Tilton v. Richardson/Dissent Douglas

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK and Mr. Justice MARSHALL concur, dissenting in part.

The correct constitutional principle for this case was stated by President Kennedy in 1961 when questioned as to his policy respecting aid to private and parochial schools:

'(T)he Constitution clearly prohibits aid to the school, to     parochial schools. I don't think there is any doubt of that.

'The Everson case, which is probably the most celebrated     case, provided only by a 5 to 4 decision was it possible for      a local community to provide bus rides to nonpublic school      children. But all through the majority and minority     statements on that particular question there was a very clear      prohibition against aid to the school direct. The Supreme     Court made its decision in the Everson case by determining      that the aid was to the child, not to the school. Aid to the     school is-there isn't any room for debate on that subject. It     is prohibited by the Constitution, and the Supreme Court has      made that very clear. And therefore there would be no     possibility of our recommending it.'

Taxpayer appellants brought this suit challenging the validity of certain expenditures, made by the Department of Health, Education, and Welfare, for the construction of (1) a library at Sacred Heart University, (2) a music, drama, and arts building at Annhurst College, (3) a library and a science building at Fairfield University, and (4) a laboratory at Albertus Magnus College. The complaint alleged that all of these institutions were controlled by religious orders and the Roman Catholic Diocese of Bridgeport,Conn., and that if the funds for construction were authorized by Title I of the Higher Education Facilities Act of 1964, as amended, 77 Stat. 363, 20 U.S.C. §§ 711-721 (1964 ed. and Supp. V), then that statute was unconstitutional because it violated the Establishment Clause. A three-judge District Court was convened and rejected appellants' claims.

Title I of the Higher Education Facilities Act of 1963 authorizes grants and loans up to 50% of the cost for the construction of undergraduate academic facilities in both public and private colleges and universities. A project is eligible if construction will result 'in an urgently needed substantial expansion of the institution's student enrollment capacity, capacity to provide needed health care to students or personnel of the institution, or capacity to carry out extension and continuing education programs on the campus of such institution.' 20 U.S.C. § 716 (1964 ed., Supp. V). The Commissioner of Education is authorized to prescribe basic criteria and is instructed to 'give special consideration to expansion of undergraduate enrollment capacity.' 20 U.S.C. § 717 (1964 ed., Supp. V).

Academic facilities are 'structures suitable for use as classrooms, laboratories, libraries, and related facilities necessary or appropriate for instruction of students, or for research * *  * programs.' Specifically excluded are facilities 'used or to be used for sectarian instruction or as a place for religious worship' or any facilities used 'primarily in connection with any part of the program of a school or department of divinity.' 20 U.S.C. § 751(a) (1964 ed., Supp. V). The United States retains a 20-year interest in the facilities and should a facility be used other than as an academic facility then the United States is entitled to recover an amount equal to the proportion of present value which the federal grant bore to the original cost of the facility. 20 U.S.C. § 754(b). According to a stipulation entered below, during the 20 years the Office of Education attempts to insure that facilities are used in the manner required by the Act primarily by on-site inspections. At the end of the 20-year period the federal interest in the facility ceases and the college may use it as it pleases. See 20 U.S.C. § 754(a).

The public purpose in secular education is, to be sure, furthered by the program. Yet the sectarian purpose is aided by making the parochial school system viable. The purpose is to increase 'student enrollment' and the students obviously aimed at are those of the particular faith now financed by taxpayers' money. Parochial schools are not beamed at agnostics, atheists, or those of a competing sect. The more sophisticated institutions may admit minorities; but the dominant religious character is not changed.

The reversion of the facility to the parrochial school at the end of 20 years is an outright grant, measurable by the present discounted worth of the facility. A gift of taxpayers' funds in that amount would plainly be unconstitutional. The Court properly bars it even though disguised in the form of a reversionary interest. See Lane v. Wilson, 307 U.S. 268, 275, 59 S.Ct. 872, 876, 83 L.Ed. 1281.

But the invalidation of this one clause cannot cure the constitutional infirmities of the statute as a whole. The Federal Government is giving religious schools a block grant to build certain facilities. The fact that money is given once at the beginning of a program rather than apportioned annually as in Lemon and DiCenso is without constitutional significance. The First Amendment bars establishment of a religion. And as I noted today in Lemon and DiCenso, this bar has been consistently interpreted from Everson v. Board of Education, 330 U.S. 1, 16, 67 S.Ct. 504, 511, 91 L.Ed. 711, through Torcaso v. Watkins, 367 U.S. 488, 493, 81 S.Ct. 1680, 1682, 6 L.Ed.2d 982, as meaning: '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.' Thus it is hardly impressive that rather than giving a smaller amount of money annually over a long period of years, Congress instead gives a large amount all at once. The plurality's distinction is in effect that small violations of the First Amendment over a period of years are unconstitutional (see Lemon and DiCenso) while a huge violation occurring only once is de minimis. I cannot agree with such sophistry.

What I have said in Lemon and in the DiCenso cases decided today is relevant here. The facilities financed by taxpayers' funds are not to be used for 'sectarian' purposes. Religious teaching and secular teaching are so enmeshed in parochial schools that only the strictest supervision and surveillance would insure compliance with the condition. Parochial schools may require religious exercises, even in the classroom. A parochial school operates on one budget. Money not spent for one purpose becomes available for other purposes. Thus the fact that there are no religious observances in federally financed facilities is not controlling because required religious observances will take place in other buildings. Our decision in Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601, held that a requirement of a prayer in public schools violated the Establishment Clause. Once these schools become federally funded they become bound by federal standards (Ivanhoe Irrig. Dist. v. McCracken, 357 U.S. 275, 296, 78 S.Ct. 1174, 1186, 2 L.Ed.2d 1313; Rosado v. Wyman, 397 U.S. 397, 427, 90 S.Ct. 1207, 1225, 25 L.Ed.2d 442 (concurring opinion); Simkins v. Moses H. Cone Memorial Hosp., 4 Cir., 323 F.2d 959, and accordingly adherence to Engel would require an end to required religious exercises. That kind of surveillance and control will certainly be obnoxious to the church authorities and if done will radically change the character of the parochial school. Yet if that surveillance is not searching and continuous, this federal financing is obnoxious under the Establishment and Free Exercise Clauses for the reasons stated in the companion cases.

In other words, surveillance creates an entanglement of government and religion which the First Amendment was designed to avoid. Yet after today's decision there will be a requirement of surveillance which will last for the useful life of the building and as we have previously noted, '(it) is hardly lack of due process for the Government to regulate that which it subsidizes.' Wickard v. Filburn, 317 U.S. 111, 131, 63 S.Ct. 82, 92, 87 L.Ed. 122. The price of the subsidy under the Act is violation of the Free Exercise Clause. Could a course in the History of Methodism be taught in a federally financed building? Would a religiously slanted version of the Reformation or Quebec politics under Duplessis be permissible? How can the Government know what is taught in the federally financed building without a continous auditing of classroom instruction? Yet both the Free Exercise Clause and academic freedom are violated when the Government agent must be present to determine whether the course content is satisfactory.

As I said in the Lemon and DeCenso cases, a parochial school is a unitary institution with subtle blending of sectarian and secular instruction. Thus the practices of religious schools are in no way affected by the minimal requirement that the government financed facility may not 'be used for sectarian instruction or as a place for religious worship.' Money saved from one item in the budget is free to be used elsewhere. By conducting religious services in another building, the school has-rent free-a building for nonsectarian use. This is not called Establishment simply because the government retains a continuing interest in the building for its useful life, even though the religious schools need never pay a cent for the use of the building.

Much is made of the need for public aid to church schools in light of their pressing fiscal problems. Dr. Eugene C. Blake of the Presbyterian Church, however, wrote in 1959:

'When one remembers that churches pay no inheritance tax     (churches do not die), that churches may own and operate      business and be exempt from the 52 percent corporate income      tax, and that real property used for church purposes (which      in some states are most generously construed) is tax exempt,      it is not unreasonable to prophesy that with reasonably      prudent management, the churches ought to be able to control      the whole economy of the nation within the predictable      future. That the growing wealth and property of the churches     was partially responsible for revolutionary expropriations of      church property in England in the sixteenth century, in      France in the eighteenth century, in Italy in the nineteenth      century, and in Mexico, Russia, Czechoslovakia and Hungary      (to name a few examples) in the twentieth century, seems      self-evident. A government with mounting tax problems cannot     be expected to keep its hands off the wealth of a rich church      forever. That such a revolution is always accompanied by anticlericalism and atheism should not be     surprising.'

The mounting wealth of the churches makes ironic their incessant demands on the public treasury. I said in my dissent in Walz v. Tax Comm'n, 397 U.S. 664, 714, 90 S.Ct. 1409, 1434, 25 L.Ed.2d 697:

'The religiously used real estate of the churches today     constitutes a vast domain. See M. Larson & C. Lowell, The     Churches: Their Riches, Revenues, and Immunities (1969). Their assets total over $141 billion and their annual income     at least $22 billion. Id., at 232. And the extent to which     they are feeding from the public trough in a variety of forms      is alarming. Id., c. 10.' See A. Balk, The Religion Business     (1968); 20 Church and State 8 (1967).

It is almost unbelievable that we have made the radical departure from Madison's Remonstrance memorialized in today's decision.

I dissent not because of any lack of respect for parochial schools but out of a feeling of despair that the respect which through history has been accorded the First Amendment is this day lost.

It should be remembered that in this case we deal with federal grants and with the command that 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.' The million-dollar grants sustained today put Madison's miserable 'three pence' to shame. But he even thought, as I do, that even a small amount coming out of the pocket of taxpayers and going into the coffers of a church was not in keeping with our constitutional ideal.

I would reverse the judgment below.