DePaul Law Review Volume 18 Issue 2 Issue 2 & 3 Summer 1969 Article 29 Constitutional Law - Aid to Parochial Schools and the Establishment Clause - Everson to Allen: From Buses to Books and Beyond Thomas Coffey Follow this and additional works at: https://via.library.depaul.edu/law-review Recommended Citation Thomas Coffey, Constitutional Law - Aid to Parochial Schools and the Establishment Clause - Everson to Allen: From Buses to Books and Beyond, 18 DePaul L. Rev. 785 (1969) Available at: https://via.library.depaul.edu/law-review/vol18/iss2/29 This Case Notes is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Law Review by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. 1969] CASE NOTES bear watching to see if a realistic system of loss distribution will be formu- lated through the adoption of both contribution and comparative negligence. If contribution is adopted, third party practice in Illinois will be ready. William Tymm CONSTITUTIONAL LAW-AID TO PAROCHIAL SOHOOLS AND THE ESTABLISHMENT CLAUSE-EVERSON TO ALLEN: FROM BUSES TO BOOKS AND BEYOND Section 701 of the Education 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 twelve upon the individual request of any student in a public or private school.' Only textbooks which are required for one semester or more in a particular class and those textbooks which are either designated for use in a public school in the state or approved by a board of education may be lent.2 Plaintiffs, members of local school boards, sought a declaratory judgment that the statutory requirement was invalid as viola- tive of the state3 and federal constitutions.4 It was their contention that the lending of textbooks by the State of New York free of charge to students attending parochial schools amounted to an establishment of religion and that the requirement of paying taxes to provide textbooks for such students inhibited plaintiffs' free exercise of religion. In a 4-3 decision the New York Court of Appeals held that the statute violated neither the state nor the federal constitution.5 The United States Supreme Court, concerned only with the federal constitutional question, affirmed the decision of the Court of Appeals. Board of Education v. Allen, 392 U.S. 236 (1968). The "primary purpose and effect" test first adopted by the United States Supreme Court in Abington Township v. Schempp6 formed the basis of the majority opinion. The Court considered section 701 of New York's educa- tion law to have a secular legislative purpose and primary effect which neither advanced nor inhibited religion. 7 In 1965 the New York legislature in amending section 701 stated the purpose for the adoption of the legisla- I N. Y. EDUC. LAW § 701(3) (McKinney 1968). 2 N. Y. EDUC. LAW § 701(3) (McKinney 1968). 3 N. Y. CONST. art. 11, § 4 (1894). 4 U. S. CONST. amend. I. 5 Board of Educ. v. Allen, 20 N.Y.2d 109, 228 N.E.2d 791 (1967). 6 374 U.S. 203 (1963). 7 Board of Educ. v. Allen, 392 U.S. 236, 243 (1968). DE PAUL LAW REVIEW [Vol. XVIII tion: "The public welfare and safety require that the state and local com- munities give assistance to educational programs which are important to our own national defense and general welfare of the state."s The Court adQpted the legislature's opinion: "The express purpose of section 701 was stated by the New York legislature to be the furtherance of the educational opportunities available to the young."9 To establish a permissible primary effect, the "child benefit" theory adopted by the Court in Cochran v. Louisiana State Board of Education'° and subsequently approved in Everson v. Board of Education" was again employed by the Court in Allen. 12 The Court found that no financial benefit accrued to any of the private schools as a result of the legislation." Prior to the enactment of the statute, none of the private schools in question provided free textbooks for their students. Books were paid for by the parents of the children; ownership remained in the state. "The financial benefit is to the parents and children. .. 14 Actual secondary effects were recognized by the Court as flowing from the statute: "Perhaps free books make it more likely that some children choose to attend a sectarian school. ...15 But this effect, although viewed as supporting religion, did not exist to an unconstitutional degree. 16 Although it was impliedly rec- ognized that there could be other collateral effects of the statute which could exist to an unconstitutional degree,1 7 the Court was not concerned with these. What were held to be critical were the "necessary effects of the statute that are contrary to its stated purpose."' 8 The Court found none. There was, however, one suggested effect of section 701 which was not sus- ceptible to cursory determination, the consideration of which consumed the major portion of the Court's opinion. It was posited and accepted that books are critical to the teaching process, and in a sectarian school, that the teach- ing process is employed to teach religion.' 9 Presumably, if the entire teach- 8 [19651 N. Y. Sess. Laws, ch. 320, § 1. 9 Supra note 7. 10 281 U.S. 370 (1930). 11 330 U,S. 1 (1947). 12 Board of Educ. v. Allen, 392 U.S. 236, 243 (1968). 13 Id. at 244. 14 Id. 15 Id. 16 Id. 17 Id. at 243. 18 Id. 19 Id. For a recent appraisal of the continued importance of religious education in Catholicism, see THE DOCUMENTS OF VATICAN II 642-48 (W. Abbott ed. 1966). 1969] CASE NOTES ing process in a parochial school were utilized to teach religion, textbooks furnished by the state regardless of their content would, consequently, be used to teach religion. This would amount to an establishment of religion contrary to the first amendment. The Supreme Court did not find that all teaching in parochical schools was designed to teach religion; but rather, it acknowledged that as a result of previous decisions it had recognized that religious schools pursue two goals: religious instruction and secular education. 20 The Court then took a decisive step forward, declaring that the religious function and the secular function could be separated in a given institution, such that governmental aid could be given to the secular without resultant unconstitutionality. We cannot agree . 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 the public are in fact instrumental in the teaching of religion. 21 The significance of the Supreme Court's opinion in Board of Education v. Allen 2 is twofold. Governmental aid to education which includes secular aid to parochial schools has been approved as a constitutional primary pur- pose of legislation.23 Further, this aid may be designed to support the secular aspect of parochial education without effecting an unconstitutional degree of governmental support of religion. 24 In addition, the Court continues to limit aid to these institutions to that aid which qualifies under the "child 25 benefit" theory. While the majority opinion takes an analytical approach to the problem of state aid to secular schools, discussing the type, purpose and effect of the aid, the minority opinions of Justices Black, Douglas, and Fortas take a more absolute approach. It is their apparent contention that any aid by the state to a secular institution is unconsitutional regardless of degree. The "primary purpose and effect" test is uniformly rejected and in its place is substituted a "possible purpose and effect" test. All three dissenters contend that if the inherent nature of the activity involved could possibly admit of a purpose or effect that would advance or inhibit religion, then the activity is unconstitutional. A statement in Justice Black's opinion is characteristic of this attitude: The First Amendment's bar to establishment of religion must preclude a State 20 Board of Educ. v. Allen, 392 U.S. 236, 245 (1968). 21 Id. 22 Id. at 243. 23 Id. 24 Id. at 243-44. 25 Id. DE PAUL LAW REVIEW [Vol. XVIII from using funds levied from all of its citizens to purchase books for use by sectarian schools, which, although "secular," realistically will in some way inevitably tend to propogate the religious views of the favored sect. 26 He again expressed his fear of secondary effects when he stated,"... it is nearly always by insidious approaches that the citadels of liberty are most '27 successfully attacked. Justice Douglas described at length books on various subjects which could be used to teach religion. He suggested that this type of book could ulti- mately be provided by the state for secular schools. He did not consider the absolute direction of the statute to provide only secular textbooks. Nor did he indicate whether any books similar to those he suggested managed to slip 28 through the rigorous screen established by the statute. Justice Fortas termed the statute a "transparent camouflage" by which the state provided sectarian schools with sectarian textbooks. 29 His sole objection was to the involvement of religious authorities in the selection of the material 0 It appears from his opinion that he considered this condi- tion fatal to the legislation. The opinions of the minority Justices stand starkly in the face of precedent and the continually developing trend toward increased aid to parochial schools under constitutional approval.