71-26,943 SMITH, Michael Robert, 1939- THE LEGALITY OF USING PUBLIC TUDDS FOR RELIGIOUS SCHOOLS AS INTERPRETED BY" FEDERAL COURT DECISIONS. University of North Carolina at Greensboro., Ed.D., 1971 Education, religion University Microfilms, A XEROX. Company, Ann Arbor, Michigan © 29*71. MICIUEL ROBERT SMITH ALL RIGHTS RESERVED THE LEGALITY OF USING PUBLIC FUNDS FOR RELIGIOUS SCHOOLS AS INTERPRETED BY FEDERAL COURT DECISIONS by Michael Robert Smith A Dissertation Submitted to the Faculty of the Graduate School at The University of North Carolina at Greensboro in Partial Fulfillment of the Requirements for the Degree Doctor of Education Greensboro February, 1971 Approved by fes&F#ation Adviser APPROVAL SHEET This dissertation has been approved by the following committee of the Faculty of the Graduate School at The University of North Carolina at Greensboro. Dissertation Adviser Oral Examination Committee Members 9 * « r ~ (?- JLlIj March 12, 1971 Date of Examination ii SMITH, MICHAEL ROBERT. The Legality of Using Public Funds for Religious Schools as Interpreted "by Federal Court Decisions. (1971) Directed by: Dr. Thomas Joseph McCook:. pp. 388 The purpose of the study was to determine, as far as possible, the legality of using public tax funds for* the support of religious elementary and secondary schools in the fifty United States of .America through the perusal and analysis of: historical relationships between selected reli­ gions and governments, certain constitutional and statutory provisions, and, in particular, pertinent federal court decisions. The study is factual in its presentation; it deals with a legal question, and no attempt was made to relate it to social or economic factors. The writer sought to present an orderly arrangement of legal principles, and state and federal documents relating to the study. Data for each chapter were obtained "by a variety of methods, each unique to the particular chapter. The introduction to Chapter I resulted from a review of the literature. Chapter II involved historical research derived from pertinent books, encyclopedias, and historical documents. The research for that chapter was guided mainly by judicial references to earlier periods, included in the various court cases. The case of Horace Mann league v. Board of Public "Works, 2h2 Md. 61£ (1966) was particularly instrumental. Chapter III entailed a thorough study of both the federal and state constitutional and statutory provisions related to the separa­ tion of church and state. All provisions were included in Appendix B for Chapter III. In Chapter IV a cover letter and data sheet were nailed to the attorneys general of each state. The cover letter explained the •writer's task and solicited the assistance of the reader. The data sheet, in ten separate questions, asked for the codes to the state's laws (if any) •which provide all types of public assistance to elementary and secondary parochial schools or parochial school students. Thirty-four resporses were received from the attorneys general; whereupon letters and data sheets were mailed to the state superintendents of public instruction in the remaining 16 states. When all of those 16 states replied, the overall response was ICO percent. The codes to the state laws uere compiled, and all statutes were researched in the law library at The University of North Carolina at Chapel Hill. Also in Chapter IV, the United States Public Laws were researched for acts which provide federal assistance to parochial elementary and secondary schools or school students. The state and federal provisions were included in Appendix C for Chapter IV. In Chapter V, with the assistance of the American Digest System, National Reporter System, American Lav Reports, Corpus Juris Secundum, and other legal indexes, a complete listing of all federal court cases involving the rise of public funds for the support of religious schools or religious activities in pub­ lic schools was secured. Each case was thoroughly read with a vie-w toward its relationship to the study, and if relevant, reported in Chapter V. Based on the factual data set forth in the study, fourteen separate conclusions were deduced. The salient conclusions among the list -were: (a) the child is not merely the "creature of the state"—the parent has the right and high duty to determine the educational direction of his child; (b) since Roman Catholic bishops declared under canon law 137h that Catholic parents, under penalty of sin, must send their children to Catholic schools, unless excused from this obligation by their bishop, it should not be said that Catholic parents only follow their personal consciences in this matter; (c) it is proper for the court to investigate the character and environment under which education is conducted in a state supported religious school, if that same investigation is proper in a pub­ lic school; (d) under our law which mandates a secular public school system, it would be anomalous for the law to support secular teaching in a paro­ chial school where religious teaching is conducted in that same school; (e) the federal Constitution requires that laws neither "advance or inhi­ bit" religion; (f) where a statute fosters "excessive entanglement" be­ tween government and religion, the First Amendment is violated; (g) if the law financially supports secular teaching in a parochial school, but fails to guarantee the secularity of that teaching, it may establish a religion; if the secularity of that teaching is guaranteed, the law will become "excessively entangled" with religion, and violate the free exercise there­ of; (h) the direct use of public funds for religious schools is a violation of the Constitution of the United States of America. ACKNOWLEDGMENTS The writer wishes to express his appreciation to Dr. T. Joseph McCook for the helpful criticism and encouragement rendered during the process of this study. Other persons of assistance were Dr. Bert A. Goldman, Dr. George P. Grill, and Dr. Joseph E. Bryson. The writer also wishes to acknowledge a special debt of gratitude to Dr. Joseph E. Bryson. As an individual, as well as a great teacher, this man has instilled in the writer two indispensable qualities: a predilection for learning, and a high respect for the worth and dignity of other people. To his wife, Judee, the writer dedicates this study. iii TABLE OF CONTENTS CHAPTER PAGE I. INTRODUCTION 1 Purpose of the Study 1J> Method of Procedure .......... 15 Limitations of the Study - 17 Definition of Terms 17 Plan of Study 18 II. THE PHILOSOPHICAL AND HISTORICAL EELATIOMSHIP BETWEEN SELECTED RELIGIONS AND GOTERNNEITS 21 Until America 21 America 36 America: The Church arid State School Question U3 III. FEDERAL AND STATE PROVISIONS FOR THE SEPARATION OF CHURCH AND STATE ?2 Federal Provisions £2 State Provisions 5>!!> IV. A STUDY OF FEDERAL AND STATE CONSTITUTIONAL AID STATUTORY PROVISIONS PERMITTING- THE USE OT PUBIIC FUNDS FOR RELIGIOUS SCHOOLS 72 Federal Aid to Parochial Schools 72 National School Lunch Act of 19lt6 . 7b Federal Property and Administrative Services Act of 19h9 7h iv CHAPTER PAGE Agriculture Act of 195H Ih National Defense Education Act of 1958 75 Economic Opportunity Act of 1961; 75 Elementary and Secondary Education Act of 1965 76 Higher Education Act of 1965 77 Veteran's Readjustment Benefits Act of 1966 78 Child Nutrition Act of 1966 78 State Aid to Parochial Schools 78 Purchase of secular educational services laws 80 Other direct aid laws 8U Shared-time and driver education laws 85 Transportation and textbooks 87 Lunches and health services 90 Miscellaneous assistance 92 V. AM ANALYSIS OF FEDERAL COURT DECISIONS RELATIVE TO THE LEGALITY OF USING PUBLIC FUNDS FOR RELIGIOUS SCHOOLS ... 95 A Preface to the Cases 95 The Cases 98 Bradfield v. Roberts 98 Quick Bear v. Leupp 100 Meyer v. Nebraska 102 Frothingham v. Mellon 103 Pierce v. Society of Sisters 105 Cochran v. Louisiana State Board of Education 106 v CHAPTER PAGE Cantwell •v. Connecticut 107 E-yerson v. Board of Education 109 McCollum -v. Board of Education Ill Zorach v. Clausen 112 En gel v. 'Vitale llU Abington School District v. Schempp 115 Board of Education v. Allen 117 Flast v. Cohen 119 Lemon v. Kurtzman 121 DiCenso v. Robinson 123 Johnson v. Sanders 127 VI. SUMMARY AND CONCLUSIONS 130 Summary 130 Conclusions ll|0 BIBLIOGRAPHY D|? APPENDICES 1?U Appendix A for Chapter II 15# Appendix B for Chapter III 161 Appendix C for Chapter IV 239 Appendix D for Chapter 7 377 vi LIST OF TABLES TABLE PAGE I. States With Preambles; Which Preambles Invoke God's Favor or Express Gratitude $1 II. State Prohibitions Against Religious Tests as Qualifications for: Holding a Public Office, Being a "Witness, and Being Admitted to a Public School 6l III. State Prohibitions Against Interference With Freedom of Worship or Conscience 63 IV. State Prohibitions Against Requiring Church Attendance and Against the Establishment of Religion 65 V. State Prohibitions Against Requiring Support for Religious or Sectarian Institutions and Religious or Sectarian Schools 68 VI. Federal Acts and Types of Assistance to Elementary and Secondary Religious Schools 79 VH. States With Purchase of Secular Educational Services Laws and Other Direct Aid Laws 81 VIII. States Which Make Shared-Time or Driver Education Available to Elementary and/or Secondary Parochial Schools 86 IX. States Which Make Transportation and/or Textbooks Available to Elementary and/or Secondary Parochial Schools 88 vii TABLE PAGE X. States Which Make Lunches and/or Health Services Available to Elementary and/or Secondary Parochial Schools 91 IX. All States With Respective Types of Assistance to Elementary and Secondary Parochial Schools 93 viii CHAPTER I INTRODUCTION 1 CHAPTER I INTRODUCTION "Put away your gods and come and worship ours or we will kill you and your gods!"l Shades of sentiment behind Dostoyevsky's exclamation affected greatly the character of both public and religious schools in America.