Board of Education of Central School District No. 1 v. Allen/Dissent Douglas

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, 67 S.Ct. 504, 91 L.Ed. 711, 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, 281 N.Y.S.2d 799, 228 N.E.2d 791.

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 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.' Local boards have accordingly provided for those requests to be made by the individual or 'by groups or classes.' And forms for textbook requisitions to be filled out by the head of the private school are provided.

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,' 'non-religious,' or 'non-sectarian.' The local boards apparently have broad discretion in exercising this veto power.

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.

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, 82 S.Ct. 1261, 8 L.Ed.2d 601, 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, 82 S.Ct. at 1265. 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 can be distinguished from each other.' 20 N.Y.2d, at 122, 281 N.Y.S.2d, at 809, 228 N.E.2d, at 798. The New York Legislature felt that science was a non-sectarian 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).

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 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.' (At 560).

'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.)

Mr. Justice Jackson said, ' * *  * I should suppose it is a proper, if not an indispensable, part of preparation for a wordly life to know the roles that religion and religions have played in the tragic story of mankind.' People of State of Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 236, 68 S.Ct. 461, 477, 92 L.Ed. 649 (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.

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' (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 32-35 (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)) or as an effort by reactionary elements to regain control of that country (see G. Leinwand, The Pageant of World History, supra, at 512)? Is the expansion of 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.' People of State of Illinois ex rel. McCollum v. Board of Education, 333 U.S., at 237-238, 68 S.Ct., at 478. 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.

Father Peter O'Reilly put the matter succinctly when he disclosed what was happening in one Catholic school: '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. *  *  * "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."

'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.'

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.

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.

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 to provide those books for religious schools which the dominant religious group concludes best reflect the theocentric or other philosophy of the particular church.

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, 281 N.Y.S.2d, at 810, 228 N.E.2d, at 798. That 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:

'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, may force him to conform to any other      establishment in all cases whatsoever?' APPENDIX A TO OPINION OF DOUGLAS, J., DISSENTING.

CODE-220-399-2-NYSTL   REQ. NUMBER 6d

STREET      -VAN GUYSLING AVE.

CITY & STATE -SCHENECTADY, N.Y.

NO. COPIES  NAME OF BOOK 6d   TOTAL

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 non-sectarian 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 OF DOUGLAS, J., DISSENTING.

LETTER 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 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 well-being.

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.