Lemon v. Kurtzman/Concurrence Douglas

MR. JUSTICE DOUGLAS, whom MR. JUSTICE BLACK joins, concurring.

While I join the opinion of the Court, I have expressed at some length my views as to the rationale of today's decision in these three cases. [p626]

They involve two different statutory schemes for providing aid to parochial schools. Lemon deals with the Pennsylvania Nonpublic Elementary and Secondary Education Act, Laws 1968, Act No. 109. By its terms, the Pennsylvania Act allows the State to provide funds directly to private schools to purchase "secular educational service" such as teachers' salaries, textbooks, and educational materials. Pa.Stat.Ann., Tit. 24, § 5604 (Supp. 1971). Reimbursement for these services may be made only for courses in mathematics, modern foreign languages, physical science, and physical education. Reimbursement is prohibited for any course containing subject matter "expressing religious teaching, or the morals or forms of worship of any sect." § 5603 (Supp. 1971). To qualify, a school must demonstrate that its pupils achieve a satisfactory level of performance in standardized tests approved by the Superintendent of Public Instruction, and that the textbooks and other instructional materials used in these courses have been approved by the Superintendent of Public Instruction. The three-judge District Court below upheld this statute against the argument that it violates the Establishment Clause. We noted probable jurisdiction. 397 U.S. 1034.

The DiCenso cases involve the Rhode Island Salary Supplement Act, Laws 1969, c. 246. The Rhode Island Act authorizes supplementing the salaries of teachers of secular subjects in nonprofit private schools. The supplement is not more than 15% of an eligible teacher's current salary, but cannot exceed the maximum salary paid to teachers in the State's public schools. To be eligible, a teacher must teach only those subjects offered in public schools in the State, must be certified in substantially the same manner as teachers in public schools, and may use only teaching materials which are used in the public schools. Also the teacher must agree in writing [p627] "not to teach a course in religion for so long as or during such time as he or she receives any salary supplements." R.I.Gen.Laws Ann. § 16-51-3 (Supp. 1970). The schools themselves must not be operated for profit, must meet state educational standards, and the annual per-student expenditure for secular education must not equal or exceed "the average annual per student expenditure in the public schools in the state at the same grade level in the second preceding fiscal year." § 16-51-2 (Supp. 1970). While the Rhode Island Act, unlike the Pennsylvania Act, provides for direct payments to the teacher, the three-judge District Court below found it unconstitutional because it "results in excessive government entanglement with religion." Probable jurisdiction was noted, and the cases were set for oral argument with the other school cases. 400 U.S. 901.

In Walz v. Tax Commission, 397 U.S. 664, 674, the Court in approving a tax exemption for church property said:

"Determining that the legislative purpose of tax exemption is not aimed at establishing, sponsoring, or supporting religion does not end the inquiry, however. We must also be sure that the end result -- the effect -- is not an excessive government entanglement with religion."

There is, in my view, such an entanglement here. The surveillance or supervision of the States needed to police grants involved in these three cases, if performed, puts a public investigator into every classroom and entails a pervasive monitoring of these church agencies by the secular authorities. Yet if that surveillance or supervision does not occur, the zeal of religious proselytizers promises to carry the day and make a shambles of the Establishment Clause. Moreover, when taxpayers of [p628] many faiths are required to contribute money for the propagation of one faith, the Free Exercise Clause is infringed.

The analysis of the constitutional objections to these two state systems of grants to parochial or sectarian schools must start with the admitted and obvious fact that the raison d'etre of parochial schools is the propagation of a religious faith. They also teach secular subjects, but they came into existence in this country because Protestant groups were perverting the public schools by using them to propagate their faith. The Catholics naturally rebelled. If schools were to be used to propagate a particular creed or religion, then Catholic ideals should also be served. Hence, the advent of parochial schools.

By 1840, there were 200 Catholic parish schools in the United States. By 1964, there were 60 times as many. Today, 57% of the 9,000 Catholic parishes in the country have their church schools. "[E]very diocesan chancery has its school department, and enjoys a primacy of status." The parish schools indeed consume 40% to 65% of the parish's total income. The parish is so "school-centered" that "[t]he school almost becomes the very reason for being."

Early in the 19th century, the Protestants obtained control of the New York school system and used it to promote reading and teaching of the Scriptures as revealed in the King James version of the Bible. The contests [p629] between Protestants and Catholics, often erupting into violence including the burning of Catholic churches, are a twice-told tale; the Know-Nothing Party, which included in its platform "daily Bible reading in the schools," carried three States in 1854 -- Massachusetts, Pennsylvania, and Delaware. Parochial schools grew, but not Catholic schools alone. Other dissenting sects established their own schools -- Lutherans, Methodists, Presbyterians, and others. But the major force in shaping the pattern of education in this country was the conflict between Protestants and Catholics. The Catholics logically argued that a public school was sectarian when it taught the King James version of the Bible. They therefore wanted it removed from the public schools, and, in time, they tried to get public funds for their own parochial schools.

The constitutional right of dissenters to substitute their parochial schools for public schools was sustained by the Court in Pierce v. Society of Sisters, 268 U.S. 510.

The story of conflict and dissension is long and well known. The result was a state of so-called equilibrium, where religious instruction was eliminated from public schools and the use of public funds to support religious schools was deemed to be banned.

But the hydraulic pressures created by political forces and by economic stress were great, and they began to [p630] change the situation. Laws were passed -- state and federal -- that dispensed public funds to sustain religious schools and the plea was always in the educational frame of reference: education in all sectors was needed, from languages to calculus to nuclear physics. And it was forcefully argued that a linguist or mathematician or physicist trained in religious schools was just as competent as one trained in secular schools.

And so we have gradually edged into a situation where vast amounts of public funds are supplied each year to sectarian schools.

And the argument is made that the private parochial school system takes about $9 billion a year off the back of government -- as if that were enough to justify violating the Establishment Clause.

While the evolution of the public school system in this country marked an escape from denominational control, and was therefore admirable as seen through the eyes of those who think like Madison and Jefferson, it has disadvantages. The main one is that a state system may attempt to mold all students alike according to the views of the dominant group, and to discourage the emergence of individual idiosyncrasies.

Sectarian education, however, does not remedy that condition. The advantages of sectarian education relate solely to religious or doctrinal matters. They give the [p631] church the opportunity to indoctrinate its creed delicately and indirectly, or massively through doctrinal courses.

Many nations follow that course: Moslem nations teach the Koran in their schools; Sweden vests its elementary education in the parish; Newfoundland puts its school system under three superintendents -- one from the Church of England, one from the Catholic church, one from the United Church. In Ireland, the public schools are under denominational managership -- Catholic, Episcopalian, Presbyterian, and Hebrew.

England puts sectarian schools under the umbrella of its school system. It finances sectarian education; it exerts control by prescribing standards; it requires some free scholarships; it provides nondenominational membership on the board of directors.

The British system is, in other words, one of surveillance over sectarian schools. We too have surveillance over sectarian schools, but only to the extent of making sure that minimum educational standards are met, viz., competent teachers, accreditation of the school for diplomas, the number of hours of work and credits allowed, and so on.

But we have never faced, until recently, the problem of policing sectarian schools. Any surveillance to date has been minor, and has related only to the consistently unchallenged matters of accreditation of the sectarian school in the State's school system.

The Rhode Island Act allows a supplementary salary to a teacher in a sectarian school if he or she "does not teach a course in religion." [p632]

The Pennsylvania Act provides for state financing of instruction in mathematics, modern foreign languages, physical science, and physical education, provided that the instruction in those courses "shall not include any subject matter expressing religious teaching, or the morals or forms of worship of any sect."

Public financial support of parochial schools puts those schools under disabilities with which they were not previously burdened. For, as we held in Cooper v. Aaron, 358 U.S. 1, 19, governmental activities relating to schools "must be exercised consistently with federal constitutional requirements." There we were concerned with equal protection; here we are faced with issues of Establishment of religion and its Free Exercise as those concepts are used in the First Amendment.

Where the governmental activity is the financing of the private school, the various limitations or restraints imposed by the Constitution on state governments come into play. Thus, Arkansas, as part of its attempt to avoid the consequences of Brown v. Board of Education, 347 U.S. 483, 349 U.S. 294, withdrew its financial support from some public schools and sent the funds instead to private schools. That state action was held to violate the Equal Protection Clause. Aaron v. McKinley, 173 F.Supp. 944, 952. We affirmed, ''sub nom. Faubus v. Aaron,'' 361 U.S. 197. Louisiana tried a like tactic, and it too was invalidated. Poindexter v. Louisiana Financial Assistance Commission, 296 F.Supp. 686. Again we affirmed. 393 U.S. 17. Whatever might be the result in case of grants to students, it is clear that, once [p633] one of the States finances a private school, it is duty-bound to make certain that the school stays within secular bounds and does not use the public funds to promote sectarian causes.

The government may, of course, finance a hospital though it is run by a religious order, provided it is open to people of all races and creeds. Bradfield v. Roberts, 175 U.S. 291. The government itself could enter the hospital business, and it would, of course, make no difference if its agents who ran its hospitals were Catholics, Methodists, agnostics, or whatnot. For the hospital is not indulging in religious instruction or guidance or indoctrination. As Mr. Justice Jackson said in Everson v. Board of Education, 330 U.S. 1, 26 (dissenting):

"[Each State has] great latitude in deciding for itself, in the light of its own conditions, what shall be public purposes in its scheme of things. It may socialize utilities and economic enterprises and make taxpayers' business out of what conventionally had been private business. It may make public business of individual welfare, health, education, entertainment or security. But it cannot make public business of religious worship or instruction, or of attendance at religious institutions of any character."

The reason is that given by Madison in his Remonstrance:

"[T]he same authority which can force a citizen to contribute three pence only of his property for [p634] the support of any one establishment, may force him to conform to any other establishment. . .."

When Madison, in his Remonstrance, attacked a taxing measure to support religious activities, he advanced a series of reasons for opposing it. One that is extremely relevant here was phrased as follows:

"[I]t will destroy that moderation and harmony which the forbearance of our laws to intermeddle with Religion, has produced amongst its several sects."

Intermeddling, to use Madison's word, or "entanglement," to use what was said in Walz, has two aspects. The intrusion of government into religious schools through grants, supervision, or surveillance may result in establishment of religion in the constitutional sense when what the State does enthrones a particular sect for overt or subtle propagation of its faith. Those activities of the State may also intrude on the Free Exercise Clause by depriving a teacher, under threats of reprisals, of the right to give sectarian construction or interpretation of, say, history and literature, or to use the teaching of such subjects to inculcate a religious creed or dogma.

Under these laws, there will be vast governmental suppression, surveillance, or meddling in church affairs. As I indicated in Tilton v. Richardson, post, p. 689, decided this day, school prayers, the daily routine of parochial schools, must go if our decision in Engel v. Vitale, 370 U.S. 421, is honored. If it is not honored, then the state has established a religious sect. Elimination of prayers is only part of the problem. The curriculum presents subtle and difficult problems. The constitutional mandate can in part be carried out by censoring the curricula. What is palpably a sectarian course can be marked for [p635] deletion. But the problem only starts there. Sectarian instruction, in which, of course, a State may not indulge, can take place in a course on Shakespeare or in one on mathematics. No matter what the curriculum offers, the question is, what is taught? We deal not with evil teachers, but with zealous ones who may use any opportunity to indoctrinate a class.

It is well known that everything taught in most parochial schools is taught with the ultimate goal of religious education in mind. Rev. Joseph H. Fichter, S.J., stated in Parochial School: A Sociological Study 86 (1958):

It is a commonplace observation that, in the parochial school, religion permeates the whole curriculum, and is not confined to a single half-hour period of the day. Even arithmetic can be used as an instrument of pious thoughts, as in the case of the teacher who gave this problem to her class:

"If it takes forty thousand priests and a hundred and forty thousand sisters to care for forty million Catholics in the United States, how many more priests and sisters will be needed to convert and care for the hundred million non-Catholics in the United States?"

One can imagine what a religious zealot, as contrasted to a civil libertarian, can do with the Reformation [p636] or with the Inquisition. Much history can be given the gloss of a particular religion. I would think that policing these grants to detect sectarian instruction would be insufferable to religious partisans, and would breed division and dissension between church and state.

This problem looms large where the church controls the hiring and firing of teachers:

"[I]n the public school, the selection of a faculty and the administration of the school usually rests with a school board, which is subject to election and recall by the voters, but in the parochial school, the selection of a faculty and the administration of the school is in the hands of the bishop alone, and usually is administered through the local priest. If a faculty member in the public school believes that he has been treated unjustly in being disciplined or dismissed, he can seek redress through the civil court, and he is guaranteed a hearing. But if a faculty member in a parochial school is disciplined or dismissed, he has no recourse whatsoever. The word of the bishop or priest is final, even without explanation if he so chooses. The tax payers have a voice in the way their money is used in the public school, but the people who support a parochial school have no voice at all in such affairs."

L. Boettner, Roman Catholicism 375 (1962).

Board of Education v. Allen, 392 U.S. 236, dealt only with textbooks. Even so, some had difficulty giving approval. Yet books can be easily examined independently of other aspects of the teaching process. In the present cases, we deal with the totality of instruction destined to be sectarian, at least in part, if the religious character of the school is to be maintained. A school which operates to commingle religion with other instruction plainly cannot completely secularize its instruction. [p637] Parochial schools, in large measure, do not accept the assumption that secular subjects should be unrelated to religious teaching.

Lemon involves a state statute that prescribes that courses in mathematics, modern foreign languages, physical science, and physical education "shall not include any subject matter expressing religious teaching, or the morals or forms of worship of any sect." The subtleties involved in applying this standard are obvious. It places the State astride a sectarian school and gives it power to dictate what is or is not secular, what is or is not religious. I can think of no more disrupting influence apt to promote rancor and ill-will between church and state than this kind of surveillance and control. They are the very opposite of the "moderation and harmony" between church and state which Madison thought was the aim and purpose of the Establishment Clause.

The DiCenso cases have all the vices which are in Lemon, because the supplementary salary payable to the teacher is conditioned on his or her not teaching "a course in religion."

Moreover, the DiCenso cases reveal another, but related, knotty problem presented when church and state launch one of these educational programs. The Bishop of Rhode Island has a Handbook of School Regulations for the Diocese of Providence.

The school board supervises "the education, both spiritual and secular, in the parochial schools and diocesan high schools."

The superintendent is an agent of the bishop, and he interprets and makes "effective state and diocesan educational directives." [p638]

The pastors visit the schools and "give their assistance in promoting spiritual and intellectual discipline."

Community supervisors "assist the teacher in the problems of instruction," and these duties are:

I. To become well enough acquainted with the teachers of their communities so as to be able to advise the community superiors on matters of placement and reassignment.

II. To act as liaison between the provincialate and the religious teacher in the school.

III. To cooperate with the superintendent by studying the diocesan school regulations and to encourage the teachers of their community to observe these regulations.

IV. To avoid giving any orders or directions to the teachers of their community that may be in conflict with diocesan regulations or policy regarding curriculum, testing, textbooks, method, or administrative matters.

V. To refer questions concerning school administration beyond the scope of their own authority to the proper diocesan school authorities, namely, the superintendent of schools or the pastor.

The length of the school day includes Mass:

"A full day session for Catholic schools at the elementary level consists of five and one-half hours, exclusive of lunch and Mass, but inclusive of recess for pupils in grades 1-3."

A course of study or syllabus prescribed for an elementary or secondary school is "mandatory." [p639]

Religious instruction is provided as follows:

A. Systematic religious instructions must be provided in all schools of the diocese.

B. Modern catechetics requires a teacher with unusual aptitudes, specialized training, and such function of the spirit that his words possess the force of a personal call. He should be so filled with his subject that he can freely improvize in discussion, dramatization, drawing, song, and prayer. A teacher so gifted and so permeated by the message of the Gospel is rare. Perhaps no teacher in a given school attains that ideal. But some teachers come nearer it than others. If our pupils are to hear the Good News so that their minds are enlightened and their hearts respond to the love of God and His Christ, if they are to be formed into vital, twentieth-century Christians, they should receive their religious instructions only from the very best teachers.

C. Inasmuch as the textbooks employed in religious instruction above the fifth grade require a high degree of catechetical preparation, religion should be a departmentalized subject in grade six through twelve.

Religious activities are provided, through observance of specified holy days and participation in Mass.

"Religious formation" is not restricted to courses, but is achieved "through the example of the faculty, the tone of the school . . . and religious activities."

No unauthorized priest may address the students.

Retreats and days of recollection form an integral part of our religious program in the Catholic schools.

Religious factors are used in the selection of students:

Although wealth should never serve as a criterion for accepting a pupil into a Catholic school, all other [p640] things being equal, it would seem fair to give preference to a child whose parents support the parish. Regular use of the budget, rather than the size of the contributions, would appear equitable. It indicates whether parents regularly attend Mass.

These are only highlights of the handbook. But they indicate how pervasive is the religious control over the school, and how remote this type of school is from the secular school. Public funds supporting that structure are used to perpetuate a doctrine and creed in innumerable and in pervasive ways. Those who man these schools are good people, zealous people, dedicated people. But they are dedicated to ideas that the Framers of our Constitution placed beyond the reach of government.

If the government closed its eyes to the manner in which these grants are actually used, it would be allowing public funds to promote sectarian education. If it did not close its eyes, but undertook the surveillance needed, it would, I fear, intermeddle in parochial affairs in a way that would breed only rancor and dissension.

We have announced over and over again that the use of taxpayers' money to support parochial schools violates the First Amendment, applicable to the States by virtue of the Fourteenth.

We said in unequivocal words in Everson v. Board of Education, 330 U.S. 1, 16,

"No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion."

We reiterated the same idea in Zorach v. Clauson, 343 U.S. 306, 314, and in McGowan v. Maryland, 366 U.S. 420, 443, and in Torcaso v. Watkins, 367 U.S. 488, 493. We repeated the same idea in McCollum v. Board of Education, 333 U.S. 203, 210, and added that a State's [p641] tax-supported public schools could not be used "for the dissemination of religious doctrines," nor could a State provide the church "pupils for their religious classes through use of the State's compulsory public school machinery." Id. at 212.

Yet, in spite of this long and consistent history, there are those who have the courage to announce that a State may nonetheless finance the secular part of a sectarian school's educational program. That, however, makes a grave constitutional decision turn merely on cost accounting and bookkeeping entries. A history class, a literature class, or a science class in a parochial school is not a separate institute; it is part of the organic whole which the State subsidizes. The funds are used in these cases to pay or help pay the salaries of teachers in parochial schools; and the presence of teachers is critical to the essential purpose of the parochial school, viz., to advance the religious endeavors of the particular church. It matters not that the teacher receiving taxpayers' money only teaches religion a fraction of the time. Nor does it matter that he or she teaches no religion. The school is an organism living on one budget. What the taxpayers give for salaries of those who teach only the humanities or science without any trace of proselytizing enables the school to use all of its own funds for religious training. As Judge Coffin said, 316 F.Supp. 112, 120, we would be blind to realities if we let "sophisticated bookkeeping" sanction "almost total subsidy of a religious institution by assigning the bulk of the institution's expenses to ‘secular' activities." And sophisticated attempts to avoid the Constitution are just as invalid as simple-minded ones. Lane v. Wilson, 307 U.S. 268, 275.

In my view, the taxpayers' forced contribution to the [p642] parochial schools in the present cases violates the First Amendment.

MR. JUSTICE MARSHALL, who took no part in the consideration or decision of No. 89, see ante, p. 625, while intimating no view as to the continuing vitality of Everson v. Board of Education, 330 U.S. 1 (1947), concurs in MR. JUSTICE DOUGLAS' opinion covering Nos. 569 and 570.

1A. Stokes & L. Pfeffer, Church and State in the United States 229 (1964).

2Ibid.

3Deedy, Should Catholic Schools Survive?, New Republic, Mar. 13, 1971, pp. 15, 16.

4Id. at 17.

5Ibid.

6Stokes & Pfeffer, supra, n. 1, at 231.

7Id. at 231-239.

8Id. at 237.

10R. Butts, The American Tradition in Religion and Education 115 (1950).

11Id. at 118. And see R. Finney, A Brief History of the American Public School 44-45 (1924).

12See E. Knight, Education in the United States 3, 314 (3d rev. ed.1951); E. Cubberley, Public Education in the United States 164 et seq. (1919).

13In 1960, the Federal Government provided $500 million to private colleges and universities. Amounts contributed by state and local governments to private schools at any level were negligible. Just one decade later, federal aid to private colleges and universities had grown to $2.1 billion. State aid had begun and reached $100 million. Statistical Abstract of the United States 105 (1970). As the present cases demonstrate, we are now reaching a point where state aid is being given to private elementary and secondary school as well as colleges and universities.

14Deedy, supra, n. 3, at 16.

15S.C.urtis, History of Education in Great Britain 316-383 (5th ed.1963); W. Alexander, Education in England, c. II (2d ed.1964).

16See Pierce v. Society of Sisters, 268 U.S. 510, 534; Meyer v. Nebraska, 262 U.S. 390, 402.

17Grants to students in the context of the problems of desegregated public schools have without exception been stricken down as tools of the forbidden discrimination. See Griffin v. School Bd. of Prince Edward County, 377 U.S. 218; Hall v. St. Helena Parish School Bd., 197 F.Supp. 649, aff'd, 368 U.S. 515; Lee v. Macon County Bd., 267 F.Supp. 458, aff'd sub nom. Wallace v. United States, 389 U.S. 215; Poindexter v. Louisiana Financial Assistance Commission, 275 F. Supp. 833, aff'd, 389 U.S. 571; Brown v. South Carolina State Bd., 296 F.Supp. 199, aff'd, 393 U.S. 222; Coffey v. State Educ. Finance Commission, 296 F.Supp. 1389; Lee v. Macon County Bd., 31 F.Supp. 743.

18Remonstrance ¶ 3. The Memorial and Remonstrance Against Religious Assessments has been reproduced in appendices to the opinion of Rutledge, J., in Everson, 330 U.S. at 63, and to that of DOUGLAS, J., in Walz, 397 U.S. at 719.

19Remonstrance ¶ 11.

20In the parochial schools, Roman Catholic indoctrination is included in every subject. History, literature, geography, civics, and science are given a Roman Catholic slant. The whole education of the child is filled with propaganda. That, of course, is the very purpose of such schools, the very reason for going to all of the work and expense of maintaining a dual school system. Their purpose is not so much to educate, but to indoctrinate and train, not to teach Scripture truths and Americanism, but to make loyal Roman Catholics. The children are regimented, and are told what to wear, what to do, and what to think.

L. Boettner, Roman Catholicism 360 (1962).

21It was said on oral argument that the handbook shown as an exhibit in the record had been superseded. The provisions hereinafter quoted are from the handbook as it reads after all the deletions to which we were referred.

22The use of school time to participate in the Holy Sacrifice of the Mass on the feasts of All Saints, Ascension, and the patronal saint of the parish or school, as well as during the 40 Hours Devotion, is proper and commendable.