Board of Education v. Allen

No. 660 Argued: April 22, 1968 --- Decided: June 10, 1968
MR. JUSTICE WHITE delivered the opinion of the Court.

A law of the State of New York requires local public school authorities to lend textbooks free of charge to all students in grades seven through 12; students attending private schools are included. This case presents the question whether this statute is a "law respecting an establishment of religion, or prohibiting the free exercise thereof," and so in conflict with the First and Fourteenth Amendments to the Constitution, because it authorizes the loan of textbooks to students attending parochial schools. We hold that the law is not in violation of the Constitution.

Until 1965, § 701 of the Education Law of the State of New York authorized public school boards to designate [p239] textbooks for use in the public schools, to purchase such books with public funds, and to rent or sell the books to public school students. [n1] In 1965, the legislature amended § 701, basing the amendments on findings that the

public welfare and safety require that the state and local communities give assistance to educational programs which are important to our national defense and the general welfare of the state. [n2]

Beginning with the 1966 1967 school year, local school boards were required to purchase textbooks and lend them without charge

to all children residing in such district who are enrolled in grades seven to twelve of a public or private school which complies with the compulsory education law.

The books now loaned are

textbooks which are designated for use in any public, elementary or secondary schools of the state or are approved by any boards of education,

and which -- according to a 1966 amendment -- "a pupil is required to use as a text for a semester or more in a particular class in the school he legally attends." [n3] [p240]

Appellant Board of Education of Central School District No. 1 in Renesselaer and Columbia Counties, brought suit in the New York courts against appellee James Allen. [n4] The complaint alleged that § 701 violated both the State and Federal Constitutions; that, if appellants, in reliance on their interpretation of the Constitution, failed to lend books to parochial school students within their counties, appellee Allen would remove appellants from office, and that, to prevent this, appellants were complying with the law and submitting to their constituents a school budget including funds for books to be lent to parochial school pupils. Appellants therefore sought a declaration that § 701 was invalid, an order barring appellee Allen from removing appellants from office for failing to comply with it, and another order restraining him from apportioning state funds to school districts for the purchase of textbooks to be lent to parochial students. After answer, and upon cross-motions for summary judgment, the trial court held the law unconstitutional [p241] under the First and Fourteenth Amendments and entered judgment for appellants. 51 Misc.2d 297, 273 N.Y.S.2d 239 (1966). The Appellate Division reversed, ordering the complaint dismissed on the ground that appellant school boards had no standing to attack the validity of a state statute. 27 App.Div.2d 69, 276 N.Y.S.2d 234 (1966). On appeal, the New York Court of Appeals concluded by a 4-3 vote that appellants did have standing, [n5] but, by a different 4-3 vote, held that § 701 was not in violation of either the State or the Federal Constitution. 20 N.Y.2d 109, 228 N.E.2d 791, 281 N.Y.S.2d 799 (1967). The Court of Appeals said that the law's purpose was to benefit all school children, regardless of the type of school they attended, and that only textbooks approved by public school authorities could be loaned. It therefore considered § 701

completely neutral with respect to religion, merely making available secular textbooks at the request of the individual student, and asking no question about what school he attends.

Section 701, the Court of Appeals concluded, is not a law which "establishes a religion or constitutes the use of public funds to aid religious schools." 20 N.Y.2d at 117; 228 N.E.2d at 794, 795; 281 N.Y.S.2d at 805. We noted probable jurisdiction. 389 U.S. 1031 (1968).

Everson v. Board of Education, 330 U.S. 1 (1947), is the case decided by this Court that is most nearly in [p242] point for today's problem. New Jersey reimbursed parents for expenses incurred in busing their children to parochial schools. The Court stated that the Establishment Clause bars a State from passing "laws which aid one religion, aid all religions, or prefer one religion over another," and bars too any

tax in any amount, large or small . . . levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.

330 U.S. at 15-16. Nevertheless, said the Court, the Establishment Clause does not prevent a State from extending the benefits of state laws to all citizens without regard for their religious affiliation and does not prohibit

New Jersey from spending tax raised funds to pay the bus fares of parochial school pupils as a part of a general program under which it pays the fares of pupils attending public and other schools.

The statute was held to be valid even though one of its results was that "children are helped to get to church schools," and

some of the children might not be sent to the church schools if the parents were compelled to pay their children's bus fares out of their own pockets.

330 U.S. at 17. As with public provision of police and fire protection, sewage facilities, and streets and sidewalks, payment of bus fares was of some value to the religious school, but was nevertheless not such support of a religious institution as to be a prohibited establishment of religion within the meaning of the First Amendment.

Everson and later cases have shown that the line between state neutrality to religion and state support of religion is not easy to locate.

The constitutional standard is the separation of Church and State. The problem, like many problems in constitutional law, is one of degree.

Zorach v. Clauson, 343 U.S. 306, 314 (1952). See McGowan v. Maryland, 366 U.S. 420 (1961). Based [p243] on Everson, Zorach, McGowan, and other cases, Abington School District v. Schempp, 374 U.S. 203 (1963), fashioned a test subscribed to by eight Justices for distinguishing between forbidden involvements of the State with religion and those contacts which the Establishment Clause permits:

The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion, then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say that, to withstand the strictures of the Establishment Clause, there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion. Everson v. Board of Education. . . .

374 U.S. at 222.

This test is not easy to apply, but the citation of Everson by the Schempp Court to support its general standard made clear how the Schempp rule would be applied to the facts of Everson. The statute upheld in Everson would be considered a law having "a secular legislative purpose and a primary effect that neither advances nor inhibits religion." We reach the same result with respect to the New York law requiring school books to be loaned free of charge to all students in specified grades. The express purpose of § 701 was stated by the New York Legislature to be furtherance of the educational opportunities available to the young. Appellants have shown us nothing about the necessary effects of the statute that is contrary to its stated purpose. The law merely makes available to all children the benefits of a general program to lend school books free of charge. Books are furnished at the request of the pupil and ownership remains, at least technically, in the State. Thus, no funds or books are furnished [p244] to parochial schools, and the financial benefit is to parents and children, not to schools. [n6] Perhaps free books make it more likely that some children choose to attend a sectarian school, but that was true of the state-paid bus fares in Everson, and does not alone demonstrate an unconstitutional degree of support for a religious institution. Of course, books are different from buses. Most bus rides have no inherent religious significance, while religious books are common. However, the language of § 701 does not authorize the loan of religious books, and the State claims no right to distribute religious literature. Although the books loaned are those required by the parochial school for use in specific courses, each book [p245] loaned must be approved by the public school authorities; only secular books may receive approval. The law was construed by the Court of Appeals of New York as "merely making available secular textbooks at the request of the individual student," supra, and the record contains no suggestion that religious books have been loaned. Absent evidence, we cannot assume that school authorities, who constantly face the same problem in selecting textbooks for use in the public schools, are unable to distinguish between secular and religious books, or that they will not honestly discharge their duties under the law. In judging the validity of the statute on this record, we must proceed on the assumption that books loaned to students are books that are not unsuitable for use in the public schools because of religious content.

The major reason offered by appellants for distinguishing free textbooks from free bus fares is that books, but not buses, are critical to the teaching process, and, in a sectarian school, that process is employed to teach religion. However. this Court has long recognized that religious schools pursue two goals, religious instruction and secular education. In the leading case of Pierce v. Society of Sisters, 268 U.S. 510 (1925), the Court held that, although it would not question Oregon's power to compel school attendance or require that the attendance be at an institution meeting State-imposed requirements as to quality and nature of curriculum, Oregon had not shown that its interest in secular education required that all children attend publicly operated schools. A premise of this holding was the view that the State's interest in education would be served sufficiently by reliance on the secular teaching that accompanied religious training in the schools maintained by the Society of Sisters. Since Pierce, a substantial body of case law has confirmed the power of the States to insist that attendance at private schools, if it is to satisfy state compulsory attendance [p246] laws, be at institutions which provide minimum hours of instruction, employ teachers of specified training, and cover prescribed subjects of instruction. [n7] Indeed, the State's interest in assuring that these standards are being met has been considered a sufficient reason for refusing to accept instruction at home as compliance with compulsory [p247] education statutes. [n8] These cases were a sensible corollary of Pierce v. Society of Sisters: if the State must satisfy its interest in secular education through the instrument of private schools, it has a proper interest in the manner in which those schools perform their secular educational function. Another corollary was Cochran v. Louisiana State Board of Education, 281 U.S. 370 (1930), where appellants said that a statute requiring school books to be furnished without charge to all students, whether they attended public or private schools, did not serve a "public purpose," and so offended the Fourteenth Amendment. Speaking through Chief Justice Hughes, the Court summarized as follows its conclusion that Louisiana's interest in the secular education being provided by private schools made provision of textbooks to students in those schools a properly public concern:

[The State's] interest is education, broadly; its method, comprehensive. Individual interests are aided only as the common interest is safeguarded.

281 U.S. at 375.

Underlying these cases, and underlying also the legislative judgments that have preceded the court decisions, has been a recognition that private education has played and is playing a significant and valuable role in raising national levels of knowledge, competence, and experience. Americans care about the quality of the secular education available to their children. They have considered high quality education to be an indispensable ingredient for achieving the kind of nation, and the kind of citizenry, that they have desired to create. Considering this attitude, the continued willingness to rely on private school systems, including parochial systems, strongly suggests [p248] that a wide segment of informed opinion, legislative and otherwise, has found that those schools do an acceptable job of providing secular education to their students. [n9] This judgment is further evidence that parochial schools are performing, in addition to their sectarian function, the task of secular education.

Against this background of judgment and experience, unchallenged in the meager record before us in this case, we cannot agree with appellants either that all teaching in a sectarian school is religious or that the processes of secular and religious training are so intertwined that secular textbooks furnished to students by the public are, in fact, instrumental in the teaching of religion. This case comes to us after summary judgment entered on the pleadings. Nothing in this record supports the proposition that all textbooks, whether they deal with mathematics, physics, foreign languages, history, or literature, are used by the parochial schools to teach religion. No evidence has been offered about particular schools, particular courses, particular teachers, or particular books. We are unable to hold, based solely on judicial notice, that this statute results in unconstitutional involvement of the State with religious instruction, or that § 701, for this or the other reasons urged, is a law respecting the establishment of religion within the meaning of the First Amendment.

Appellants also contend that § 701 offends the Free Exercise Clause of the First Amendment. However,

it is necessary in a free exercise case for one to show the [p249] coercive effect of the enactment as it operates against him in the practice of his religion,

Abington School District v. Schempp, 374 U.S. 203, 223 (1963), and appellants have not contended that the New York law in any way coerces them as individuals in the practice of their religion.

The judgment is affirmed.

1. New York Sess.Laws 1950, c. 239, § 1. New York Education Law § 703, New York Sess.Laws 1950, c. 239, § 3, permitted the qualified voters of any school district to authorize a special tax for the purpose of making available free textbooks. The 1965 amendments that required free textbooks to be provided for grades seven through 12 amended § 703 so that it now permits local voters to approve free books for grades one through six.

2. New York Sess.Laws 1965, c. 320, § 1.

3. New York Education Law § 701 (1967 Supp.):

1. In the several cities and school districts of the state, boards of education, trustees or such body or officer as perform the functions of such boards, shall designate textbooks to be used in the schools under their charge.

2. A textbook, for the purposes of this section, shall mean 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.

3. In the several cities and school districts of the state, boards of education, trustees or such body or officers as perform the function of such boards shall have the power and duty to purchase and to loan upon individual request, to all children residing in such district who are enrolled in grades seven to twelve of a public or private school which complies with the compulsory education law, textbooks. Textbooks loaned to children enrolled in grades seven to twelve of said private schools shall be textbooks which are designated for use in any public, elementary or secondary schools of the state or are approved by any boards of education, trustees or other school authorities. Such textbooks are to be loaned free to such children subject to such rules and regulations as are or may be prescribed by the board of regents and such boards of education, trustees or other school authorities.

The present subdivision 2 was added by amendment in 1966, New York Sess.Laws 1966, c. 795. This suit was filed, and the trial court opinion was rendered, prior to the 1966 amendment.

4. Intervention was permitted on plaintiffs' side by the Board of Education of Union Free School District No. 3 in Nassau County, which appears here as co appellant, and on defendants' side by parents of certain students attending private schools, who appear here as co appellees.

5. Appellees do not challenge the standing of appellants to press their claim in this Court. Appellants have taken an oath to support the United States Constitution. Believing § 701 to be unconstitutional, they are in the position of having to choose between violating their oath and taking a step -- refusal to comply with § 701 -- that would be likely to bring their expulsion from office and also a reduction in state funds for their school districts. There can be no doubt that appellants thus have a "personal stake in the outcome" of this litigation. Baker v. Carr, 369 U.S. 186, 204 (1962).

6. While the record and the state court opinions in this case contained no information about how the books are, in fact, transferred from the Boards of Education to individual students, both parties suggested in their briefs and on oral argument before this Court that New York permits private schools to submit to boards of education summaries of the requests for textbooks filed by individual students, and also permits private schools to store on their premises the textbooks being loaned by the Board of Education to the students. This interpretation of the State's administrative procedure is supported by an "Opinion of Counsel" made available by the Board of Regents and the State Department of Education to local school superintendents. For purposes of this case, we consider the New York statute to permit these procedures. So construing the statute, we find it in conformity with the Constitution, for the books are furnished for the use of individual students, and at their request.

It should be noted that the record contains no evidence that any of the private schools in appellants' districts previously provided textbooks for their students. There is some evidence that at least some of the schools did not: intervenor defendants asserted that they had previously purchased all their children's textbooks. And see statement of then Commissioner of Education Keppel: "Nonpublic schools rarely provide free textbooks." Hearings on Elementary and Secondary Education Act of 1965 before General Subcommittee on Education of House Committee on Education and Labor, 89th Cong., 1st Sess., Pt. 1, 93 (1965).

7. This Court has twice suggested the constitutionality of these state regulations.

[T]he State may "require teaching by instruction and study of all in our history and in the structure and organization of our government, including the guaranties of civil liberty, which tend to inspire patriotism and love of country."

West Virginia State Board of Education v. Barnette, 319 U.S. 624, 631 (1943), quoting 319 U.S. 624, 631 (1943), quoting Minersville School District v. Gobitis, 310 U.S. 586, 604 (1940) (Stone, J., dissenting).

This Court has said that parents may, in the discharge of their duty under state compulsory education laws, send their children to a religious, rather than a public, school if the school meets the secular educational requirements which the state has power to impose.

Everson v. Board of Education, 330 U.S. 1, 18 (1947) (citing Pierce v. Society of Sisters). A great many state cases have upheld a wide range of private school regulation. E.g., Meyekorth v. State, 173 Neb. 889, 115 N.W.2d 585 (1962), appeal dismissed for want of a substantial federal question, 372 U.S. 705 (1963); State v. Hoyt, 84 N.H. 38, 146 A. 170 (1929); People v. Donner, 199 Misc. 643, 99 N.Y.S.2d 830 (Dom.Rel.Ct.1950), aff'd mem., 278 App.Div. 705, 103 N.Y.S.2d 757, aff'd mem., 302 N.Y. 857, 100 N.E.2d 48, appeal dismissed for want of a substantial federal question, 342 U.S. 884 (1951).

New York State regulates private schools extensively, especially as to attendance and curriculum. New York Education Law §§ 3201-3229 (1953). Regents examinations are given to private school students. Id. § 209. The basic requirement is that the instruction given in private schools satisfying the compulsory attendance law be

at least substantially equivalent to the instruction given to minors of like age and attainments at the public schools of the city or district where the minor resides.

Id. § 3204 subd. 2.

New York requires school attendance of "each minor from seven to sixteen years of age" unless he has completed high school. Id. § 3205.

8. E.g., People v. Turner, 121 Cal.App.2d 861, 263 P.2d 685 (1953), appeal dismissed for want of a substantial federal question, 347 U.S. 972 (1954).

9. In 1965-1966 in New York State, over 900,000 students, or 22.2% of total state enrollment, attended nonpublic schools. University of State of New York, Education Statistics Estimates 1966-67, Table I (1966). The comparable statistic for the Nation was at least 10%. United States Bureau of the Census, Statistical Abstract of the United States: 1967, at 111 (1967).