|Board of Education v. Allen
[ White ]
[ Harlan ]
[ Black ]
[ Douglas ]
[ Fortas ]
Board of Education v. Allen
MR. JUSTICE DOUGLAS, dissenting.
We have for review a statute which authorizes New York State to supply textbooks to students in parochial, as well as in public, schools. The New York Court of Appeals sustained the law on the grounds that it involves only "secular textbooks," and that that type of aid falls within Everson v. Board of Education, 330 U.S. 1, [n1] where a divided Court upheld a state law which made bus service available to students in parochial schools, as well as to students in public schools. 20 N.Y.2d 109, 228 N.E.2d 791, 281 N.Y.S.2d 799.
The statute, on its face, empowers each parochial school to determine for itself which textbooks will be eligible for loans to its students, for the Act provides that the [p255] only text which the State may provide is "a book which a pupil is required to use as a text for a semester or more in a particular class in the school he legally attends." New York Education Law § 701, subd. 2. This initial and crucial selection is undoubtedly made by the parochial school's principal or its individual instructors, who are, in the case of Roman Catholic schools, normally priests or nuns.
The next step under the Act is an "individual request" for an eligible textbook (§ 701, subd. 3), but the State Education Department has ruled that a pupil may make his request to the local public board of education through a "private school official." [n2] Local boards have accordingly provided for those requests to be made by the individual or "by groups or classes." [n3] And forms for textbook requisitions to be filled out by the head of the private school are provided. [n4]
The role of the local public school board is to decide whether to veto the selection made by the parochial school. This is done by determining first whether the text has been or should be "approved" for use in public schools, and, second, whether the text is "secular," "nonreligious," or "nonsectarian." [n5] The local boards apparently [p256] have broad discretion in exercising this veto power. [n6]
Thus, the statutory system provides that the parochial school will ask for the books that it wants. Can there be the slightest doubt that the head of the parochial school will select the book or books that best promote its sectarian creed?
If the board of education supinely submits by approving and supplying the sectarian or sectarian-oriented textbooks, the struggle to keep church and state separate has been lost. If the board resists, then the battle line between church and state will have been drawn, and the contest will be on to keep the school board independent or to put it under church domination and control. [p257]
Whatever may be said of Everson, there is nothing ideological about a bus. There is nothing ideological about a school lunch, or a public nurse, or a scholarship. The constitutionality of such public aid to students in parochial schools turns on considerations not present in this textbook case. The textbook goes to the very heart of education in a parochial school. It is the chief, although not solitary, instrumentality for propagating a particular religious creed or faith. How can we possibly approve such state aid to a religion? A parochial school textbook may contain many, many more seeds of creed and dogma than a prayer. Yet we struck down in Engel v. Vitale, 370 U.S. 421, an official New York prayer for its public schools, even though it was not plainly denominational. For we emphasized the violence done the Establishment Clause when the power was given religious-political groups "to write their own prayers into law." Id. at 427. That risk is compounded here by giving parochial schools the initiative in selecting the textbooks they desire to be furnished at public expense.
Judge Van Voorhis, joined by Chief Judge Fuld and Judge Breitel, dissenting below, said that the difficulty with the textbook loan program "is that there is no reliable standard by which secular and religious textbooks [p258] can be distinguished from each other." 20 N.Y.2d at 122, 228 N.E.2d at 798, 281 N.Y.S.2d at 809. The New York Legislature felt that science was a nonsectarian subject (see n. 5, supra). Does this mean that any general science textbook intended for use in grades 7-12 may be provided by the State to parochial school students? May John M. Scott's Adventures in Science (1963) be supplied under the textbook loan program? This book teaches embryology in the following manner:
To you, an animal usually means a mammal, such as a cat, dog, squirrel, or guinea pig. The new animal, or embryo, develops inside the body of the mother until birth. The fertilized egg becomes an embryo, or developing animal. Many cell divisions take place. In time, some cells become muscle cells, others nerve cells or blood cells, and organs such as eyes, stomach, and intestine are formed.
The body of a human being grows in the same way, but it is much more remarkable than that of any animal, for the embryo has a human soul infused into the body by God. Human parents are partners with God in creation. They have very great powers and great responsibilities, for, through their cooperation with God, souls are born for heaven.
(At 618-619.) [n7]
Comparative economics would seem to be a nonsectarian subject. Will New York, then, provide Arthur J. Hughes' general history text, Man in Time (1964), to [p259] parochial school students? It treats that topic in this manner:
Capitalism is an economic system based on man's right to private property and on his freedom to use that property in producing goods which will earn him a just profit on his investment. Man's right to private property stems from the Natural Law implanted in him by God. It is as much a part of man's nature as the will to self-preservation.
The broadest definition of socialism is government ownership of all the means of production and distribution in a country. . . . Many, but by no means all, Socialists in the nineteenth century believed that crime and vice existed because poverty existed, and, if poverty were eliminated, then crime and vice would disappear. While it is true that poor surroundings are usually unhealthy climates for high moral training, still, man has the free will to check himself. Many Socialists, however, denied free will, and said that man was a creation of his environment. . . . If Socialists do not deny Christ's message, they often ignore it. Christ showed us by His life that this earth is a testing ground to prepare man for eternal happiness. Man's interests should be in this direction at least part of the time, and not always directed toward a futile quest for material goods.
(At 561-564.) [n8]
Mr. Justice Jackson said,
. . . I should suppose it is a proper, if not an indispensable, part of preparation for a [p260] worldly life to know the roles that religion and religions have played in the tragic story of mankind.
McCollum v. Board of Education, 333 U.S. 203, 236 (concurring opinion). Yet, as he inquired, what emphasis should one give who teaches the Reformation, the Inquisition, or the early effort in New England to establish "‘a Church without a Bishop and a State without a King?'" Ibid. What books should be chosen for those subjects?
Even where the treatment given to a particular topic in a school textbook is not blatantly sectarian, it will necessarily have certain shadings that will lead a parochial school to prefer one text over another. [n9]
The Crusades, for example, may be taught as a Christian undertaking to "save the Holy Land" from the Moslem Turks who "became a threat to Christianity and its holy places," which "they did not treat . . . with respect" [p261] (H. Wilson, F. Wilson, B. Erb & E. Clucas, Out of the Past 284 (1954)), or as essentially a series of wars born out of political and materialistic motives (see G. Leinwand, The Pageant of World History 136-137 (1965)).
Is the dawn of man to be explained in the words, "God created man and made man master of the earth" (P. Furlong, The Old World and America 5 (1937)), or in the language of evolution (see T. Wallbank, Man's Story 3235 (1961))?
Is the slaughter of the Aztecs by Cortes and his entourage to be lamented for its destruction of a New World culture (see J. Caughey, J. Franklin, & E. May, Land of the Free 27-28 (1965)), or forgiven because the Spaniards "carried the true Faith" to a barbaric people who practiced human sacrifice (see P. Furlong, Sr. Margaret, & D. Sharkey, America Yesterday 17, 34 (1963))?
Is Franco's revolution in Spain to be taught as a crusade against anti-Catholic forces (see R. Hoffman, G. Vincitorio, & M. Swift, Man and His History 666-667 (1958)) [n10] or as an effort by reactionary elements to regain control of that country (see G. Leinwand, the Pageant of World History, supra at 512)? [n11] Is the expansion of [p262] communism in select areas of the world a manifestation of the forces of Evil campaigning against the forces of Good? See A. Hughes, Man in Time, supra, at 565-568, 666 669, 735-748.
It will be often difficult, as Mr. Justice Jackson said, to say "where the secular ends and the sectarian begins in education." McCollum v. Board of Education, 333 U.S. at 237-238. But certain it is that, once the so-called "secular" textbook is the prize to be won by that religious faith which selects the book, the battle will be on for those positions of control. Judge Van Voorhis expressed the fear that, in the end, the state might dominate the church. Others fear that one sectarian group, gaining control of the state agencies which approve the "secular" textbooks, will use their control to disseminate ideas most congenial to their faith. It must be remembered that the very existence of the religious school -- whether Catholic or Mormon, Presbyterian or Episcopalian -- is to provide an education oriented to the dogma of the particular faith. [n12] [p263]
Father Peter O'Reilly put the matter succinctly when he disclosed what was happening in one Catholic school: [n13]
On February 24, 1954, Rev. Cyril F. Meyer, C. M., then Vice-President of the University, sent the following letter to all the faculty, both Catholics and non-Catholics, even those teaching law, science, and mathematics:
Dear Faculty Member:
As a result of several spirited discussions in the Academic Senate, a resolution was passed by that body that a self-evaluation be made of the effectiveness with which we are achieving in our classrooms the stated objectives of the University. . . . The primacy of the spiritual is the reason for a Christian university. Our goal is not merely to equip students with marketable skills. It is far above this -- to educate man, the whole man, the theocentric man. As you are well aware, we strive to educate not only for personal and social success in secular society, but far more for leadership toward a theocentric society. . . . [p264]
May I, therefore, respectfully request that you submit answers as specific as possible to the following questions:
1. What do you do to make your particular courses theocentric?
2. Do you believe there is anything the Administration or your colleagues can do to assist you in presenting your particular courses more "according to the philosophical and theological traditions of the Roman Catholic Church"? Do not hesitate to let us know. There is no objective of our University more fundamental than this. We must all be aware that "the classroom that is not a temple is a den."
Please try to have your answers, using this size paper, returned to me by March 10.
This tendency is no Catholic monopoly:
The Presbyterian-affiliated Lewis and Clark College seems to have a similar interest in appearances of autonomy, with a view to avoiding possible legal bars to both federal funds and gifts from some foundations. The change, which legitimizes the college as an autonomous educational institution, removes the requirement that each presbytery in Oregon have at least one representative on the board, but it was made clear "The college wishes to change only its legal relationship to the synod, and not its purposes," and promised that it still will elect a minister from each presbytery to the board on nomination of the synod, and will consult the synod before making any change in its statement of purpose, which defines it as a Presbyterian-related college. [n14]
The challenged New York law leaves to the Board of Regents, local boards of education, trustees, and other school authorities the supervision of the textbook program. [p265]
The Board of Regents (together with the Commissioner of Education) has powers of censorship over all textbooks that contain statements seditious in character or evince disloyalty to the United States or are favorable to any nation with which we are at war. New York Education Law § 704. Those powers can cut a wide swath in many areas of education that involve the ideological element. [n15]
In general, textbooks are approved for distribution by "boards of education, trustees or such body or officer as perform the functions of such boards. . . ." New York Education Law § 701, subd. 1. These school boards are generally elected, §§ 2013, 2502, subd. 2, though, in a few cities, they are appointed. § 2553. Where there are trustees, they are elected. § 1523, 1602, 1702. And superintendents who advise on textbook selection are appointed by the board of education or the trustees. §§ 1711, 2503, subd. 5, 2507.
The initiative to select and requisition "the books desired" is with the parochial school. Powerful religious-political pressures will therefore be on the state agencies to provide the books that are desired.
These, then, are the battlegrounds where control of textbook distribution will be won or lost. Now that "secular" textbooks will pour into religious schools, we can rest assured that a contest will be on [n16] to provide those books for religious schools which the dominant religious group concludes best reflect the theocentric or other philosophy of the particular church. [p266]
The stakes are now extremely high -- just as they were in the school prayer cases (see Engel v. Vitale, supra) -- to obtain approval of what is "proper." For the "proper" books will radiate the "correct" religious view not only in the parochial school, but in the public school as well.
Even if I am wrong in that basic premise, we still should not affirm the judgment below. Judge Van Voorhis, dissenting in the New York Court of Appeals, thought that the result of tying parochial school textbooks to public funds would be to put nonsectarian books into religious schools, which, in the long view, would tend towards state domination of the church. 20 N.Y.2d at 123, 228 N.E.2d at 798, 281 N.Y.S.2d at 810. T hat would, indeed, be the result if the school boards did not succumb to "sectarian" pressure or control. So however the case be viewed -- whether sectarian groups win control of school boards or do not gain such control -- the principle of separation of church and state, inherent in the Establishment Clause of the First Amendment, is violated by what we today approve.
What Madison wrote in his famous Memorial and Remonstrance against Religious Assessments is highly pertinent here: [n17]
Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? That the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, [n18] may force him to conform to any other establishment in all cases whatsoever? [p267]
APPENDIX A TO OPINION OFDOUGLAS, J., DISSENTING
CODE-220-399-2-NYSTL REQ. NUMBER _______
PUBLISHERS NAME _________________
STREET ADDRESS ___________________
CITY AND STATE ___________________
SHIP TO -- EDISON WAREHOUSE
STREET -- VAN GUYSLING AVE.
CITY & STATE -- SCHENECTADY, N.Y.
No. COPIES ____ NAME OF BOOK _____________TOTAL ____
GRADE LEVEL _________
PRICE PER BOOK ______ ____________
I certify that the following number of children residing in your school district have individually requested the loan of the textbook indicated above for the school year 1967-68 in accordance with Section 701, subdivision 2, of the Education Law. Form 1 requests have been submitted to you for each child. I also certify that the textbook requested is a nonsectarian edition and approved for use by a New York State Public School District.
Name of Parochial/Private School Official of Private School
APPENDIX B TO OPINION OFDOUGLAS, J., DISSENTINGLETTER OF FRANCIS CARDINAL SPELLMAN,NOVEMBER 1, 1967
One of the most precious rights which we have in our civil society is the right to vote. This right should be exercised with reverence and with understanding -- particularly when emotional feelings run high.
An important opportunity to exercise this right will be provided on next Tuesday, November 7th. On that day, we are asked to choose between the old State Constitution and the proposed new State Constitution. We will decide whether the provisions of the new Constitution will better serve the changing needs of our families, our neighbors, and our institutions, both public and private.
We are faced with a grave responsibility to weigh this choice carefully and to vote conscientiously. I have viewed with concern the tone of the past month's discussion with regard to the proposed new Constitution. I am disappointed that so much of the opposition to the Constitution comes from those forces in our pluralistic society who would deny equal educational opportunities to children attending parochial schools. As a citizen, I am dismayed to think that they would have overwhelmingly supported the new Constitution were it not for the fact that it repeals the Blaine Amendment.
The proposed new Constitution, as a whole, is so closely related to our lives that it must command our careful consideration. This document addresses itself to values basic to the fulfillment of our lives as citizens. We must be aware that this Constitution contains new provisions designed to facilitate the rebuilding of our communities, new provisions committing the State to the [p269] maximum development of the educational potential of every citizen, new provisions enabling government, in a responsible way, to mobilize all the forces of society to meet the changing needs of all our people, to enhance their environment and to promote their social wellbeing.
At the close of the Constitutional Convention, I expressed my opinion that the Convention had produced a document worthy of support by the people of New York State. Nothing in the public debate since then has caused me to alter my judgment.
I know that you will conscientiously fulfill your civic duty, and that you will give serious consideration to this proposed new Constitution. [*]
* One parochial school lobbyist group has urged Congress that, in order to avoid an establishment of secularism in education, federal monies must be distributed to all the various sects which operate parochial schools.
"[T]here is no valueless or neutral school," it is argued, and education and religion cannot be separated from each other. Hearings on S. 3 and H.R. 1198 before Subcommittee No. 3 of the House Committee on the Judiciary, 90th Cong., 2d Sess., at ___ (1968) (statement of Dr. Francis J. Brown, chairman, National Association for Personal Rights in Education).
The views expressed by my Brother HARLAN in his concurring opinion are somewhat similar. His approval, on a constitutional basis, of government aid to our country's churches "calculated to achieve nonreligious purposes otherwise within the competence of the State" and not involving the state "‘significantly and directly in the realm of the sectarian'" would seem to permit considerable diversion of public funds to the various sects. The state's "competence" in the areas of health, safety, and welfare of the people would, under that view, permit it to fund a church's charity programs, pay for renovating dilapidated church buildings, and pay for the services and upkeep, such as janitors' salaries and utility bills, necessary to maintain church buildings in safe and healthful condition. Indeed, short of state-provided prayer books, sacramental wine, and the like, churches could, apparently, become virtual state dependencies.
Should that, unhappily, come to pass, then perhaps the church would in time become an administrative arm of the state, a goal predicted by J. Galbraith for "the mature corporation." The New Industrial State 393 (1967).
Then the circle would be completed, and we would return to the point where the long struggle to keep church and state separate first started.First Amendment.
1. Everson, relied on by the Court of Appeals of New York, did not involve textbooks and did not present the serious problems raised by a form of aid to parochial students which injects religious issues into the choice of curriculum. In the only decision of this Court upholding a state grant of textbooks to sectarian school students, Cochran v. Board of Education, 281 U.S. 370, the First Amendment issue was not raised. See id. at 370-373; Everson v. Board of Education, 330 U.S. 1, 29, n. 3 (dissenting opinion).
2. Letter from Herbert F. Johnson, State Education Department, to City, Village and District Superintendents & Supervising Principals, ¶ 5, Jan. 10, 1966, reproduced in Brief for American Jewish Committee et al. as Amici Curiae, at 43, 44.
3. Manual of Instructions on Recordkeeping Procedures for Textbooks Loaned in Conformance With Provisions of the New York State Textbook Law ¶ 2.3 (1967), reproduced in Brief for National Jewish Commission on Law and Public Affairs as Amicus Curiae, at 24, 25.
4. See Appendix A to this opinion.
5. The State Court of Appeals used the phrases "secular textbooks" and "nonreligious textbooks" without any elaboration as to what was meant. 20 N.Y.2d at 117, 228 N.E.2d at 794-795, 281 N.Y.S.2d at 805. The legislature, in its "statement of policy" to the Act (Laws of 1965, c. 320, § 1), speaks of aiding instruction in "nonsectarian subjects," and gives as examples "science, mathematics, and foreign languages." The State Department of Education has stated that
it is necessary that . . . [t]he textbooks be nonsectarian this eliminates denominational editions and those carrying the "imprimatur" or "nihil obstat" of a religious authority). . . .
Opinion of Counsel No. 181. There are no other definitions to be found.
The Court was advised at oral argument by the Assistant Attorney General that Opinion of Counsel No. 181 is advisory only, and not binding. It would state the policy of the New York Department of Education, in event of an appeal to it by a taxpayer of a local board's decision, that a certain text was "nonsectarian" or should be "approved." The Regents of the University of the State of New York, who have the last word on such matters and are specifically authorized by § 701, subd. 3, to promulgate regulations respecting the textbook loan program, have not done so, and their position on what is "nonsectarian" is unknown.
6. For example, the regulations of the Board of Education of the City of New York respecting approval of textbooks for public schools contain no limitations directly relevant to the question of sectarianism. The material is to "promote the objectives of the educational program," "treat the subject competently and accurately," "be in good taste," "have a wholesome tone that is consonant with right conduct and civic values," "be in harmony with American democratic ideals and moral values," "be free of any reflection on the dignity and status of any group, race, or religion, whether expressed or implied, by statement or omission," and "be free of objectionable features of over-dramatization, violence, or crime." Guiding Principles for Schools in the Selection and Use of "Non-Listed" Instructional Materials (1952). Opinion of Counsel No. 181 (see n. 5, supra) simply states that the local board, if it finds that no other board has approved the text in question, should "decide if it wishes to approve the same itself." This opinion of counsel also states that, if the board is in doubt as to whether a text is "nonsectarian," that is whether it carries an imprimatur or nihil obstat or is a denominational edition, it "must make the appropriate determination."
7. Although the author of this textbook is a priest, the text contains no imprimatur and no nihil obstat. Although published by a Catholic press, the Loyola University Press, Chicago, it is not marked in any manner as a "denominational edition," but is simply the general edition of the book. Accordingly, under Opinion of Counsel No. 181, the only document approaching a "regulation" on the issue involved here, Adventures in Science would qualify as "nonsectarian." See nn. 5, 6, supra.
8. Man In Time contains a nihil obstat and an imprimatur. Thus, if Opinion of Counsel No. 181 (see nn. 5, 6, supra) is applicable, this book may not be provided by the State. The Opinion of Counsel, however, is only "advisory," we are told; moreover, the religious endorsements could easily be removed by the author and publisher at the next printing.
9. Some parochial schools may prefer those texts which are liberally sprinkled with religious vignettes. This creeping sectarianism avoids the direct teaching of religious doctrine, but keeps the student continually reminded of the sectarian orientation of his education. In P. Furlong, Sr. Margaret, & D. Sharkey's American history text, America Yesterday (1963), for example, the student is informed that the first mass to be said in what is now the United States was in 1526 near Chesapeake Bay, that eight French missionaries to Canada in the early 1600's were canonized in 1930, that one of the men who signed the Declaration of Independence and two who attended the Constitutional Convention were Catholic, and that the superintendent of the Hudson Bay Company's outpost in the Oregon country converted to Catholicism in 1842. At 26, 73-74, 102, 14, 235. And J. Scott's Adventures in Science (1963), in teaching the atmospheric conditions prevailing at the top of Mount Everest, informs the student that, when Sir Edmund Hillary first scaled this peak he placed there a "tiny crucifix" which a Benedictine monk had supplied. At 72.
America Yesterday, supra, is another example of a text written by the clergy (here a priest and nun together with one layman) that contains no imprimatur and no nihil obstat, and is not a denominational edition. See nn. 5-7.
In Spain early in 1936, a popular-front organization won a victory in the national elections. The result was a government made up of discordant political elements that failed to preserve civil order in the country. Violent anti-Catholics attacked and burned churches and monasteries, and the government did not even try to prevent these crimes. As a result, Spaniards who loved their country and were loyal to their religion revolted against the popular front government of the republic. An able general, Francisco Franco, put himself at the head of the revolt, which began in July 1936.
Spain, at the end of World War I, was a backward, poverty-stricken monarchy. In 1931, the king resigned and the people established a republic. The Spanish tried many reforms, but there were many who wanted to go back to the old ways and old privileges of the monarchy. Those who were rich wanted to hold on to their property. These people thought that Francisco Franco, a Fascist, could help them.
In 1936, a civil war started which soon came to be called a "dress rehearsal" for World War II because the Fascist countries of Italy and Germany supported Franco and his rebels. On the other hand, Russia supported the loyalists (as the armies of the republic were called). The democratic countries might have supported the loyalists, too, but fear of communism prevented them from doing so. Franco defeated the loyalists and, in 1938, became dictator of Spain and today, as El Caudillo ("The Leader") still rules Spain with an iron hand.
12. The purpose of the parochial school in the beginning is clear beyond peradventure. The generally held Roman Catholic position in the matter of education in public and parochial schools has been well summarized by the late Monsignor John A. Ryan (1869-1945):
"As a matter of fact, the State maintains a system of schools which is not completely satisfactory to Catholics, inasmuch as no place is given to morality and religion. Since the Church realizes that the teaching of religion and instruction in the secular branches cannot rightfully or successfully be separated one from the other, she is compelled to maintain her own system of schools for general education as well as for religious instruction. . . ."
2 A. Stokes, Church and State in the United States 654 (1950).
The education in the parochial schools follows in general the curriculum in the public schools, the main differences being that about 15 percent of the time is given to religious instruction, and that the Catholic point of view is brought out in the treatment of historical and other subjects, just as the Protestant point of view might be emphasized in a Protestant school.
Some, however, think that some parochial schools are changing their character under practical pressures of educational competition. See, e.g., Fleming, Fordham Is Trying to be catholic With a Small "c," N.Y. Times Magazine, Dec. 10, 1967, p. 32.
13. St. John's I: A Chronicle of Folly, 4 Continuum 223, 233-234 (1966).
14. Id. 234 (emphasis in original).
15. Cf. Adler v. Board of Education, 34 U.S. 485; Barsky v. Board of Regents, 347 U.S. 442.
16. The proportions of the contest are suggested in the letter dated November 1, 1967, that the late Cardinal Spellman directed to be read at all the masses on Sunday, November 5, 1967, just before the vote on a proposed Constitution that would have opened wide the door to state aid to parochial schools. I have attached the letter as Appendix B to this opinion.
17. 2 Writings of James Madison 186 (Hunt ed.1901).
18. For a recent account of the extent to which public funds are being poured into sectarian schools, see S.Rep. No. 473, 90th Cong., 1st Sess., 9-10 (1967).