how much church-related, is it not?

Lawrence S. Greenwald:

I would say, yes.

I agree with that, Mr. Justice Stewart, with one exception.

I think that there are certain factors which may be applicable to a church-related school which in and off themselves would disqualify those schools from aid.

Lawrence S. Greenwald:

One of the factors which I think is present in this case is the introduction of prayer into the classroom.

Why do I think this is important?

The entire premise upon which this Court in the past has permitted state aid or federal aid to church-related institutions is that the religious functions are separable from the so-called secular functions.

With respect to private colleges, the secular function at bottom is the classroom teaching of given subjects.

I submit that there is no more cogent way to mingle the religious into this secular educational function than by introducing prayer into the class.

Now, in fact, each of the appellees, as the lower court found, had a practice of prayer in the class.

The lower court found this practice to be what the lower court termed “peripheral” to the teaching of the various subjects.

However, prayer was introduced by the teachers in a wide variety of courses.

For example, chemistry, mathematics, business administration, physics, not to leave out of course philosophy and theology.

Byron R. White:

It was not a school policy in any school to state prayer?

Lawrence S. Greenwald:

No, sir, it was not the school’s —

Byron R. White:

But it was permitted, that was up to the teachers.

They just did not forbid it.

Lawrence S. Greenwald:

Exactly.

It was regarded as a facet of the teacher’s academic freedom.

Byron R. White:

Also, it was held — was permissive with the students, was it not?

Lawrence S. Greenwald:

That is right.

The students were not required to state prayer.

The fact is that many did, but many others did not.

Potter Stewart:

What if you had a biology professor at Harvard who chose to begin his biology courses each session with prayer?

Would that make Harvard an impermissible recipient of a governmental aid?

Lawrence S. Greenwald:

Well that too, Mr. Justice Stewart, is very difficult to answer and I can only answer it this way.

Potter Stewart:

The point was that if there are prayers in a classroom at Harvard that that is a touchstone, that is a litmus paper test of whether or not something is impermissible and church-related?

Lawrence S. Greenwald:

That is correct and, to directly respond to your question, I would say that if Harvard did so permit a prayer in a classroom, it should not receive the state aid.

Now, the question —

Potter Stewart:

It can provide for itself, at least to the last I knew it did, of being a free institution and if a particular professor decided of zoology or biology that he wanted to open his class with a prayer and any students who wanted to join in could join in, others are free not to or to arrive late.

Would that in and off itself make Harvard a constitutionally impermissible recipient of government aid?

Lawrence S. Greenwald:

Well, as I have answered before, I think it should.

But the question which I think has to be answered — first, you do not reach that question in this case.

Here, you do not have one instance of a prayer in a biology class.

Lawrence S. Greenwald:

You have instances of prayer ranging from 67 courses roughly at Loyola College which meant 68% of the courses to an overwhelming majority of the courses at St. Joseph College, something like 70% of the courses.

I acknowledge that it may be possible to draw lines and I am frankly at a loss as to where to draw them.

Perhaps one can say that your particular biology class, Mr. Justice Stewart, should not receive the aid or perhaps the biology department should not receive the aid, or perhaps the department of physical sciences should not receive the aid.

I frankly do not know where to draw the line.

The litmus paper test, which I think makes it easy as to where to draw the line, is simply to avoid prayer.

The point —

Potter Stewart:

In the chemistry class in Harvard the professor, a very able chemist, also happens to be a very strong atheist and he put into his class each day a couple of minutes is used propagandizing atheism.

Would that make Harvard eligible as a recipient of public funds?

Lawrence S. Greenwald:

Well, I would say that is different than prayer.

Potter Stewart:

How and why —

Lawrence S. Greenwald:

Pardon me?

Potter Stewart:

How and why constitutionally is it different?

Lawrence S. Greenwald:

Because prayer, by its very nature, is religious.

It seems to me religious —

Potter Stewart:

By and under the decisions of this Court, it is equally protected constitutionally?

Lawrence S. Greenwald:

I understand it is protected constitutionally, but I do not think it arises to the same degree of prayer.

Prayer by its —

Potter Stewart:

Do you think that tax funds could be used to support a center of atheistic teaching without violating the Establishment Clause?

Lawrence S. Greenwald:

I think that, under certain circumstances, tax funds could be so used.

If it were clear, as in Tilton for example the party stipulated that the teaching of atheism was strictly academic, that arguably would be a secular educational function of the institute and under this Court’s decisions, it could be supported by tax aid.

Warren E. Burger:

I take it, between teaching atheism, advocating it, and teaching about it, is that where you draw the line?

Lawrence S. Greenwald:

Yes, Mr. Chief Justice.

I am making that distinction.

We just like to offer that this Court in Tilton had in one of its touchstones, the absence of worship which, I assume, includes prayer in a classroom from the types of facilities which were there, permitted.

I would like to turn now, if I may —

Warren E. Burger:

It went beyond a little, did it not, by cutting off the 20-year limitation?

Lawrence S. Greenwald:

That is correct.

That is —

Warren E. Burger:

So, in effect, it could not be converted into a chapel at the end of 20 years as the original grant conceivably would have permitted?

Lawrence S. Greenwald:

That is correct.

Lawrence S. Greenwald:

It did strike down that enforcement provision of the Higher Education Facilities Act in Tilton.

John Paul Stevens:

Mr. Greenwald, before you go back to your argument, would you tell us the other two litmus tests of the sectarian institution?

One is prayer in the classroom.

What were the other two that you said was shown in the record?

Lawrence S. Greenwald:

Yes, sir.

Another, I submit, is the recruitment of faculty based upon religion.

This too, I submit, strikes at the heart of this Court’s premise for allowing public aid to church-related schools which is that the secular functions and the religious functions are separable.

When you recruit or even have a policy to recruit faculty based upon religion, it seems to me that you necessarily strike at the heart of that premise, even though the policy is partial, even though there are exemptions, and it does not extend to the entire faculty recruitment practices at the school.

The third litmus paper test, Mr. Justice Stevens, relates to the granting of scholarships.

I would say that where an institution such as the College of Notre Dame in this case base these scholarships at least in part upon religion, that too strikes at the heart of this Court’s premise that the religious functions of an institution and academic functions are separable.

The fact is that the College of Notre Dame here automatically awards scholarships to teachers of Catholic parochial schools and some members of the School Sisters of Notre Dame which is the sponsoring religious order.

I would like to, if I may, focus upon one or two critical points of the appellants’ case here.

First, it relates to the nature of the aid.

The lower court specifically held that the difference between the so-called general purpose grants, as are involved in this case, and special purpose grants, as were involved in Tilton versus Richardson, are constitutionally insignificant, but only point out that no prior case decided by this Court involved aid in such a broad form as is offered by the State of Maryland.

In fact, even the aid which this Court has struck down was far more limited by its very nature than that aid permitted by the State of Maryland.

The basic distinction offered by this Court is that secular, neutral, or non-ideological services, facilities, and supplies may under certain circumstances be permissible.

However, aid which at least potentially, involves the danger of fostering religion is not.

The distinction at the bottom is between aid which is atmospherically indifferent on the score of religion, in Professor Frewin’s (ph) words, from aid which potentially foster this religion.

Maryland, insofar as it may extend to virtually anything under the sun, short of so-called sectarian purposes to which the school wants to use the aid is necessarily too broad.

Now, the resulting relationship is the third problem of the excessive entanglement analysis.

Basically, the teaching by this Court is that guarantees which are comprehensive and continuing will create an aura of excessive entanglement and so in this case, contrary to Tilton and Richardson, you have annual appropriations and annual payments of the state to the church-related institution.

Contrary to Tilton versus Richardson, you have at least two reports, the Pre-Expenditure Report and the Post Expenditure Report, submitted by the school to the church-related institution.

Contrary to Tilton, the state analyzes each of these reports each year to determine whether or not the expenditure was religious or secular.

Contrary to Tilton, the schools here have their expenditures subjected to annual audit.

Contrary to —

Warren E. Burger:

Would you agree that and do you know whether in Maryland the annual reports of church-related schools are analyzed to see if they are teaching proper amount of reading, writing, arithmetic, have certain hours, and that sort of thing.

Is there sort of an audit done?

Lawrence S. Greenwald:

Well, information is furnished to the Maryland Council of Higher Education dealing with that sort of thing.

Now, I do not know if it specifically deals with the proper amount of reading, writing, and arithmetic, but a vast —

Warren E. Burger:

Does Maryland have a certain minimum requirements as to what a practice school must to be a surrogate for the public school system?

Lawrence S. Greenwald:

In order to become a creditor, yes sir, they do.

And, information —

Warren E. Burger:

At least try to determine whether they are teaching children to read?

Lawrence S. Greenwald:

Well, from the reports, I read about Maryland schools.

I am not so sure that they do, but there are at least minimal standards which are observed by the state through the collection of information from these church-related institutions.

Warren E. Burger:

So, in fact, there is the surveillance standing alone is not dispositive of these issues, is it?

Lawrence S. Greenwald:

No, not at all but it is the degree of surveillance, Your Honor, which I submit is dispositive of these issues.

The surveillance here, I submit, involves precisely those kinds of surveillance struck down in Lemon versus Kurtzman and those kinds of surveillance upon which the Court in Tilton distinguished Lemon versus Kurtzman.

In Tilton, you had a one-time single purpose construction grant.

This was an important corner stone of the Court’s decision.

Here, under the Maryland aid, you have no such thing and that is what creates excessive entanglement.

(Inaudible) this involve simply examining the reports of the expenditures to see if, as reported, reflected on the books or apply some kind of surveillance at the institution itself by how many people and sort of thing?

Lawrence S. Greenwald:

That is undefined, Your Honor, both in the statute.

Does the record show the type of practice has been?

Lawrence S. Greenwald:

Well, there has been no practice of audits.

There was, however, testimony and the lower court found that the audits would be quick and non-judgmental.

That is a good question.

I submit that if an audit is non-judgmental, it cannot very well be very much good to enable the states to enforce its —

(Inaudible) same organization that performs the audits?

Lawrence S. Greenwald:

It is performed at the behest of the Maryland Council of Higher Education which I believe contacts the State Auditor’s Office to perform the function.

(Inaudible) how many people charged with responsibility of performing these audits?

Lawrence S. Greenwald:

Well, I do not know specifically how many people would perform it, but I do know that an analysis of the sectarian as opposed to a secular use would be made perpetually by the Council for Higher Education of the State of Maryland.

Warren E. Burger:

Are you talking about something different from the process of surveillance for accreditation?

Lawrence S. Greenwald:

Yes, I think it is significantly different, Your Honor, because here, under this aid program, the state expressly analyzes religious use of aid funds as opposed to secular use and this is a rather involved sort of analysis.

It is a continuing sort of analysis, both of which are diametrically opposed to the type of analyses which were required in Tilton versus Richardson.

William J. Brennan, Jr.:

(Inaudible) that constitutes an impermissible entanglement?

Lawrence S. Greenwald:

No, sir.

Again, entanglement is really an equation with the three variables.

I am contending that the cumulative effect of; one, the character and the purposes of the institution; two, the broadest possible nature of the aid here and three, the prophylactic measures which have to be taken in order to enforce the ban against sectarian use together cumulatively.

There has to be an annual legislative appropriation?

Lawrence S. Greenwald:

There is an annual appropriation, yes, sir.

The point of what that involves?

Lawrence S. Greenwald:

Well, that leads to the question of a so-called political entanglement.

There is a potential for political entanglement and the record shows that at least one president of one institution here who is a Roman Catholic priest has been on the political scene advocating greater state aid to these church-related and other private schools.

I would like to close, if I may, since my —

John Paul Stevens:

Just one question, Mr. Greenwald.

Lawrence S. Greenwald:

Yes, sir.

John Paul Stevens:

Does the record tell us whether there is a follow-up audit with respect to the 14 schools that are not church-related?

Lawrence S. Greenwald:

I do not think the record addresses it in those terms.

However, the regulations which are applicable to both church-related and non-church-related schools provide for necessary follow-up, including void.

So, I would say an order could be applied to these other schools.

John Paul Stevens:

Does the regulation contemplate that it will be (Inaudible)?

Lawrence S. Greenwald:

The regulations do not mandate that there would be an order.

They make it available under subject to order.

In Tilton versus Richardson, this Court, for the first time, permitted a payment of direct aid to church-related institutions.

It did so under expressed narrow constraints and later cases have upheld the narrowness of these constraints.

Appellants would urge the Court not to effectively abandon these restraints because to do so would breach Jefferson’s wall of separation, and we submit would be an unconstitutional establishment of religion.

Thank you.

Warren E. Burger:

Your clients were the moving parties, the plaintiffs in this case?

Lawrence S. Greenwald:

That is correct, Your Honor.

Warren E. Burger:

That it is on them as to the burden of making whatever record needs to be made to determine these issues, is that not so?

Lawrence S. Greenwald:

That is correct.

The plaintiffs here have the burden of proof, one which I would submit, for purposes of this case, has been satisfied both by the decision of the Court below and by the rather large trial record.

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

Thank you.

Warren E. Burger:

Very well.

Mr. Nilson.

George A. Nilson:

Mr. Chief Justice and may it please the Court.

On behalf of the State of Maryland, I will speak to the history, the nature, and the importance of the Maryland Aid Program at issue in this case.

In doing so, I will necessarily deal with the primary effect element of the Establishment Clause as well as the counterweight part of that test, the requirement for the state to avoid excessive entanglement with religion.

George A. Nilson:

I will not dealing with any depth with the particular details as the Tilton type colleges involved in this case, but will leave that to Mr. Connolly who represents all of the appellee colleges here.

He will use the remaining 30 minutes of our time to discuss in depth the nature and character of these colleges and the importance of that character to the issues presented, and to speak in further detail to the primary effect and entanglement issues.

The State of Maryland does not have a program of aid to private elementary and secondary schools.

The grant program at issue here, as Mr. Greenwald has pointed out, involves aid to institutions of higher learning.

Do you think there is a fundamental difference at those levels?

George A. Nilson:

I think there is at least a difference in a way church-related institutions that operated those levels have dealt with the education of students in the two different environments in the way that that has evolved.

I think there is also a significant difference wholly apart from the way the institutions have approached it because of the age and the maturity and the intellectual freedom, the sense of the economic freedom on the part of the student bodies, that I think makes the two backgrounds and the two settings substantially different and I think that was explicitly recognized in this Court’s plurality opinion in Tilton and later in the opinion in Hunt.

In Maryland, less than one-third of the institutions receiving aid under the program are church-related and have been found by the lower court to conform closely to the colleges considered by this Court in Tilton versus Richardson.

The original version of our statute was passed by the state legislature in early 1971, in obvious response to the growing financial needs of private colleges and universities.

In establishing a grant program that was not limited to one particular type of aid, such as capital grants for bricks and mortars, but rather permit flexibility.

The state was codified in funding a sound educational policy that remains extremely important to the state as well as the colleges today.

A policy which recognizes that different institutions have different financial needs from year to year and that if the state should respond to those needs as they evolve rather than locking all colleges in to a particular type of aid which may be artificially and unsoundly applied, satisfy contrive rather than real needs.

Shortly following the original enactment of Maryland’s program in 1971, this Court decided Tilton v. Richardson, upholding the federal capital facilities grant program there at issue, but holding that any funds paid to such colleges were constitutionally required to be paid subject to an explicit and permanent prohibition against sectarian usage.

Maryland responded immediately by amending its statute to include such a provision and by conferring certain responsibilities and powers in connection with the administration of our program upon the Maryland Council for Higher Education, a body already charged with substantial responsibilities and information gathering functions in the field of higher education.

As Mr. Greenwald has mentioned in his argument, the Establishment Clause in cases such as this breaks down into a three-part test.

Secular legislative purpose served by the statute about which there is no question.

The primary effect test and thirdly, the requirement for the government to avoid excessive entanglement with religion.

There is an inevitable tension between the primary effect and the excessive entanglement restriction.

A tension of which, we submit, the state and the Maryland Council are very much aware.

In essence, it is necessary for the state to avoid the payment of aid to a sectarian institution or to assist a specifically religious activity in an otherwise secular setting, to use the Court’s words in Hunt, and to do so without involving itself in an excessively entangling relationship with religion, where a school is pervasively sectarian, as has generally been the case with the primary and secondary schools which have been before the Court, a guarantee of no advancement of religion is required and almost invariably, the difficulty of separating the secular from the sectarian both makes it impossible to avoid aiding religion and require as a quantum of oversight which is necessarily excessively entangling.

But where institutions such as the institutions involved in this case, are not pervasively sectarian and are generally characterized by strong elements of academic freedom and discipline rather than religious indoctrination, limited sectarian activities can be separated from the dominant secular element and the problems of avoiding aid to the sectarian part are greatly simplified.

This, I would submit, is far more likely to occur at the college level.

Warren E. Burger:

(Inaudible) with respect to funds which go into general receipts of the college and maybe used for the payroll salaries of the teachers?

George A. Nilson:

For the payroll of teachers, the Maryland Council presently requires that any institution which uses funds for salaries identify the area of the institution in which those faculty members are working.

Following the District Court opinions below, and I might add that this has been applied not only with respect to these institutions, but also with respect to all colleges throughout Maryland, no payments are permitted towards the salary of any faculty member who is in a religion or theology department.

If an institution is using state funds to pay teachers in its home economics department that, as far as the Maryland Council is concerned, is perfectly permissible, but it would not be permissible for the institution to use funds for a teacher in a religion department.

Thurgood Marshall:

How about the fact of the numbers of clerics who are being paid directly by state funds?

George A. Nilson:

In terms of percentages of faculty members at these particular institutions who are clerics, the percentages vary to my knowledge, and I put aside the first year of the program because as I indicated, during the first year of the program there was no sectarian usage prohibition.

Those of the church-related appellee institutions, to my knowledge, have never, and this is not in the record because there had been no actual experience under the current program, but none of the appellee institutions have ever used state moneys to pay other than the lay faculty.

That is my understanding.

Thurgood Marshall:

In the record in this case, has any examination been made as to whether or not any money has been paid to clerics or not?

George A. Nilson:

Mr. Justice Marshall, I have to, again, reiterate that the posture in which this case was tried below, the statute had operated for a one-year period of time when it did not have a sectarian usage prohibition, when the Maryland Council had not been given responsibilities.

The statute was significantly changed at the end of that one-year period.

This lawsuit was filed at the time that statutory change was pending and very shortly before it had been enacted by the general assembly.

When the lawsuit was filed, the state voluntarily determined to escrow all funds that were being awarded to these appellee colleges and those funds were held in escrow pending the outcome of this case before the District Court.

As a consequence, at the time of the trial below no money had been paid by the State of Maryland under this aid program to, as far as the record is concerned, any church-related college and certainly not to any of these colleges so that the record is simply silent on that question.

Thurgood Marshall:

Is there anything in the order of the District Court that would prevent all of its money going to clerics?

George A. Nilson:

There is nothing to prevent all of this money going to clerics, but there is certainly something in the District Court’s opinion which is being followed by the state which would prevent this money from going to pay the salary of faculty members teaching in the religion and theology departments, and that prohibition is an explicit part of the regulations which the Council has since been adapted.

William J. Brennan, Jr.:

If the entire faculty of business administration, if there is one, the clerics, these moneys so far as the order of the lower court is concerned, could be used to pay their salaries?

George A. Nilson:

That is absolutely correct.

Warren E. Burger:

It would be subject to the restraint of the statute?

George A. Nilson:

Pardon me?

Warren E. Burger:

But now it would be subject to the restraint of the statute?

George A. Nilson:

No, it would not be subject to the restraint of the statute if — certainly, based on the findings of the lower court which is that these courses are not predominantly sectarian or basically academic institutions that there is nothing to indicate the courses anywhere outside of the religion or theology departments are taught in other than a purely academic fashion, I do not perceive that there would be any constitutional prohibition against the state paying the salary of a faculty member who happened to be teaching in the school of business and administration.

As a practical matter, I can tell you that I do not believe applications have been made, but as far as I am concerned, that person is first and foremost, based on the findings of the District Court, a teacher, a faculty member who is teaching a subject in an academic matter.

Warren E. Burger:

Mr. Nilson, none of these funds go to pay any part of the salary of any teacher who is also member of the clergy?

George A. Nilson:

No, Mr. Chief Justice, what I said was that, to my knowledge, no funds have been devoted to that purpose.

I do not believe that any applications, and this is because the applications which have come in since the trial in this case —

I understand you, except to the extent that the prohibition against paying the salaries of anyone teaching in the school of theology, any cleric teaching in the school of business administration, of medical school, or anything else could be paid with these funds, is that not right?

George A. Nilson:

That is correct, as far as the lower court’s order is concerned.

Thurgood Marshall:

He would be paid for holding prayers?

George A. Nilson:

Well, he would not be paid for holding prayers, Mr. Justice Marshall.

He would be paid for teaching.

William H. Rehnquist:

What if a clergyman runs for Congress?

Do you think there is anything to prevent the Treasury from paying his salary as a congressman?

George A. Nilson:

Well, I can think of at least one congressman who might be very disturbed at the present time if that were the case and I know that, for example, the State of Maryland has a provision in its constitution which goes back many years which prohibited any minister or clergymen from running and that provision was recently stricken down by the District Court of Maryland as violating the constitution.

I think the answer is that absolutely, if a clergyman successfully runs for Congress then his salary can be paid same as any other congressman.

Potter Stewart:

Am I stating this correctly as to what this law and the District Court judgment permits and authorizes?

Let us assume that every single teacher in all these institutions in courses in theology and religion is in fact a lay person, nonetheless, the law, as construed by the District Court, does not permit a public subsidy of their salaries, is that correct?

George A. Nilson:

That is correct.

Potter Stewart:

No matter if they are all lay people and on the other hand, let us assume that all of the faculty in all of the other areas and courses of these institutions, mathematics, biology, zoology, astronomy, home economics, foreign languages, English, and history and the rest of it are all clergymen or clergywomen, this law and the course decree permit public taxpayer subsidies of all their salaries, does it not?

George A. Nilson:

That is correct so long as none of them are serving, and this I am reading from the regulation, serving the chaplain or director of the campus ministry or administers or supervises any program of religious activities.

Potter Stewart:

Yes.

George A. Nilson:

That is right, but if they are teaching in the science department and they happen to be clerics, there is nothing in the District Court’s opinion that would specifically prohibit their salaries from being paid.

Warren E. Burger:

The District Court opinion you referred to in Maryland, I assume you meant the Federal District Court, it would violate the First Amendment, if there was a prohibition for the payment of salaries, would it not?

George A. Nilson:

I think that would be a very, very strong argument.

Again, these individuals are serving and are being paid as teachers and the result of applying that argument —

Warren E. Burger:

What they do rather what they are?

George A. Nilson:

That is exactly correct and it is what they are being paid for and they are being paid for being teachers not for being clerics.

They simply happen to be clerics.

John Paul Stevens:

Is it possible that the payment to these teachers freeze up other funds for paying the people who teach religion?

George A. Nilson:

That is always possible, Mr. Justice Stevens, and it happens with —

John Paul Stevens:

The difference whether they go into general funds, they are paid directly or indirectly?

George A. Nilson:

Well, it is a difference which has been developed by this Court and articulated in Walz, and Hunt versus McNair, and many other cases.

John Paul Stevens:

There is no subsidy to it?

George A. Nilson:

No, but the Court very clearly indicated in Walz and again reiterated in Hunt and as in other cases that the mere fact that one form of payment to a secular activity of a religious institution freeze up other moneys for that institution to be spent for other purposes which may be religious does not —

John Paul Stevens:

With respect to a general distribution of funds?

George A. Nilson:

Pardon me?

John Paul Stevens:

Has it ever so held with respect to a general distribution — an unrestricted distribution of funds?

George A. Nilson:

No, I do not think that this Court has ever indicated that the state or the federal government could simply just release money outright to a religious institution or to these colleges with no strings and just say put it in your general fund.

John Paul Stevens:

What is the string here?

George A. Nilson:

This grant here is a payment of funds which can be used for various purposes, but which may not be used for sectarian purposes.

It may not be used to build a chapel.

It may not be used to maintain a chapel.

It may not be used to pay the chaplain..

It may not, according to the District Court, be used to pay the salaries of faculty members in the religion or theology department.

So, it is a restricted grant program in that sense.

Now, a number of questions were asked earlier during Mr. Greenwald’s presentation on the way in which the program is administered and I would like to just touch briefly on that.

As Mr. Greenwald pointed out, following initial eligibility determinations, and I might add that there had been some institutions disqualified on a degree basis otherwise for being primarily religious, there is a pre and post expenditure affidavit requirement.

These are filed under oath by the Chief Executive Officer of the institution, and I submit, do not involve the state in any excessive entanglement.

George A. Nilson:

The Council has large amounts of detail available to it from its other duties in the process of analyzing or scrutinizing these reports is not entangled.

The audits are not annual audits.

As far as the record is concerned, they had never been performed.

The lower court found that they are quick.

They can be done speedily given the fund accounting system that is set up.

Exactly how long do the audits take?

George A. Nilson:

Well, the audits would only come into play if the state had reason to believe that a particular item may not have been spent for what it was described as being spent for as reported.

What they would do first, and the testimony indicates that, they might call upon the institution to have its own auditor to provide a report.

If the state still was not satisfied, then and only then might they send a state auditor out to the institution.

And what would he do if he went to the —

George A. Nilson:

He would go out and he would analyze the special revenue fund account which is required by the regulations —

Financial records?

George A. Nilson:

That is correct.

Even the classrooms or —

George A. Nilson:

That is correct.

Well, certainly, if the state were to send anybody out to the classrooms, we would not send the state auditor.

We could send somebody else out and we of course, as Your Honor indicated by questions to Mr. Greenwald, we do have a certification and accreditation system.

We do have periodic reviews of these institutions generally.

In other areas that could be done.

The Council is very much aware on a continuing basis of the nature of these institutions and would be aware of any change in emphasis.

Warren E. Burger:

You are telling us that Maryland does have a surveillance of primary and secondary schools to see whether they are teaching the minimum number of hours or reading, writing, and arithmetic, etcetera?

George A. Nilson:

That is correct and we have to be kept aware of what is going on with the private colleges all the time because we have to plan for our public colleges.

So, this information is available to us.

Again, before yielding to Mr. Connolly, I would like to reiterate that the state is attempting to administer a reasonable and realistic program.

It has demonstrated sensitivity to the First Amendment issues in its day to day administration of the program, in the adaption of the 1972 Amendments, in the adaption of the regulations. We urge this Court to let the state continue to give money to these colleges and others.

Thank you.

Warren E. Burger:

Mr. Connolly, we will not ask you to fragment your argument.

We have about one minute left.

We will let you begin at 1:00. [Lunch Break]

Mr. Connolly, you may proceed whenever you are ready.

Paul R. Connolly:

Mr. Chief Justice and may it please the Court.

The role of colleges, insofar as the future is concerned in this case, is reduced now to three.

As was disclosed this morning before lunch, Western Maryland College which was the Methodist church-related college has settled, one of the four Catholic colleges is now in the process of liquidation.

So, if we speak to the future, we have merely three appellees: Loyola College of Baltimore, Mt. St. Mary’s College of Emmitsburg, Maryland, and Notre Dame of Maryland which is predominantly a women’s college in Baltimore.

If it would please the Court, I think that the plaintiffs’ case here has two main failures.

One, his entire brief and largely his argument this morning, except in response to questions of Mr. Justice Blackmun failed to distinguish between the types of school systems who were the beneficiaries of state aid.

This Court, in the last five years, has written opinions in eight cases with respect to governmental attempts to provide aid to private school systems.

In six of those cases, it has found aid in all its forms impermissible.

Every one of those cases showed as a fact that the beneficiaries of that aid were large parochial school systems which the District Court, in dissent, so found to be an integral part of the religious mission of the Catholic Church and in nay question found that they practiced restrictions on admissions, restrictions on faculty hiring, that they were under the control of the governing Bishop of the community.

These colleges are not, these are independent schools.

They respond to no ecclesiastical authority.

The evidence is clear with respect to this.

The second thing that the plaintiffs in this case do, is they largely ignore the very detailed findings of fact which were made in the District Court.

This was not a case that come to this Court on abbreviated record.

The plaintiffs used the full panoply of the discovery powers of the Federal Rules of Civil Procedure.

Hearings were conducted over a six-week period of time.

Over 2,000 pages of testimony were taken.

Proposed findings of fact were submitted.

The District Judge assigned to gather the facts published tentative findings of fact, heard arguments again, and then made the findings of the fact which were adapted by the Three-Judge Court, including the dissenter.

So, we have had plenty of due process insofar as fact finding is concerned and if Rule 52 of the Federal Rules of Civil Procedure had any meaning, I think it should mean that these findings should be respected on appeal unless found to be clearly erroneous and I think there has been no attempt to do that before this Court or in the briefs and as Mr. Justice Brennan pointed out and Mr. Greenwald agreed with it, there was an obligation on the part of the plaintiffs to carry their burden of proof.

I think it is instructive, if we remember that this Court’s plurality opinion, which I think has become the majority opinion in Hunt, developed several criteria for testing whether or not the schools which were the beneficiaries of the federal aid program in Tilton were pervasively sectarian or had a predominant secular mission.

And these, Gentlemen, are the findings of the District Court with respect to these colleges.

One; not only has there been no showing that religion slants the conduct of classes at the defendant institutions.

This litigation has demonstrated the opposite to be true.

Two; none of these facts, respecting prayer, impairs the clear and convincing evidence that courses at each defendant institution are taught according to the academic requirements intrinsic to the subject matter and the individual teacher’s concept of professional standard.

Three; there was potent evidence, in the Court’s words, of academic secularity in the uncontroverted testimony of numerous members of the faculty of each defendant.

They feel no religious pressures by anyone.

On their classroom presentation or their selection of text and course materials, each defendant subscribes to the 1940 Statement of Principles of Academic Freedom, the American Association of University Professors, and each obviously abides by it.

Four; while the District Court did not make any finding as to the student attitude, there was no evidence to contradict the Tilton observation about the maturity and skepticism of the average college student.

Indeed, there was much testimony supported.

Paul R. Connolly:

One of the professors of theology said “the kind of questions, if you want to meet unbelievers, come and talk to my students.”

Five; the Court said thorough analysis of the student admission and recruiting criteria of each defendant demonstrates the student bodies are chosen without regard to religion.

Warren E. Burger:

Mr. Connolly, how would you interpret that response?

Unbelievers in what this particular professor’s —

Paul R. Connolly:

Question —

Warren E. Burger:

— theology was or unbelievers generally?

Paul R. Connolly:

I believe he was generally questioning everything.

He was talking about how they have a response and it is a Socratic method that they use in which the teacher poses propositions student response and he was saying that they question everything.

They bring a healthy questioning attitude and skepticism to the class, that is what he was talking about in the context and the record —

Thurgood Marshall:

As long as you have paused, Mr. Connolly, did Mr. Greenwald not said that Notre Dame had some kind of policy given to Roman Catholics?

Paul R. Connolly:

Yes, Your Honor.

Thurgood Marshall:

Is that true or false?

Paul R. Connolly:

So far as it goes, it is true.

Let me tell you about that.

First of all, it is our position that state funds cannot be used for scholarships on a religious bias.

What the evidence shows is that postulants of the teaching order and parochial school teachers are permitted to attend Notre Dame at a reduced rate.

It is not an absolute scholarship.

It is a tuition forgiveness program.

Obviously, since that is a test, whether that should be a parochial school teacher or you would be a member of the sponsoring religious group, these state funds should not be used for that purpose, and there is no evidence that that ever took place.

The only school that ever gave the scholarships was not Notre Dame of Maryland, but it was Loyola College, and there is some confusion in the plaintiffs’ brief.

If you read it too quickly you would think that the scholarship program is the scholarship program that favored members of religious groups.

That is not so.

Again, the District Court said at no defendant was there such dominance on the faculty by one religious group that hiring bias would escape the attention of members of other religious groups.

The faculty members impressed the Court as professionals who value academic freedom and see no place for religious bias in liberal arts education.

If there were an effort to stack its faculty with members of a particular religious group, it could not have escaped the attention of the present faculty who would have made a complaint to the association, local chapter of the association of university professors.

Questions were asked this morning about the composition of the faculty.

We cannot tell with respect to Mt. St. Mary’s because Mt. St. Mary’s keeps absolutely no records whatsoever that would identify the religion of its faculty members.

Loyola faculty, of its full-time faculty 60% are Catholic, and of its part time faculty 50% are Catholic, and the overall faculty average is 56%.

It is in the same range, although I am not as familiar with the figures with respect to the other college, Notre Dame.

The District Court continued with respect to these colleges, no aspect of the student conduct code at any defendant institution has any religious content.

Paul R. Connolly:

None of the defendants require attendance at any religious exercise.

Finally, that none of the defendants is religious indoctrination a substantial purpose or activity.

While each maintains a chaplaincy program which serves to encourage spiritual development of the students which is admittedly a secondary objective of this defendant has not, does not as this encouragement go beyond providing the opportunities for occasions for religious experience.

As most important information by the District Court, because the plaintiffs’ brief in this case is lauded (ph) with references that the secondary objective of these schools is to provide religious encouragement and development for these students.

My friend neglects to add the qualifying language made with the District Court, namely, that in no instance does this go beyond making religious services available to the students at their willingness to attend.

Only in one respect, if the Court please, do the District Court findings in this case depart from Tilton, and that is, with respect to the teaching of theology and religion.

In the Tilton case, there was a stipulation which I think will be impossible to be obtain in the future because the prominence that the observation was given in the Court’s opinion.

There was a stipulation that the theology courses of the four Connecticut colleges were taught as an academic discipline and not with the purpose of inculcating religious values.

No such stipulation was obtained here.

Extensive evidence was taken with respect to it.

The District Court said that it was unable to determine how theology was taught.

That determination was based on two factors.

He said he did not think it was legally permissible for him to make such a determination, perhaps referring to this Court’s prior opinion in United States versus Ballard where this Court should not interfere with theological views that are being expressed within various religious bodies.

He said he was also generally unable to make that determination.

For whatever reason, we do not know why he avoided making that finding.

Clearly, he made a specific finding that he was not making a finding that it was taught in a sectarian manner.

But having, as many District Judges do, an ability to accommodate their judgments to the practical necessities at that time, the Fact Finding Judge recommended that the Three-Jude Court ordered that theology and religion courses be carved out of the state program.

In other words, it sustained the constitutionality of the state program providing that no funds were used to support the departments of religion and theology.

Mr. Justice Rehnquist and Mr. Greenwald had a colloquy this morning about how theology can be taught academically.

It may be a difficult question.

We do not agree with the District Court’s finding in this respect, but we can live with it.

It certainly is a nice accommodation to the entanglement point.

It obviates a necessity for any class monitors sitting in a class of religion or theology if you cut theology and the religion programs out of the course, as was done in this instance.

The District Court found, as a conclusory fact, that religious indoctrination is not a purpose of these institutions.

Although each school has as a secondary purpose, the encouragement of the spiritual development of the students, at none of these schools does this encouragement go beyond providing opportunity for religious experience.

The religious programs at each school are separable from the secular programs and the latter are the only beneficiaries of state aid that led the District Court immediately to the next point of the opinion, namely, the question of entanglement.

Warren E. Burger:

Mr. Connolly, are you suggesting by your discussion of these findings, the conclusions that were drawn from, that the secondary purpose of the colleges here is essentially the same or nearly the same as the service academies of the United States government in West Point, Annapolis, and the others providing a chapel and chaplains?

Paul R. Connolly:

I certainly do, Your Honor, and I would hope that most of the private colleges of this country also have a secondary objective of improving the spiritual development of the students who attend those schools.

The question, of course, is whether it is done in an indoctrinating way, whether these institutions become pervasively religious, nothing but teaching arms of the church.

The District Court — excuse me?

Thurgood Marshall:

Chaplains of all different faiths, they do not just have one?

Paul R. Connolly:

So do these schools, Your Honor.

Thurgood Marshall:

Is that not right?

Paul R. Connolly:

Yes, Your Honor.

So do these schools.

Thurgood Marshall:

They do?

Paul R. Connolly:

Yes.

Thurgood Marshall:

Do the record show that?

Paul R. Connolly:

Yes, Your Honor.

Thurgood Marshall:

Thank you.

Paul R. Connolly:

To be honest about it, the great majority of them are Catholic.

Thurgood Marshall:

Did Notre Dame have all?

Paul R. Connolly:

I am not sure about that, Your Honor.

Thurgood Marshall:

They had to change names, would they not?

Paul R. Connolly:

I do not think so.

Loyola College, for example, has a Jewish rabbi on its theology faculty and who counsels with Jewish students.

As a matter of fact, students of one of the rabbi’s seminary attend (Inaudible).

Thurgood Marshall:

I thought it was in Baltimore?

Paul R. Connolly:

I beg you?

Thurgood Marshall:

I know a little bit about Baltimore.

Paul R. Connolly:

Yes, sir.

John Paul Stevens:

Mr. Connolly, the reference to West Point raises this question in my mind.

Do you contend that these institutions are so secular in character that the State of Maryland could pay 100% of the cost of running institution?

Paul R. Connolly:

No, Your Honor.

John Paul Stevens:

Why not?

Paul R. Connolly:

Because some of the activities, some of the funds of these schools are spent for frank religious activities.

All of them have chaplains.

Potter Stewart:

It is true, as the Chief Justice’s question has suggested it, Annapolis, West Point, and the Air Force Academy and the other places?

Paul R. Connolly:

I do not want to argue that case.

Potter Stewart:

It is factually true?

Paul R. Connolly:

That is true and it may be that someone someday will bring a case arguing that that is impermissible.

That is not my case and I do not care to take that burden at the moment.

John Paul Stevens:

Do you care to show how large the total budget of these schools is?

They get about $100,000 a year from Maryland, I gather?

Paul R. Connolly:

No, Your Honor, but we have a key.

The formula, you see, for payment to these schools is 15% of what it costs the State of Maryland to keep a full-time attendee of public school.

So, perhaps the private colleges can be operated a little more cheaply than the state schools, but that gives you at least a guide at any rate.

I was arriving at the entanglement point.

By virtue of those findings, the District Court said because of the nature of the recipient schools, there is no necessity for state officials to investigate the conduct of particular classes or educational programs to determine whether a school is attempting to indoctrinate the students under the guise of secular education.

Now that, I think, is quite obvious because you see, one of the reasons I think the plaintiffs have so acidulously avoided talking about the college system against the parochial school system is, again, the language of the District Court which said what would be impermissible at an institution staff by members of a particular faith administratively controlled by a religious body and dedicated to the inculcation of a particular faith may well be permissible in an autonomous institution staffed by faculty, hired on the basis of academic merit where academic freedom prevails and where courses are taught in accordance with the requirements of an academic discipline.

It is our submission, if the Court please, that despite the articulation by this Court of the three-part test to determine whether or not governmental aid programs may include, among their beneficiaries, church-related schools that all of them really reduce themselves to a single one.

What is the basic nature of the institution involved?

Obviously, as the questioning brought out this morning, there is a rather extensive relationship between state and schools, not only in the State of Maryland, but indeed, in every state, each of these schools must pass accreditation procedures, both for the state and by other quasi governmental bodies.

Indeed, the record shows in this very case in alluding to the prayer issue that St. Joseph’s College was actually monitored for its religious content by a state accreditation agency.

It wanted to see whether the nursing school there was sufficiently a professional to merit accreditation, and they sat in the class and noticed no religious content in the subject matter that was taught.

At any rate, there is an extensive relationship that goes on all the time between educational institution and the state agencies.

Absolutely nothing wrong with this, if these institutions are educational and not religious.

As we read this Court’s prior opinion, the excessive entanglement test is not to be applied just because an institution has some church connection.

It is an interference with the religious aspects of a church-related institution.

All of us are obviously familiar with the extensive use of Hill Burton Funds that goes to the nation’s hospitals, many of which are run by sectarian or sectarian in nature.

There is an ongoing relationship between state health authorities, state certifying authorities in that institution.

It is not the fact that the state has a contact with a religious institution.

It is whether the state has a contact with the religious aspects of that institution and as long as you have institutions as these are which are found to be psychic, which are found to have a religious dichotomy to them where their religious aspects are separable and can be perceived to be separate, then the fact that the state has some oversight with respect to them is not entanglement.

Likewise, when we —

John Paul Stevens:

Can I ask you another question?

Is there any danger in a program like this that the university or the college will curtail its religious activity in order to be sure it is eligible for the state donation?

Paul R. Connolly:

I think not and I think if Your Honor would read the testimony of the administrators and the faculty members of this school, you will see that they were churchmen and proud of it and they did not attempt at all to modify their positions and they made very clear that whatever the perception was in the past that no longer is there an attempt to inculcate religious values in the academic aspects here.

John Paul Stevens:

That cuts the other way in answer to my question.

If they are avoiding inculcating religious values in order to qualify for the funds, do you think that perhaps —

Paul R. Connolly:

No, I think you will find no inhibitions in this at all.

Paul R. Connolly:

There is one example.

John Paul Stevens:

They would run the schools precisely as they would run them were they no state program?

Paul R. Connolly:

Yes, Your Honor.

I think there is one bad example in all frankness, and that is the settlement that was made by Western Maryland.

That was what I was going to ask?

Paul R. Connolly:

That stipulation of settlement is in the Court’s records and I would invite the Court’s attention to read it.

I cannot imagine trustees entering that kind of stipulation, but they did it.

They turned over the administration of the school to the plaintiffs and that is unfortunate, but they did it but that is not a necessity, especially as long as this Court sits and could look at the record that was made in this Court and apply the principles which we say, have already been articulated in the two cases.

When we come to the question of primary effect, again, we see that the real test is the nature of the institution.

Aid really is of two kinds.

Some aid is frankly religious.

A chapel, a chaplaincy program, religious books and tracks, these schools cannot use state money for that, but neither can Johns Hopkins, or Hood, or Washington College, nor the other schools.

They must account to the state and show the state that they are not using it for that purpose.

Other aid, however, becomes religious or assumes a religious coloration only by virtue of the environment in which it is placed.

And then, when we look at the environment, if we see the environment is a predominantly secular one where the inculcation of religious values is not the purpose of the institution then, it seems to me, that the aid then becomes neutral.

Warren E. Burger:

Did anyone in this case undertake to put anything in the record by way of either contrast or comparison with the institutions like American University which is frankly and openly sponsored by the Methodist Church, but all I am aware of is not the kind of religious institution as to which public money grants are barred?

Was there anything put in the record to make these comparisons?

Paul R. Connolly:

There was a Doctor McGill who was called as a witness by the defendants who was expert educator.

He is one of the officers of the American Association of Colleges who testified to the practice of private colleges throughout the country in conducting religious programs and conducting courses in religious studies and theology.

Interestingly enough, he found that the better class schools, if you would rate them on the Carson Berimbau (ph) scale of selectivity that there is an absolute correlation really between the better schools and those that have religious studies and theology programs in them.

And, he testified that the religious programs and the courses in theology and religious studies that are taught at these schools did not differ at all from those of the great majority of American private colleges throughout the country.

This is a program that has a bit of genius in it.

Maryland has elected to give a general purpose grant program.

Of course, the grant is not general once it is issued.

The school must make application for it, must tell what it is for.

The Chief Executive Officer must take an oath that he will use it in that way and that after it is received and expended he must take an oath that it was used in that way.

The Maryland, I think, has done a better job than most.

It has not left the selectivity of aid programs to the legislature.

It has left it in terms of the ongoing dialogue which takes place between the state agency, the Council on Higher Education, and the school so that these programs can be flexible and can meet the needs of the individual schools.

The record does not show that the state has been insensitive to administering this.

Paul R. Connolly:

We now have a set of written rules and regulations which have lately been filed with the clerk by the Attorney General’s Office.

I commend it to your reading.

You see that these are simple rules, easy to administer.

One thing I think needs to be said with respect to audits.

The schools are admonished to apply what is called fund accounting.

Fund accounting is well-known to colleges and universities because colleges and universities, for years, have had to account for trust funds and for endowments.

They need to have funds earmarked for specific purposes.

The state admonishes these schools to treat the aid funds in the same way as endowment funds and to leave an audit trail so that a readily identifiable audit can be shown as the purpose for which these funds were used.

We think this is a sensible program.

It is starting.

There has been no showing of abuse.

We think it is responsible and responsive to the needs of these schools.

It does not constitute an establishment of religion.

We ask that this Court give it a chance to work.

Thank you.

Lewis F. Powell, Jr.:

Mr. Connolly, what degrees are awarded by these three colleges?

Paul R. Connolly:

Loyola College is principally an undergraduate school.

It does give doctorates, principally in education.

It has a very large evening school that trains a number of teachers of the Baltimore public school system for its Masters degree.

It also gives degrees in what it calls a special education that is studies for training people dealing with the deprived children.

Mt. St. Mary’s gives Masters degrees in the arts and sciences.

I do not think they have any doctorate programs.

Notre Dame of Maryland is primarily an undergraduate school.

Lewis F. Powell, Jr.:

Do anyone give a degree in divinity?

Paul R. Connolly:

No, and there are no majors allowed in those subjects in any of these schools.

Lewis F. Powell, Jr.:

Did Maryland have a major in religion?

Paul R. Connolly:

I cannot answer that.

Lewis F. Powell, Jr.:

Most universities do, do they not?

Paul R. Connolly:

I cannot answer it, I am sorry.

I think they do. Most of them do, but none of them have a major in these schools.

Paul R. Connolly:

None of these schools have a major in those subjects.

Thank you, Your Honor.

Warren E. Burger:

You have about one minute left, Mr. Greenwald.

Lawrence S. Greenwald:

Thank you, Mr. Chief Justice.

In that one minute, I would like to respond to a question earlier asked by the Court, that is, the number of clergy in the respective schools.

I believe the record indicates that, at Loyola, approximately 25% of the administration and faculty are clerics.

At Mt. St. Mary’s, approximately 20% of the teaching faculty are clerics in the college and 80% in the seminary.

Again, Mt. St. Mary’s College is a corporation operating both a seminary for the training of Roman Catholic priests and a liberal arts college.

In Notre Dame the figure is 50%.

St. Joseph College, the figure is approximately two-thirds of the teaching faculty.

Lewis F. Powell, Jr.:

Mr. Greenwald.

Lawrence S. Greenwald:

Yes, sir?

Lewis F. Powell, Jr.:

What percentage of the population the City of Baltimore is Catholic?

Lawrence S. Greenwald:

I cannot answer that, Your Honor.

I do not know.

I really do not know.

Lewis F. Powell, Jr.:

I will ask the same question of the State of Maryland?

Lawrence S. Greenwald:

I do not know that either, Your Honor.

Harry A. Blackmun:

Those percentages approximated some of the other percentages that had been presented here, might not that comparison have some significance?

Lawrence S. Greenwald:

Not in the context of the number of clergy which belonged to the faculty.

These percentages apply to clergy on the faculty, not to Catholics on the faculty, Your Honor.

And so —

Harry A. Blackmun:

It has some significance as compared with the religious preferences of the student body, does it not?

Lawrence S. Greenwald:

Yes, it would have.

My time has expired.

Thank you.

Warren E. Burger:

Gentlemen, the case is submitted.