Sloan v. Lemon

LOCATION:Frontiero’s Residence

DOCKET NO.: 72-459
DECIDED BY: Burger Court (1972-1975)

CITATION: 413 US 825 (1973)
ARGUED: Apr 16, 1973
DECIDED: Jun 25, 1973

Henry T. Reath – for appellant Henry E
Israel Packel – for appellant Grace Sloan, etc
Theodore R. Mann – for appellees
William B. Ball – for appellants Jose Diaz and others
William Bentley Ball –

Facts of the case


Audio Transcription for Oral Argument – April 16, 1973 in Sloan v. Lemon

Warren E. Burger:

Next in 72-459 and 620, Solan against Lemon and Crouter against Lemon.

Mr. Attorney General you may proceed whenever you are ready.

Israel Packel:

Mr. Chief Justice and may it please the Court.

I appear to make one point and I think it’s controlling point and that is, that the dominant purpose and the primary effect of the Pennsylvania Act is economic and not religious.

Of course, I realize that the case does have sociological and religious collateral effects, but I say, we essentially, we are dealing here with an economic measure by the commonwealth.

What is the economic situation that confronted Pennsylvania here?

There were several factors; first of all and I, of course, talking about education.

First of all, in our schools throughout the commonwealth and in particularly in Pennsylvania there was a serious financial situation.

I think this Court can take judicial notice of the two serious strikes that we had in the city of Philadelphia because of financial problems.

Secondly, there was a factor that 20% of the students in the Commonwealth of Pennsylvania were going to non-public schools.

Thirdly, the average annual cost for a student in a public school was at $980 per year.

Next item was the fact that many of the non public schools were threatening, there was a present danger that they were going to shift, give up their schools and the students would be all be, a great many of them would be shifted to the public school.

And the fourth significant factor is the obvious one, true in so many other states, Pennsylvania under its constitution had the duty to make provision for the education of all that is young.

Now, what to do?

How to cope with this economic situation?

The legislature came to the conclusion that the thing to be done was to offer to parents of non-public students $75 if they were in the elementary school or $150 if they were in a secondary school.

In effect, Pennsylvania was saying to these parents, look folks, if we have your students here, not only would we have a tremendous capital program which would take millions and millions of dollars to build enough schools, but if you continue to send your children to the school where you have been sending them, if you don’t switch them, we would be saving at the least $980 and to induce you to keep doing that because of the economic plate in which we all are, we will pay you the $150 or $75 per student.

It was purely this economic measure, it’s spelled out in legislation, the General Assembly made it crystal clear that this was an economic motive in which they were trying to cope with this very, very serious situation before them.

Really, I think in the analysis, you have got to consider this very high function of this Court to say that legislation of a state is unconstitutional or to be asserted only in the case where there are legitimate ends being ought to be achieved.

I can’t help, but make he analogy, it may be a little far-fetched, I am thinking of the 20s and the earlier period when we had the situation in dealing with congressional power, where the court would say, well, you may have the power, but what you are trying to do with this statute, it’s collateral effects are something different.

I am thinking for example, the Pierce and Labor (ph) case or the cases where Congress purported, attempted to regulate interstate commerce and this Court use to say, oh well, if what you are trying to accomplish, if you are trying to regulate manufacturing or if it has the effect of regulating manufacture, we don’t care even though you are asserting a power over interstate commerce.

Similarly I say here, we shouldn’t look to the collateral effect where the legislature is clearly asserting a legitimate end.

Here in the Pennsylvania legislature said, we are trying to save money so that the schools as we are trying, one will be conducted properly, sure it has a collateral effect.

It gives some benefit, but I say, look at the main object that what the legislation is trying to do and for that reason this legislation should be held constitutional.

Warren E. Burger:

Thank you Mr. Attorney General.

Mr. Ball.

William Bentley Ball:

Mr. Chief Justice, may it please the Court.

The Commonwealth, following Lemon versus Kurtzman, carefully structured the Act which you are considering today, structured it to thrive fully and faithfully to meet every standard which this Court had expressed in its various decisions under the Establishment Clause.

Why, in a effort to solve a two-fold problem which simply won’t go away.

The first part of that problem having been described by the Attorney General just now; a massive public problem which involves the total fiscal, the economic and educational crisis that the Commonwealth today does face.

William Bentley Ball:

Secondly, the severe problem of thousands of Pennsylvania individual parents, broad masses of parents and the middle income group and including the lower income parents in Pennsylvania were involved in a problem relating to law, to conscience and the family economy.

If it please the Court, I represent 12 such parents here this afternoon.

A group described in our papers as Jose Diaz et al., who last year had paid a tuition at a Protestant, a Catholic, a Jewish or a non sectarian school.

They are members of a numerous group in Pennsylvania who are in fact truly caught in a three-sided vice.

They are faced with the compulsion of law to begin with, they are faced with the fact that the under criminal sanction of Pennsylvania compulsory attendance law requires them to have their children in some school, which meets reasonable state requirements.

They are also under legal compulsion of course to do what they have always been doing, they are all tax payers and paying their public school tax.

They also face a compulsion for conscience which impels them to seek other education for their children and thirdly, they are faced with the twin effects which we hardly need to describe further today of inflation and taxation.

Now, how does Act 92 seek to remedy this problem?

It does it by giving un-earmarked payments to people whom the legislature determine to have special need because they carry a special burden.

The proof of that burden, the General Assembly found to be best selected proof of their carrying of this burden is the fact that they had in fact paid a tuition at a non-public school, the year past.

Now court below looked at the statute and found it unconstitutional.

The court below said that this statute, first of all it said, it had a secular legislative purpose and that wins the court’s tests.

It then looked at the entanglement problem and found no kind of entanglement whatever to be involved in this statute.

What it did at least grope at the idea that the statute has a primary effective advancing religion.

I say that the court groped at it because as you read the opinion, you find that it’s hard to point it right down where you find the court truly talking about primacy or principle character of the fact and advancing religion rather than having possibly a relationship to religion.

At any rate, the court plays what we will be willing to call the failure of the act to meet the primary effect test on three different arguments.

The first that the parents were merely a conduit under the Act that they are merely a conduit under the Act for the payment of public funds to nonpublic schools.

Secondly, it was possible and quite likely that the parents were going to use the money they got under these payments in the future, fourth payments, to sectarian schools.

Thirdly, the court pointed out and this is not in its opinion, but appears in its order, its final order, at page 53 A of the Appendix, pointed out that or stated that 90% of the children attending nonpublic schools in Pennsylvania are enrolled in schools for which are religious in character.

There was no record evidence of this, but this was the court’s reasoning.

As to the conduit argument, here the court immediately invoked as did Mr. (Inaudible) this morning to which it grant cases from the Southern states Allen versus Day (ph) and so on and equated the arrangement provided by the Act with the situation found in those cases.

The handling to a parent of a check which would be negotiable only at an institution or the providing of a parent with a voucher which he could then could take an exchange for education at an institution.

None of these techniques appear in this Act.

There was no such provision under Act 92.

There is no condition whatever attached to payment under this Act.

The money thus, in fact, in legal fact, become that of the parent.

It’s subject to his own limited power of disposal.

The money becomes his private money and regardless of what hopes the state public policy has as to how he may relieve the education prices, in expending this tuition, the very legal fact of the act is that he may use it for education or he may not.

He need not under the terms of the Act use it for education.

No institution and I want to underscore this to Your Honors, no institution has a breadth of legal claim, right title or interest in one set of the money in question.

William Bentley Ball:

Now the court almost as though it felt it couldn’t make, they conduit argument stick, invented then an amazingly vague standard for constitutional adjudication.

In its rule of possible and quite likely, the court said this that the Act offended the Establishment Clause and now I quote “A possible and quite likely use of the aid under review is to enable parents to continue to pay tuition at sectarian schools.”

This rule has no foundation in decisions of this Court.

It’s guess work perhaps it’s intelligent guess work, but it is that.

It certainly does not measure up to and is not synonymous with or any privilege of the clear standard which this Court stated it when it said that to meet the strictures of the Establishment Clause it must be shown that an enactment does not have a primary effect advancing religion.

Thirdly, on the matter of 90%.

I mentioned to the Court that there was no record of evidence at all on the 90% figure respecting children.

However, it also must be considered that these payments go to individuals and the law controls or conditions no man’s choice under this Act, the choice of no parent.

Thirdly, if one is to take play the percentage game, I think we begin when it’s like problem which have possibly not been foreseen.

If one would have make a head count with respect to who is getting certain welfare benefits or who is benefiting under an Anti-Poverty Program and then determined as a result of that head count that the people who were beneficiaries were 90% lax, would this make this class legislation.

We have just enacted a perfectly splendid program, and immensely humane program for relief, of relief through expenditure of some $135 million of tax payer’s money for resettlement in Israel of Jewish refugees from religious persecution in the Soviet Union.

Undoubtedly, 90% of these individuals are of a single religious faith.

Certainly, this cannot be taken as a standard for invalidating any such program.

What we have here and we believe is a measure which in no ways offends the Establishment Clause.

We have, however, raised the affirmative defenses as Your Honors have doubtless noted in our brief and from the record.

The parents in this case, have raised affirmative defenses of Equal Protection which I should like briefly to comment upon.

I should point out at the offset that we are not here arguing the proposition which was argued for in Brusca, the case to which Mr. Pfeffer referred this morning, where parents of nonpublic school, children asserted that they had a constitutional right to participate in public funds, a right to have these funds devoted to nonpublic education.

Rather here a statute exists and that statute bears un-earmarked assistance benefits to a classic parents rationally determined and without conditions attached.

I would like to talk first of all about parents who are described in the papers, and in our briefs, as the Watson parents.

Mr. & Mrs. Watson have a daughter Ellen who attends Baldwin School, a nonsectarian school in Pennsylvania.

They are express beneficiaries of this Act.

They are parents of nonpublic school children and nonpublic school is clearly defined in the Act in a measure and in a way that includes a nonsectarian nonpublic schools.

They cannot have an establishment problem.

There is no way that they can have an establishment problem.

They moved for summary judgment in the lower court and the court denied their motion on a peculiar ground that although they were — had been granted intervention as a right.

Court’s reasoning was they — that the plaintiff’s had sought no relief against them.

Later the order of the court was to state that 90% of the beneficiaries of this Act being the parents of children attending sectarian schools, they “undoubtedly by that sought provide another means for denying these individuals, the benefits of the Act.”

It’s perfectly clear that to cut the Watsons out of the Act underground that they are minority beneficiaries under the court’s reasoning would certainly be a denial of equal protection.

To say that they were not intended beneficiaries of the Act directly conflicts with what the legislature itself said in its definition, a parents of nonpublic schools.

The second group of beneficiaries under this Act we’re here to speak for today, are Mr. & Mrs. Jose Diaz, who have a boy Jose junior in St. Peter Apostle School in Philadelphia, Mr. & Mrs. Kurtzman whose daughter, Debbi, attends redeemer — attended Redeemer Lutheran School and he is now attending public school.

William Bentley Ball:

Here incidentally, may it please the Court, is an example of the parent who is eligible today for the benefit of the Act on account of the fact that he had, had, these parents had had their children, they had paid a tuition for their children in a school, in a sectarian school.

Now they have elected high school time as coming, they are electing to send these children — this child to a public school.

Another pair of parents are Mr. & Mrs. Zorbits (ph) who have their daughter Roselleth at Jacob’s school.

Now these people have been told by the court that they may not participate in the benefits of this Act.

The court below said that these latter parents cannot be paid because of two things.

First of all they had antecedently paid out of their own pockets, money for tuition last year.

Secondly, the court thinks it’s likely possible and quite likely that in another year, they will pay another tuition to maintain that child in a sectarian school even though, as we have said the payment of that subsequent tuition is absolutely, certainly a payment of out of private money.

Therefore, the court has said that these parents must be excluded from a public welfare benefit, because of what?

Because they exercised an act of the will whereby yesterday they spent their own money, their own private money because of their religion and tomorrow for the same reason, they may again expend their private money.

A person certainly may not be excluded from a program of public welfare benefits because of his race, because of alienage or because he has done something which is nothing other than an exercise of religious choice.

Finally may it please the Court, the appellees have devoted some time and much bigger in speaking of political entanglement with respect to this Act.

We have pointed out in our brief this Act is self executing, paid for out of the cigarette tax.

There is no record.

The court below in no way discussed any such issue and there is no record whatsoever of any evidence at all at the plaintiff sought to introduce below on this issue, referring conceivably to leave the matter to supposition to guesswork.

In conclusion, may I say to the Court that a secular need of the nation is today in a growingly socialized society for people to be reasonably enabled to follow conscientious choices, nowhere is this more important than with respect to education, especially under this Act where it is possible that a such choice may help some parents to rear their children in the traditions of civility, non-violence, decency and morality as I like to put.

Warren E. Burger:

Thank you Mr. Ball.

Mr. Reath.

Henry T. Reath:

Mr. Chief Justice and may it please the Court.

I appear here today on behalf of one parent with children in nonpublic schools, private independent schools.

I am also counsel for the Pennsylvania Association of Independent Schools and in essence I speak really on behalf of all of the parents of the children attending nonpublic schools within the Commonwealth of Pennsylvania.

I think that at the outset it is important to notice the tremendous diversity of interests that had shown their unqualified support for this Pennsylvania Act.

For example, we have filed in this case or in the court below, amicus briefs filed by Solicitor General on behalf of the Federal Government, a very strong brief filed by the Commonwealth of Pennsylvania on behalf of the people of Pennsylvania.

There is an exceptionally strong brief filed by the city solicitor on behalf of the city of Philadelphia and it’s financially beleaguered school district.

There is a brief that has been filed by the National Association of Independent Schools supporting 100% this Act.

There is also amicus brief that was filed in the court below by the Pennsylvania Association of Independent Schools and finally and I think most significantly, Your Honors, will see attached to our brief, a copy of the amicus brief filed in the court below by the Benjamin Banneker Preschool, which is a school in a prominently urban ghetto district of Philadelphia and it is a school which depends almost entirely upon individual tuitions and because all of the students attending that school are eligible, they too have joined in.

Thurgood Marshall:

You want us to count these up and decide on plurality?[Laughter]

Henry T. Reath:

No sir, not at all, Mr. Justice Marshall.

I think the only point that I want to mention is that this — that the effect of this Act is to cover every segment of education in Pennsylvania and in no way could it be said, that it either its purpose or effect was designed solely for religious or secular schools.

Now if Your Honors please, I would like to respectfully state to the Court that if this Court affirms the rationale, if this Court affirms of the rationale of the lower court in holding Pennsylvania Act 92 unconstitutional then you have to invalidate every major piece of federal and most state legislations, including the GI Bill and it successor whereby grants or low interest loans with liberal forgiveness provisions are given to college and post graduate students.

For example, under the 1958 National Defense Student Loan Program Act has greatly expanded by the Higher Education Act of 1965.

Henry T. Reath:

There is presently in excess of one billion dollars being paid out to several million students of college age attending higher education and postgraduate work.

But these Acts if Your Honor’s please, as is the case with the Pennsylvania Act which was stricken, and for the reason that the Pennsylvania Act was stricken, do not place any restriction whatsoever to ensure that the funds are restricted and here I quote the language of the lower court, “To secular education or general welfare services.”

As a matter of fact it would even invalidate an Act which is in been in effect for the last 25 years whereby the Congress authorizes pages in this very Court to receive a private education, nonpublic education at a private or parochial school of their choice.

And there is absolutely of course, in that Act not only not a restriction, but a recognition that as long as the money goes to the child or to the parent and the parent is the one who controls the choice of school that does not constitute any Act of the state or the Federal Government involved in advancing religion, but to the contrary it is the traditional role of the state or Federal government being absolutely neutral.

Now in this case Your Honors, there were three points that the lower court made that were absolutely wrong and show how totally in err they were in offsetting this Act.

The first of course, is the failure to restrict to sectarian education, a concept that this Court has never accepted and I would hope that the Court never would with the frightful consequences that would flow as a result of such a narrow interpretation.

The second had to do with the so called Conduit Theory.

What the court said was well, it does not really make any difference.

When you pay the money to the parent you really are giving it to the school and why try to say that there is any essential difference or distinction.

And then finally as Mr. Ball pointed out, what the court tried to do was to buoy up the weakness of the other two arguments to say well, anyhow we find that the effect of this Act, even though, the purpose is secular in nature to advance education, that the effect of the Act is to aid and advance religion because we find as a matter of judicial notice that 90% of the children who might be benefited are attending parochial schools.

Now as far as the — I think and here is the point that I want to make as emphatically Your Honors as I possibly can, that where the court fail into the error of its ways in the lower court was it totally and completely misunderstood the problem facing this Court in Lemon and Tilton and Di Sanzo (ph), where the court was trying to experiment or trying to find the outer and the inner limits of how you could pay money directly to an institution, directly to an institution.

That was the problem in Tilton that Mr. Chief Justice had to resolve.

That was the problem in Lemon and Kurtzman.

The funds were paid to the institution.

It was the institution that had the control of the funds and not the parent.

Now in order to cope with that problem, in order to face up to that situation, the court in Tilton quite properly said, if you are going to pay funds to an institution we want some safeguards and those safeguards were at this probation against religious use.

Now as far as the Conduit Theory.

The conduit what they say is that it makes no difference.

It is a distinction without a difference and we say to Your Honors it is a distinction which makes all the difference because when you pay the money to the parent, the parent becomes the wall of separation between Church and state.

The recipient institution who may ultimately benefit, of course, they will indirectly benefit from this tuition program in a sense, but they have no call on the funds.

There is no way that they can ensure year after year they are going to get the funds.

That isn’t true where you have payments direct made directly to the institution.

Secondly the state has no control over the use of the funds.

Now, I would like, if I may, to read to the court one statement that was made by Kingman Brewster in a Report of the President, at the Yale University in 1970 because I think it illustrates the very basic and fundamental difference whether you are dealing in secondary education or in higher education, between payment to the parent and payment to the institution and here is what Mr. Brewster said, talking about the plight of higher education.

“The only other prospect for a new trigatory to fee Yale’s income stream would be the introduction of some massive program of federal assistance.

If this took the form of assisting students, either with grants or with a guarantee of their postponed tuition payments, it would be quite consistent with the university’s freedom and autonomy.

If on the other hand, new federal subvention were to take the form of direct block grants to the institution, there would be serious worries about the dependents upon political favor which this would entail.

If federal assistance became built into Yale’s budget, we might find ourselves in a terrible bind if they shift the national priorities cut off the pipeline.

More serious would be the temptation of some future Congress to attach strings and conditions to such grants.

Future legislators might seek to bend or work, if not direct our educational research or admissions policy.”

Henry T. Reath:

And to the same effect is a statement made by William Bowen, now President of Princeton University in which he said exactly the same thing, highlighting the essential distinction between payment to the parent and payment to an institution.

Indeed, one of the great advantages of channeling funds for higher education through the student is that this minimizes the danger of political control of higher education.

Now in addition to the practical considerations, Your Honors, there are two very significant and major constitutional differences where the money is paid to the parent, rather than to the institution.

One of them is illustrated by the Judd case which is cited by Mr. Mann in his brief because he says there that it doesn’t make any difference, whether it’s a direct or an indirect payment.

Well, it makes a tremendous difference because in the Judd case, which interestingly enough was decided 8 years before Everson and it had to do with whether or not the state of New York will provide a bussing for parents.

There the Court held that there was an indirect benefit and if you were dealing with an indirect benefit and that, that was a specific violation of a very specific provision in the New York State Constitution which under Section 4, Article 9 of the Constitution says, that you may not use public funds to be used directly or indirectly in aid or maintenance, other than for etcetera — for an educational institution that teaches a specific religious doctrine.

Then and I don’t have time to read it to you, Your Honors, now but I would ask you to make note of a the Court’s, at page 212 of the Court’s decision in this regard where the Court pointed out that the reason that the reason that there was such a difference — that there was no difference between a direct and indirect was because the statue specifically said, direct or indirect.

That clearly as Your Honors know is not the test that this Court has decided in the Everson, in Allen and in Tilton.

The mere fact that the religious institution may benefit indirectly does not constitute a violation of the Establishment Clause.

Now the other constitutional difference and this is referred to in my brief and I won’t have time to develop it extensively before the Court, but it’s in our brief at page 32, the other significant constitutional difference, when you pay money to the parent, is that when the parent gets this money, I submit to Your Honors, that at that point he is free from any further inquiry by the state, by the court or any other body as to what he does with it and what are or are not the religious practices of the school to which he elects to send his children.

This is under the very same First Amendment rights and the other rights that this Court has found such as the right of privacy, which was discussed in a Roe v. Wade and other cases, where the Court has said that you are free from inquiry and if you are free from inquiry, you cannot trace and attempt to trace the funds from the parent into any religious institution.

And therein you see lies the error of the ways of the lower court because what the lower court did, they were faced with this problem as we pointed out in our brief early in the pleadings, but they ultimately swept the problem under the rug and in the final decision of the court they said, well, we find as a practical matter that 90% of the parents who are benefiter children who are going to religious schools, but you cannot, where the money is paid to the parent I suggest, you cannot make any determination of what happens thereafter.

You cannot make any determination to trying to trace the religious or non-religious use and if you can’t do that and that then brings me, if Your Honors please, to the last point that I want to make.

It has to do with the whole question of burden of proof.

This Court has said time and time again that a party coming in to this Court or the federal court, to ask this Court the extraordinary — to use the extraordinary powers it has of declaring state action unconstitutional must carry the burden and he must establish those facts on the record to show that there is a religious effect, for example, in this case.

Secondly, this Court has said over and over again that there is a very heavy presumption of constitutionality to state action and the Court will only overrule state action, will reverse state action in the very clearest of cases.

And finally, this Court, Mr. Justice Powell will know very well of what I speak, in the Court’s opinion in the Rodriguez case and as reaffirmed as lately as a in Lemon and Sloane II where the Court again pointed out that the reluctance of this Court in a federal system to substitute it’s judgment or to interfere with, the delicate and complex problems of social and educational policy that are involved in this whole question of whether you are going to support pluralism in education or whether you are going to have a single own bracing monolithic public system.

Now I would be the first to admit that there are good, sound arguments to be made for both.

It happens, however, that Pennsylvania has made a commitment to pluralism, and one which I happily endorse and applaud, but the fact to the matter is that I think that that is a matter for the individual sovereign states and if there is any doubt as to the will and desire of the sovereign states, I would ask Your Honors to take a look, when you review this case further, it – exhibit C of our brief, where we have attached a list of the different ways in which the several states have attempted to make their major commitment to pluralism in education.

I would like to close my remarks, if I may, by reading several lines from the brief of the National Association of Independent Schools which I think speaks as eloquently to this whole problem as any language that has been set down on paper to date and it as follow.

“To say as some critics do and without a shred of evidence to support it, that the parent acts as a mere conduit to the school is to denegrade the very stuff of which this country’s greatness was made and to undermine the rock upon which our Constitution and Bill of Rights is grounded; personal freedom and the right of each individual to make his own free choice.

Where the parent is a recipient of state A, he alone decides how and where the funds are applied and thus, effectively cuts off state control or participation thereby, enabling the state to aid it’s legitimate interests in secular education and at the same time to preserve in the words of the Chief Justice’s disparate of the naval neutrality which will neither advance nor inhibit religion.

This is in the best tradition of a country that treasures it’s private institutions and the freedom and rights of individuals far from offending the constitution to wish an aid to parent supports and reinforces the very principles the Constitution was designed to protect.

We ask this Court to reverse the lower court and to find that this is a lawful exercise of the state’s concern with preserving pluralism in education and define that the Pennsylvania Act 1992 apparent reimbursement is in every sense constitutional.

Thank you Your Honor.

Potter Stewart:

Mr. Reath, before you sit down, you know, worded to what’s the difference between this case and Wolman against Essex, there was a firm that’s involved?

Henry T. Reath:

There are several very fundamental differences.

I think the most important, Your Honor is that this Bill as has been pointed out previously is self-executing.

Potter Stewart:

Because it is 23% of cigarette tax, right?

Henry T. Reath:

Yes sir.

Potter Stewart:

It doesn’t require appropriation?

Henry T. Reath:

That is correct.

Potter Stewart:

What else — anything else?

Henry T. Reath:

Well, there are other differences in the structure of the Act.

In Wolman it was part of a total educational appropriation which I guess comes back to the same point of one year and I confess that I am not familiar, Your Honor, with the intimate workings of the Ohio case, but I think that essentially that is the basis that Ohio was turned down the lower court was on the concept of entanglement.

Potter Stewart:

And devise a —

Henry T. Reath:

Devise and here that has been completely eliminated.

Potter Stewart:

Okay thank you.

Lewis F. Powell, Jr.:

Mr Reath.

Henry T. Reath:

Yes sir.

Lewis F. Powell, Jr.:

A Statement from Mr. Brewster which you read in the papers filed with the court —

Henry T. Reath:

My closing statement?

Lewis F. Powell, Jr.:

It’s the one – no, the statement you read from the President of Yale, Mr Kingman Brewster.

Henry T. Reath:

No sir, it is not.

It was in the record below and I read it at the time of oral argument.

I have the copy and I would be happy to furnish the full statement to the Court if that was desired.

Byron R. White:

Well if the statement wasn’t in the records below, the record is clear then?

Henry T. Reath:

But it was read.

I mean, the document itself wasn’t offered, but it was read and used in the oral argument below.

Potter Stewart:

Was that in his annual report?

Henry T. Reath:

It was in the —

Potter Stewart:

President’s annual report?

Henry T. Reath:

Yes sir, it was in the President’s annual report for the — the report of the President of Yale University for 1970-71.

Potter Stewart:


Henry T. Reath:

Thank you Your Honors.

Warren E. Burger:

Mr. Reath.

Mr. Mann.

Theodore R. Mann:

Mr. Chief Justice, may it please the Court.

May I first express my deep appreciation to the Court for having found sufficient play in the joints of the First Amendment to have accommodated the religious sensibilities of several of us by extending argument to 3:30 today, which I trust is not a violation of the law between separation in church and state and I will try to repay that kindness by taking considerably less than my full time.

If it please the Court, it is our judgment the Act 92 is unconstitutional in purpose, in effect and because of the political divisiveness that it causes.

Theodore R. Mann:

Very briefly, it’s our judgment that it passes none of the standards that the Court has recently set forth.

I will take just a moment on purpose.

I am of course well aware that this Court in the last 11 Pennsylvania case found that the legislative purpose must be accorded appropriate deference, but I call to the Court’s attention that the legislative purpose in the last Pennsylvania statue, a statute whereby secular, educational services were being purchased by the state was to enhance and “the quality of the secular eduction in all schools covered by the compulsory attendance law.“

Now clearly the state has a comprehensive and pervasive interest in advancing the quality of secular eduction in all schools and that is clearly a legitimate public purpose.

It’s not the same purpose.

It’s nothing like the purpose set forth in Act 92.

Act 92 purports to have several purposes.

Several that are secular and one that is clearly not and several that are secular or foresees that it aims to make sure that our public school classrooms do not get too overcrowded and that is an obviously appropriate purpose.

It aims to keep a large tax load and additional tax load off the back of the public in Pennsylvania and that is obviously a legitimate purpose.

But it means to do this and I read sirs from the legislative findings.

And what they say essentially is that should parents of children now enrolled in non public schools be forced by economic circumstances to transfer any substantial number of their children to public schools.

It would be an enormous additional burden to the tax payer wherefore that in order to reimburse parents partially for this service so vitally needed by the Commonwealth, this Act is passed.

What is this service so vitally needed by the commonwealth?

It is the service “performed by parents in sending their children to non public schools which in the Maine and Pennsylvania are sectarian schools.”

So that the state through the payment of money undertakes and in the purpose sets forth that that’s what it’s intention is.

Undertakes to encourage parents to keep their children in the parochial school so that they will not overcrowd the public schools and I submit that in the evolving standards and this Court has said recently that these standards are evolving, that this Court might now adopt the definition of primary purpose used by Justice Frankfurter concurring with Justice Harlan in the McGowan case and what he said there was that if the primary end achieved by a form of regulation is the affirmation or promotion of religious doctrine, primary in the sense that all secular ends which it purportedly serves are derivative from and not wholly independent of the advancement of religion, then the regulation is beyond the power of the state and I submit that whatever proper secular purposes are found in the legislative findings are entirely derivative from the improper sectarian purpose set forth in the legislative findings to which I have referred.

And of course to the second portion of our argument, we say that this legislation is unconstitutional in effect.

First of all because to the extent that it effectuates its invalid purpose of course it’s unconstitutional.

Appellants argue and all of them have argued that since the money does not go to the school treasury, but rather to the parents that this makes a difference and we hold with Professor Freund when he said, “The sharp dichotomy between pupil benefit and benefit to the school seems to me a chimerical constitutional criteria and chimerical indeed because the question of whether the money goes to the church or to the parent should not be and I don’t even has been the focal point of inquiry when what we are trying to find out is whether a legislative scheme has a primary effective advancing religion.”

Religion not a church and the First Amendment talks about religion not a church.

Of course —

Thurgood Marshall:

What about the Everson case?

Theodore R. Mann:

The Everson case sir is probably the only exception to the analysis I was about to make.

Thurgood Marshall:


Go ahead and make it.

Theodore R. Mann:

And with Your Honors’ permissions because I think it’s quite distinguishable, that in Tilton versus Richardson of course, this Court made clear to all of us that indeed a state can provide money directly to a church institution, so provided that the propose is proper.

In the end to determine whether the primary effect of a law advances religion, what must be examined is the character of the aided activity, that’s what the lower court said and that’s what this Court has said in the past that if we examine the character of the aided activity in the recent cases decided by this Court, whether it is secular text books you know provided to parochial school or adding, giving 15% salary supplement to secular teachers in religious schools or whether the state is purchasing secular subjects in Math and science and foreign language from the Parochial schools, in every case except for Everson, which I will come to in just a moment, in every case the character of the aided activity is primary secular education.

In every case the character of the aided activity is ideologically neutral.

Here what we are dealing with is a legislative scheme which is reimbursing general tuition to parochial education and I don’t see how we can argue with the point that the character of the aided activity is parochial eduction which this Court has defined0 in Lemon the sense of this Court said the various characteristics of the schools make them a powerful vehicle for transmitting the catholic faith to the next generation in the case of Jewish Parochial schools or Lutheran Parochial schools, the identical thing could be said and the Court went on to say, “in short parochial schools involve substantial religious activity and purpose.”

So that the point of the matter is that the character of the aided activity under Act 92 is religious activity and therefore it is invalid.

Theodore R. Mann:

The only exception I think to that kind of analysis is Everson, because I think in Everson although the bus ride is ideologically neutral, it can I think more accurately be said that the effect of reimbursing parents for transporting their children to parochial schools comes closer to being the primary effect which aids religion in any of these other more recent cases that I noted.

But Everson is distinguishable not only because the bus ride is non ideological, it’s distinguishable too because there is a very finite point, a bus ride in terms of a parochial school’s budget can never account for more than a small fraction and if the legislative scheme is played out to the end, it has — it comes to an end and it comes to an end early.

When we are talking about reimbursing tuition, we are talking about reimbursing the total cost really of operating the parochial school.

There is no end, if this act constitutional then why not five times the amount.

But the — let me just close this portion of the argument by saying that it’s clear to me that the state has no more power to help a parent give his child a sectarian education than it has to give — to help a church give the children of its parishioners a parochial education because it’s not a church which the First Amendment forbids from being aided its religion.

Warren E. Burger:

But now in Everson and in Allen, did the Court not say explicitly that the fact that the program, books in one case, bus rides in the other, encourages more people to send their children to a church related school or private school is not controlling?

Theodore R. Mann:

Yes they did and I think the Court was absolutely correct.

If a legislative scheme has an incidental effect, such as Your Honor has described, that in itself is, I think what we are really dealing with is the definition of primary effect.

The primary purpose of this legislation, however, is to achieve all of its ends through purposely encouraging as many as parents as possible to keep all of their children in the parochial schools, that’s a far cry from saying, well, just because a piece of legislation might have an incidental effect of encouraging somebody.

Warren E. Burger:

Well, the Attorney General course put it a little different perhaps not as roughly as I am about to restate it, but it was to keep as many as possible of the children out of the overcrowded public schools?

Theodore R. Mann:

I think it’s two sides of the same coin.

I must say, the statistics I read don’t, I think indicate that the overcrowded conditions of the public schools are improving quite their own with that respect of this problem in the last several years, but I think they are two sides of the same coin.

What the legislature is trying to do is not get the schools overcrowded like encouraging, purposely encouraging parents, not incidentally, purposely that’s on bases of the scheme to give their kids, continue to give their kids a sectarian education and if that isn’t violative of the First Amendment, I don’t know what is?

William H. Rehnquist:

But can’t you equally say that the purpose is to continue to give the kids a private, non-public education rather than a sectarian education.

Since I think it isn’t dependent on sectarian to get this reimbursement?

Theodore R. Mann:

Yes the matter of fact it’s true that the states — if a 100% of the children went to non-sectarian private schools, the state’s purpose would be accomplished in the same way, that is absolutely correct sir.

Warren E. Burger:

But it have to be 100% to say that that was a valid state purpose?

Theodore R. Mann:

Well, I am sorry I didn’t hear that?

Warren E. Burger:

Would they need to — would it need to effect a 100% of this 20%.

20% of these children are in non-public school.

Now, must the program in order to pass muster on your view cover all of the 20%?

What if half, that is 10% were in private secular schools and half in sectarian schools?

Theodore R. Mann:

In terms of whether it passes constitutional muster on the primary effect test, I don’t think it makes any difference whether 50% of the kids are going to private non-sectarian and 50% to private sectarian or whatever the percentage is, I don’t think it makes any difference.

In terms of passing constitutional muster on the third test that has been announced by the Court, the question of political divisiveness which I will come to in a few moments, I think it makes all of the difference in the world.

One of the arguments that Mr. Ball has made is that — all of the appellants have made and we have heard it all day to day is that there are some how a difference here because the parents are getting the money at the end of the school year and they may spend it for a vacation or for a down payment on a car anyway they want and it’s just like another, so the argument goes it’s just like any other general purpose, general welfare legislation.

And I want to address myself to that directory, before I do I want to address my self to it factually because I believe it is factually incorrect, although none of us, myself included have made this point in our briefs.

This is not a true Tuition Reimbursement Law.

If Your Honors will look the appendix, pages 60-61, which contains the Act, it says that to become eligible, to receive this reimbursement, $150 for a high School child, $75 for an elementary school child, the parent must produce and show to the authority a receipted tuition bill or a copy of an executed contract, under which the student attended the public — non-public school and in the next paragraph when it talks about receiving the money, the amount a parent receives, apparently receives the less of $150 or “the actual amount of tuition paid or contracted to be paid by a parent.”

So let’s understand the legislative scheme.

It is not at all necessary for a parent to have paid this tuition and then at the end of the year get it back from the state.

Theodore R. Mann:

The parent need only execute a contract at the begging of the school year, at the end of the school year, he must only show the contract and upon showing the contract, he gets his $150 and he may or may not, pay is overdue tuition bill, but I wouldn’t want this case to go off on factual difference.

But I wanted to make the point, because it seem clear to me that even this was true tuition reimbursement bill, it isn’t so much the receipt of money by your parent or last year’s attendance, which encourages that parent to send us child to parochial school next year.

Indeed in the case of a high school senior at a parochial school that’s not so at all.

The parent gets the money for the 12th grade at the end of 12th grade and he is not going to use the parochial education of his child.

It seems to me that, that’s not pertinent.

It is in fact a promise of reimbursement made by the state at the beginning of the school year when the parent is deciding whether to go to a — send his child to a public or parochial school, it’s through that promise, the statutory promise by which Pennsylvania is encouraging parents to send or to continue to send their children to non-public schools which in the Maine and Pennsylvania are sectarians schools.

This is nothing like General Welfare Legislation.

Of course, of the recipient of a social security to check and decide to use it send his grandchild to parochial school.

The recipient of an employment compensation check can turn it over to his parish priest.

Byron R. White:

So your argument — what you are saying is if Pennsylvania said, we will give you half of your tuition, but never anymore?

Theodore R. Mann:

Yes sir, by all means, by all means.

Byron R. White:

Although you to the extent that his entire duration is paid, you say necessarily then the state is financing that part of the education that, that is religious also?

Theodore R. Mann:

Well, clearly here we have the state may be paying the entire tuition because if it’s less than a 150 – the entire tuition is a $150, the child gets a $150.

I understood Your Honor to be asking the question what if the statute said, never more than half the tuition and made a legislative finding that at least half of the budget of the parochial school is spent for secular educational parochial.

Byron R. White:

Your argument remains much the same?

Theodore R. Mann:

My argument remain the same, yes sir.

Warren E. Burger:

And your constitutional argument would be the same as it was $10?

Theodore R. Mann:

Yes, sir it makes no difference at all.

Warren E. Burger:

Then the difference is in Everson case and the Allen case, text books and buses, what about that?

Theodore R. Mann:

I am not —

Byron R. White:

Well, than you are to go with Everson, don’t you?

Theodore R. Mann:

Well, I don’t know that I am so much in trouble [Laughter] as you know any attempt sir, it will take all of the Court’s previous decisions and apply them in a symmetrical way to every church state case that comes before the Court, is going to meet with some trouble and I will grant Justice White that, but I think the Everson case gives me some problems, it gave the Court problems and as I understand it some of those who voted in favor of it that now sit on this Court have indicated if they had to do it over again, they wouldn’t.

Point of the matter of course is that Your Honor, Mr. Chief Justice Burger in the Lemon dissent so case said that, Everson, a decision which was thought to take us to the verge of constitutional permissibility really began us what might be a downhill thrust and as I understood that context in which Your Honor, Mr. Chief Justice was talking in that case, it was an effort to say, we got to be careful in each decision as to where it’s going to lead us.

In Everson, I think led the Court, led the society into a great many legislative schemes that have had to pass constitutional muster or fail to pass constitutional muster before this Court before.

I was making the point just a moment ago that the difference between the fellow who gets his unemployment compensation check and turns it over to his church and the parent who gets reimbursement here is that that fellow who gets his unemployment compensation check didn’t get it because he performed some religious act or did something that advanced religion.

He got it for entirely different reasons and he is free to use as he will, but Judge Lord in the lower court here I think was precisely correct when he defined this issue by saying, “it is whether individuals may receive state funds solely because they have paid tuition at a church related school.”

If I may paraphrase what the Court said in Lemon dissent sir.

“If Rhode Island may not supplement teachers’ salaries without being certain that those teachers do not teach religion then it seems to me a fortiori that Pennsylvania may not reimburse tuition to parochial school parents when they are absolutely certain that, that tuition is being used to advance or teach religion.

Warren E. Burger:

What about a returning veteran who has not had a high school education and goes to a Catholic high school at age 18?

Theodore R. Mann:

What I reminded of sir is some of the Court’s opinions or concurring opinions or dissenting opinions, I do not remember now which, years ago we used to cite Bible reading in the public schools which had not yet been declared unconstitutional as saying well how about Bible reading of the public schools.

Theodore R. Mann:

We have been doing back for a years, so it does not it justify the next process and of course when Bible reading in the public schools finally came before the Court it was unanimously declared unconstitutional.

I only make that point to say that I do not believe that the GI Bill of Rights, has ever come before this or any other Court on First Amendment grounds.

I am not suggesting which way it should go if it should come here and I hope it does not come here, but it seems to me that and by the way that is saying something significant too.

I think that since the GI Bill has been in affect for so many, many, many years and nobody has ever challenged it, indicates that it’s something that the society has fully accepted and will not and would never caused the political divisiveness that some other types of legislation will, such as this.

It seems to me that to take, there are distinctions of course, but to take the kind of statute that a nation passes after a war in which it feels it owe so much to those people who fought the war for them and say we are going to repay this by making your education possible, here is the money, spend it anyway you will, but for education per se, it seems to me that, that is not precedent for anything that we have before for anything that we have before the Court today.

I mentioned a moment ago, well, I have reach the point in my argument and if I may, it is the last point in my argument, it is political entanglement and I want to spend a few moments on it with the Court’s permission and I will close.

If this legislation were validated, it seems to me that all of that fears expressed by the founding fathers and Justices of this Court Justice after Justice of divisiveness along religious lines, sect again sect, each sect attempting to use whatever political muscle it can garner to get its fair share of the pie, deal making between sects in order to get that muscle, all of those spheres it seems to me realistically would spring back to life again.

And our political process would be corrupted and I submit our religions would be demeaned.

Mr. Ball has said in his reply brief that that is a constitutionally malevolent argument that to permit blacks and other groups within the society to seek financial aid of various sorts for various reasons but not permit Parochial school advocates to do the same thing is constitutionally malevolent.

And I suppose that it’s true that every effort by any group in the society to attain funding is opposed in a society as large as ours by some other group and to that degree it’s of course divisive, but Mr. Chief Justice Berger made it abundantly clear in Lemon dissent so that the attempt to obtain funding for religious purposes has always been meaner, has always been divisive and is likely to strain a society like ours to the breaking point and that is why in Schempp this Court said the very purpose of a Bill of Rights was to withdraw certain subjects from the divestitutes of political controversy, religion being one of them,0 they depend on the outcome of no elections and the Court went on to say that religious freedom was First in the Bill of Rights because it was first in the forefathers’ mind and it was set forth in absolute terms and it is strength is its rigidity.

So when the appellants are offended by political divisiveness argument their quarrel is not with me and is not with the Court, it is with the very underpinnings of the First Amendment and I take it we do not have before us today the question of whether we don’t deal or we deal.

The point is if I may for just a moment, it is difficult to talk about a little – even a little history before this Court which has expressed so much honor, the point is that, that we were an enormously diverse people in the first place and that is why we made the separation experiment and Europe did not it, it was an American experiment because you know it strikes me of the Thomas Jefferson, James Madison, they weren’t the only two gentleman who understood in their bones that when the power of religion, when religion is backed by the power of government, that it corrodes both processes, government and religion.

The European contemporaries must have known it better than they, but they did not experiment with separation.

We did and why did we because we were nation building and we were building a nation of diverse religions and ethnic groups and it is not a question of ancient history as Mr. Ball implied in his brief.

Mr. Brennan, Mr. Justice Brennan pointed out in his separate Schempp opinion that our religious composition in this country today is far more the diverse than it was several hundred years ago and I think that the point must be made that there is an enormous unity that — and here as in European society which for 1000 or 2000 years has shared a common soil, developed a common language undergoing common terrible trauma, a unity that we did not have two hundred years ago which I suggest contemporary events can lead us all to believe we still do not have.

So perhaps Europe would survive the strains of establishment, but we could not.

The judgment was made by the forefathers that we could not and that is why — that is what I think Justice Frankfurter was saying in McGowan when he said the great American principle of eternal separation is one of the vital reliances of our system for assuring unities then our diversities.

Given and already at — well, let me conclude.

This legislation, Act 92, I do not understand distinction between this situation in Wolman versus Essex.

I do not understand this argument about annual appropriations because there really is not the slightest doubt that this law that identical it validated would come up year after year, not in some administrative body where after all there isn’t much entanglement, but in the legislature of Pennsylvania where there is a great deal, there is no reasoning in the world to believe that a $150 for a high school child and 75 is the end of road.

Your Honor, Mr. Chief Justice Berger noted in Lemon v. DiCenso about that Pennsylvania law, Lemon versus Kurtzman about that Pennsylvania law passed in 1968 that under it $5 million a year went to Parochial — to non-public schools, most of which were Parochial.

I call to Your Honor’s attention that that law was invalidated in June of 1971.

That this law was passed less than two months later that Attorney General Packel has nodded in his brief that under this law up to $75 million will be paid to parents of non-public school children.

A 15-fold increase in several years reminds me of Mr. Chief Justice Berger’s comments in Waltz that if tax exemption can be seen as the first step in the establishment of religion then the second step has been long in coming, that may very well be in respect of tax exemption, it most certainly is not in respective aid to sectarian education.

The second step came within two months and it was a 15-fold increase.

Potter Stewart:

Mr. Mann, what is the balance of the cigarette tax go?

Theodore R. Mann:

I am not sure sir, the attorney general does know?[Laughter]

Potter Stewart:


Theodore R. Mann:

77% balance, I do not go where it goes for other purposes and I do not know what they are.

Potter Stewart:

What did this — where did this 23% of the tax used to go?

Theodore R. Mann:

I believe — I cannot answer that because I believe, but I am not certain that the 1968 law that was invalidated by this Court was initially funded through the harness raising receipts and then was funded by the cigarette tax which I think was increased for that purpose, but I am really not certain and I am not helping the Court by —

Potter Stewart:

I was going to ask if there has been an increase in the tax?

Theodore R. Mann:

I think there was but I am not sure I am sorry.

I want to simply say this on political entanglement and then I will sit down.

In the lower court I was joined by Amici who joined in my brief, many, one of them was the state counsel of churches which is organized, mostly organized protestants in Pennsylvania, and another was Pennsylvania Jewish Community Relations Conference which is the most of the organized Jury in Pennsylvania and I asked, to ask myself, take product — the bitter, angry, and frustrated when legislation like this comes up for consideration and is indeed passed.

This legislation represents an enormous change if I may say at this way in the rules of the game after one side has committed itself to the old rules and has changed its position irretrievably, by that I mean that it is a 130 years ago, when every state in the Union already had as part of its fundamental law that the state could not support sectarian education.

All those cards were on the table, everybody knew that and at that point in time protestant America decided to let its religious schools become public schools.

Catholic America decided to start on the process of building the great and complex parochial school system that it has today.

For the Government to come along a 130 years later and say now we are going to begin funding sectarian education is it seems to me the grossest kind of interference of Government in the competition between Queens which Justice Douglas and Zorach said that in that competition between these, the Government must be absolutely neutral.

This is isn’t some peripheral thing we are talking about.

We are talking about Parochial education which this Court has set and which many educators has set, is singularly the most effective way of passing on a religious heritage from one generation to another, where the states have come along and begin to support only those religions and there are a number of them which have Parochial schools, but none of the religions and this is most of them which do not have Parochial school is laying the heavy hand of government on that competition and for that reason will cause enormous and has caused enormous divisiveness.

For all of these reasons I respectfully request the Court to affirm the judgment of the court below.

Warren E. Burger:

Thank you Mr. Mann today.

Your friends have 3 minutes remaining and Mr Ball, you wish to use that?

William Bentley Ball:

If I may.

Warren E. Burger:

You may.

William Bentley Ball:

Mr. Chief Justice, may it please the Court.I will save you 30 seconds Mr. Reath.

Mr Mann spoke first of all about the character of aided activity.

The aided activity here, in spite of every effort to call it aided activity a Parochial school.

The aided activity here is an act of will of the parent.

I don’t believe the bridge was crossed.

We have talked about conduit throughout this case but nothing that Mr Mann said in spite of all appeals, the questions concerning religious controversy, got him across that legal point, nothing can change the Act.

The Act in fact does rack money to individuals who have total disposition over that money.

His whole case depends on the conduit except for his remarks concerning religious divisiveness.

Now I beg the Court, where is their a record of this.

It is fine to talk about what no historical research supports the founding fathers as having said.

But we have to live in today’s day.

When we look at the record, which the plaintiffs could have made below, which they neglected made below, where was the religious divisiveness?

Does it consist in the fact that some people decide to go into the forum and make a religious issue out of something.

We didn’t even have it in spite of the intervention of religious groups in their own names in Pennsylvania.

William Bentley Ball:

We have shown, we have been willing to show that the record, the voting record was on both sides of the Island favor of this Act and opposed to this Act that Jews, Protestants and Catholics voted against the Act, voted for the Act.

There’s absolutely no foundation for this perfectly luridness charge of a Holy war going out in Pennsylvania.

The G.I bill of rights is perfectly justified in the same way that this Act is justified.

Certainly people could have made a religious issue out of it.

2000 people were educated at Divinity School under a G I bill of rights which at that time required that the check go directly to the school.

You can’t violate the constitution because somebody was coming back from War.

If that Act which was generally accepted just as the Pennsylvania Act is generally accepted.

If that Act were unconstitutional, it would be a very strange thing in our history, it was broadly accepted just as this Act is being broadly accepted today among the people of the state in real life in actual Pennsylvania.

Thank you, Your Honors.

Henry T. Reath:

Your Honors please, just a simple matter with what Mr. Ball said in response to Mr. Mann’s statement about the character, the aided activity.

He said the character of the aided activity was Parochial education.

I submit there was not a scintilla of evidence in the record to support it to the contrary.

The parent gets the money not because he sends his child to a Parochial school, but because he has assisted the state in meeting the state’s requirement for compulsory education.

Secondly with respect to political divisiveness, I agree again there is nothing in the record and further more I would point out that Mr Chief Justice in the Lemon and Tilton cases when he spoke of political divisiveness there, we are dealing again with the problem of aid to an Institution where the Institution had an on going call for the funds.

Here you have payment to a parent.

A parent is an individual person.

He has individual constitutional rights and one of those rights, is the right of free speech, the right of freedom of petition, the right to go to his legislative assembly and say, I want this because I am entitled to it.

I think the difference again highlights the essential distinction between payment to a parent which we have here, payment to institution which we have in Lemon and Kurtzman.

Thank you, Your Honors.

Warren E. Burger:

Thank you gentlemen.

The case is admitted.