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PAGE 2—THE BULLETIN, October 14, 1961
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Various Experts Believe
Constitution Does Not Ban
U. S. Aid To Church Schools
Following is the fourth and
filial in a series of articles on
the debate over Federal aid to
education for parochial and oth
er private schools. The’ author,
whose background includes
some fifteen hooks in the fields
of philosophy, religion and edu
cation, is research professor of
theology at the University of
Notre Dame.
By Father John A. O'Brien
(NCWC News Service)
What does Prof. Arthur E.
Sutherland say about the con
stitutionality of public aid in
the form of long-term loans to
public and io nonprofit private
schools for school purposes
generally?
An eminent authority on
constitutional law, Prof. Suth
erland of Harvard was asked
by Rep. John W. McCormack
for his judgment on this mat
ter. After studying the matter
with great care, Prof. Suther
land reaches the conclusion
that there is no clear consti
tutional prohibition against
such aid.
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“Assuming,” he concludes
“that the existing Federal aid
to education is constitutional—
which seems to me a reason
able assumption — the distinc
tion between these existing
programs and the proposal
which I discuss is not suffi
ciently evident to persuade me
that a measure providing for
long-term loans of the charac
ter which I have described, to
aid education in basic lay sub
jects, would conflict with the
provisions of the First Amend
ment.”
What does Dr. Robert M.
Hutchins say on this point?
The president of the Center
for the Study of Democratic
Institutions and the former
chancellor of the University of
Chicago and dean of the Yale
University Law School pointed
out that tax exemption is giv
en private schools because
they are performing a public
service. “If they are,” he said,
“and if this is a service that
would otherwise have to be
performed by the public, then
there is no reason why pri
vate organizations should not
receive appropriate assistance
from the government.”
Objections raised against in
cluding such schools in the
Federal program of aid to edu
cation, he characterized as “in
competent, irrelevant and im
material.” He cited the G.I.
Bill that gave thousands of
service men Federal funds to
attend the college of their
choice, public or private.
Have other noted authorities
expressed similar opinions?
Yes, hundreds have. Exam
ple: Twenty-one prominent
jurists, including former Attor
ney General James P. McGra-
nery, were requested to pre
pare an opinion on this sub
ject. After painstaking study,
they reached the unanimous
conclusion that there is no
thing in the Constitution
which prevents public funds
from being used to pay for the
public service rendered by
nonprofit schools in teaching
pupils all the secular subjects
taught in the public school.
“Once- Congress decides, that
Federal aid is necessary,” they
say, “there should be full
equality of treatment with re
spect to all children whether
they be enrolled in public, pri
vate, or church-related schools.
This is a matter of high prin
ciple. The parochial schools of
this country are discharging a
public service. They provide
an educational program which
fully satisfies present govern
mental standards for compe
tence.
“The state and all the citi
zens thereof benefit from this
educational effort. If massive
Federal expenditures are to be
made from the tax collections
of all the people, this aid
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should not go only to a select
segment, however large, of the
population. To the extent that,
parochial schools provide a
recognized and accredited sec
ular education they are entitl
ed to equal treatment.”
Did not the First Amend
ment erect a wall of separa
tion, high and impenetrable,
between Church and State?
Yes, but not in all respects.
In the Zorach case Justice
Douglas said: “The First
Amendment, however, does
not say that in every and all
respects there shall be a sep
aration of Church and State.
Rather, it studiously defines
the manner, the specific ways,
in which there shall be no
concert or union or dependen
cy one on the other. That is
the common sense of the mat
ter. Otherwise the state and
religion would be aliens to
each other — hostile, suspi
cious, and even unfriendly.”
What do other eminent au
thorities say on this matter?
Wilbur G. Katz, former dean
of the University of Chicago
Law School and an expert on
constitutional law, points out:
“The basic American principle
of Church-State relations is
not separation but religious
liberty . . . Separation ordi
narily promotes religious free
dom; it is defensible so long
as ‘it does, and only so long “
In his well-reasoned dissent
in the McCollum case, Justice
Reed suggests that the Court
should return to the language
of the Amendment and in
terpret it rather than Jeffer
son’s phrase, “wall of separa
tion.” It is a wise suggestion
for the meaning of the meta
phor has become so confused
that many can’t distinguish
the figure of speech from the
principles involved.
What does the First Amend
ment really mean?
Simply that, in ordinary cir
cumstances, the government
may not directly and actively
maintain or support any re
ligion. Hence, it prohibits any
legislation designed to favor
directly a particular religion
The key words are “in ordina
ry circumstances” plus “direct
ly” and “actively.”
The amendment doesn’t for
bid nonreligious legislation
which has only an incidental
or secondary effect upon re
ligious activity or which ac
cords religious people the same
benefits afforded the general
public. It does not forbid chap
lains for the inmates of peni
tentaries, hospital patients, or
military personnel.
Thus Prof. Edward S. Cor
win of Princeton, one of our
foremost authorities on consti
tutional law, says: “The his
torical record shows beyond
peradventure that the core
idea of an ‘establishment of
religion’ comprises the idea of
preference; and that any act
of public authority favorable
to religion in general cannot,
without manifest falsification
of history, be brought under
the ban of that phrase.”
Whai is the danger in the
proposed Federal aid lo edu
cation exclusively through de
velopment of public schools?
It tends to achieve indirect
ly what is forbidden by the
Constitution: compelling at
tendance at public schools. By
combining its taxing powder
with its spending power, gov
ernment can gradually force
public education willy-nilly
down the throats of all citizens
just as surely as by a specific
ordinance.
“The real threat,” points out
the commission of 21 Wash
ington lawyers, “lies in the
unconstitutional threat posed
by and inherent in any large-
scale spending program solely
for the benefit of public
schools . . . We can justify a
demand that publicly collected
monies be distributed to all
those who participate in the
task of education, not just
those in secular schools. Other
wise government is on the side
of the secularists."
Who are lo be the benefici
aries of fhe proposed legisla
tion?
The school children of
America. The government sub
sidies are to be provided so
that there will be achieved
“the maximum development ot
every young American’s capa
city.” Hence all pupils, regard
less of the school attended,
should share in these benefits.
Otherwise the right of par
ents to determine the educa
tion of their children by send
ing them to schools of their
choice will virtually be nulli
fied. To count nonpublic, non
profit school children “in” for
purposes of taxation and “out”
for distribution of taxes, as the
proposed bill does, is unfair,
unjust, and un-American to
the core.
What is fhe bearing of fhe
U. S. Supreme Court decision
in the Everson case upon the
proposed Federal aid bill?
The New Jersey law reim
bursed parents for the cost of
public transportation of their
children to and from school
regardless of the school at
tended. Its constitutionality
was challenged on the ground
that religious institutions were
thereby benefited. Upholding
the legislation, the U. S. Su
preme Court ruled that the
purpose of the legislation was
nonreligious, and that the re
ligious effects did not invali
date it.
Whai is ihe import of ihe
decision in ihe Cochran case?
A Louisiana law provided
that secular textbooks be fur
nished to all the children, whe
ther they attended public or
nonprofit private schools, in
cluding church-related institu
tions. Sustaining the legisla
tion, the Supreme Court ruled
that the books were primarily
for the education of children,
not for the benefit of the
schools. “It may be signifi
cant,” points out Prof. Suther
land, “that in those cases (Ev
erson and Cochran) the aim
of the legislation was not re
ligious indoctrination, but the
safety and the lay educational
advancement of the school
child — the aim which I as
sume the Congress would have
if it were to provide for such
loans” — i.e., to nonprofit pri
vate schools, church-related
and nondenominational.
What important distinction
is brought out in both these
decisions?
The distinction between the
nonreligious character of the
legislation and the religious ef
fects of the legislation. There
is nothing in the Constitution
prohibiting the use of public
funds for the education of chil
dren in secular subjects, for
transporting them to schools
where those branches of learn
ing are taught, or for provid
ing them with textbooks for
the same.
What legislative enactments
are based upon the principle of
equal treatment of students
under the law?
The G. I. Bill, the Federal
Scholarship Plan, the College
Housing Act of 1950, the War
Orphans’ Educational Assist
ance Act of 1956 and parts of
the National Defense Educa
tion Act of 1958. Under these
laws, students receive Federal
assistance to defray their tul
tion at colleges, public or
church-related. As the exten
sion of Federal aid to students
on the secondary and elemen
tary level would involve only
the same principle, it would be
equally constitutional.
What then are some ways in
which Federal aid may legally
be extended to students in pri
vate nonprofit elementary and
secondary schools, both
church-related and nondenom
inational?
1. By providing such pupils
with nonreligious textbooks
and supplies, and by making
available to them certain non
religious educational services.
2. By some form of limited
grant or benefit to the parents
of all school children, includ
ing the parents of those at
tending private nonprofit
schools. Examples: Parents
might be reimbursed in part
for tuition payments or Con
gress might provide them an
income tax benefit in the form
of a limited deduction, exemp
tion, or credit.
3. By a program of matching
grants or long-term, low-inter
est loans for nonreligious facil
ities and equipment, in which
both public and private non
profit schools, including
church - related institutions,
would participate.
Does formal instruction in
church-related schools occupy
much of the teaching time?
No, only a small fraction—
about 2V2 out of 25 hours a
week. Most of all the effort,
time, and funds are devoted to
the teaching of secular sub
jects taught in the public
school. In many of the facili
ties of the church-related
schools, such as the gymnasi
ums, cafeterias, laboratories
and medical and dental offic
es, no religious instruction is
involved.
Are Catholics the only ones
seeking to have their children
share in the proposed Federal
aid to education?
No. Members of other faiths
are equally concerned. Speak
ing at the House hearing on
this bill, Rabbi Morris Sherer, Drew University, Dr. Herherg
of says: “Justice, I think, is en
tirely on the side of those who
call for public support to 7 paro
chial and other religious
schools performing a public
function; so also is the prac
tice of other democratic coun
tries, where almost without ex
ception, religious schools meet
ing the set requirements are
given public support as public
institutions.”
What does Prof. Henry
Steele Commager propose?
In the New York Times
magazine of February 26, 1961,
the distinguished American
historian of Amherst College,
Dr. Commager, makes substan
tially the same recommenda
tion: “Society requires educa
tion because it has a para
mount interest in an educated
citizenry . . . The problem of
(Continued on Page 3)
executive vice - president
Agudath Israel of America
said: “Our organization of Or
thodox Jews has chapters in
every part of the United States
and includes thousands of rab
bis and communal leaders
amongst them the foremost
Jewish scholars and religious
authorities.
“We strongly favor Federal
aid to parochial schools
The Jewish parent who* sends
his child to a parochial school
should not be unduly penalized
for exercising the right of free
choice, implicit in the Ameri
can way of life, to educate his
children in accordance with his
religious conscience . .
“The memorandum distrib
uted yesterday to Congress by
the Administration’s attorney
against Federal aid to paro
chial schools, conversely tends
to prove that there is no clear
cut ‘black and white, thinking
on this issue of constitution
ality. The brief is so full of
loopholes, and draws so many
hazy distinctions between le
gal and illegal aid, that it ac
tually serves to add weight to
our contention that die-hard
opposition to Federal aid to
the secular programs of paro
chial schools is filled with in
consistencies.
Whai is ihe stand of Citizens
for Educational Freedom?
This is a national organiza
tion of citizens of all faiths
At a congressional hearing, its
president, David L. LaDriere
reported that his organization
favors tuition grants for chil
dren in both public and
church-related schools. “Fair
treatment of children in non
profit schools,” he said, “in'
volves complete equality with
those in public schools, so far
as Federal aid is concerned.
Whai does Dr. Arthur S.
Fleming, former Secretary of
Health, Education and Wel
fare, advocate?
A prominent Methodist and
former president of Ohio Wes
leyan University, Dr. Fleming
urges Congress to approve a
program of loans for nonprofit
private and church - related
elementary and secondary
schools. He suggests that Con
gress put aside the contro
versial feature of the present
bill giving government aid for
public teachers’ salaries and
concentrate on a program of
school construction.
What does Life magazine
recommend?
In an editorial on this sub
ject in its March 17, 1961, is
sue, Life said: “Certainly edu
cation needs all the going
concerns it can get; the great
er variety the better and the
more religious schools the bet
ter too . . . Democracy de
pends on education; but does
that mean it can depend pri
marily on nonreligious educa
tion, which is often in effect
antireligious? Protestants,
Catholics and Jews have a lot
more thinking to do on this
subject.”
What does Will Herberg say
on this subject?
A distinguished author and
professor of Judiac studies at
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