Roemer v. Board of Public Works of State of Md.

• Decision Date: 07 April 1975
• Docket Number: Civ. No. 72-307-Y.
• Parties: John C. ROEMER, III, et al. v. BOARD OF PUBLIC WORKS OF the STATE OF MARYLAND et al.
• Court: U.S. District Court — District of Maryland

387 F. Supp. 1282

John C. ROEMER, III, et al. v. BOARD OF PUBLIC WORKS OF the STATE OF MARYLAND et al.

Civ. No. 72-307-Y.

United States District Court, D. Maryland.

October 16, 1974.

Probable Jurisdiction Noted February 18, 1975.

Appeal Dismissed in Part April 7, 1975.

COPYRIGHT MATERIAL OMITTED

Lawrence S. Greenwald, Baltimore, Md., for plaintiffs.

Francis B. Burch, Atty. Gen., Md., George A. Nilson, Asst. Atty. Gen., Md., Baltimore, Md., for Bd. of Public Works of State of Maryland, Marvin Mandel, Governor, Louis L. Goldstein, Comptroller, and John A. Leutkemeyer, Treasurer.

Paul R. Connolly, Charles H. Wilson, Jr., Washington, D. C., for Mt. Saint Mary's College and the Associated Professors of Loyola College in the City of Baltimore, Inc.

John H. Mudd, H. Thomas Howell, William F. Gately, Baltimore, Md., for Western Maryland College.

George W. Constable, Baltimore, Md., for College of Notre Dame of Maryland, Inc.

George T. Tyler, Baltimore, Md., for Saint Joseph College of Emmitsburg, Maryland, Inc.

Before BRYAN, Senior Circuit Judge, and WATKINS and YOUNG, District Judges.

Probable Jurisdiction Noted February 18, 1975. See 95 S.Ct. 1115.

Appeal Dismissed in Part April 7, 1975. See 95 S.Ct. 1455.

JOSEPH H. YOUNG, District Judge.

Article 77A, § 65, et seq. of the Maryland Annotated Code provides public aid in the form of non-categorical grants to eligible colleges and universities in the State. Four Maryland citizens and taxpayers¹ have challenged the constitutionality of Md.Ann.Code art. 77A, § 65, et seq. (1969 Repl.Vol.) on the grounds that the statute violates the Establishment Clause of the First Amendment² to the Constitution of the United States. Included among the eligible recipients are five church-affiliated institutions. The plaintiffs seek an injunction against further aid grants and a declaration that all funds received by the recipient institutions be paid over to the state with interest.³ The defendants in the case are the Governor, Comptroller and Treasurer of the State of Maryland, all of whom constitute the Board of Public Works of the State of Maryland, and the five church-affiliated institutions which are recipients of aid under the statute.⁴ The thirteen non-church-affiliated educational institutions which receive aid are not joined as defendants.

Jurisdiction is based on 28 U.S.C. § 1331. A District Court of three judges was convened pursuant to 28 U.S.C. §§ 2281 and 2284. United States District Judge Joseph H. Young of this panel was appointed to conduct fact-finding hearings as to the character of the defendant schools and the administration of the Act. The findings of fact which resulted from these hearings constitute the sole factual basis upon which this opinion rests, and are incorporated into this opinion as an appendix.

Section 66 of the article under attack limits the aid program to private colleges and universities which are accredited by the State Department of Education. However, educational institutions which award only seminarian or theological degrees are not eligible for aid. In 1972, after the decisions in Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L.Ed.2d 745 (1971), and Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971), the Maryland Legislature enacted section 68A which reads: "None of the moneys payable under this subtitle shall be utilized by the institutions for sectarian purposes." Ch. 534, 1972 Md.Laws 1495.

The responsibility for administration of this program is vested in the Maryland Council for Higher Education. The council is a public commission appointed by the Governor to coordinate state programs in higher education and to prepare reports and recommendations to appropriate state officials and institutions for the benefit of Maryland higher education. The Council was established prior to the creation of the state aid program in question and had developed considerable expertise as to the character and functions of the various private colleges and universities in the State, independent of its functions as administrator of this program.

The formula by which aid is allocated among the various schools has been changed on several occasions. As the statute was originally enacted, the amount of aid to be given to the schools was computed by multiplying by two hundred dollars the number of associate of arts degrees and by five hundred dollars the number of bachelor's degrees, excluding seminarian or theological degrees, conferred by the institution in the previous academic year. The funds would be paid to the school in the form of a direct grant which the school could use for any purpose. The 1973 amendments provided for an additional five hundred dollar grant for each graduate degree conferred in the previous academic year. The 1974 amendments provide a formula by which 15% of the average yearly expenditure for a student in the state college system is multiplied by the number of full-time students in each school up to a total of approximately $3,000,000 for the entire program. Each change in the statutory formula has resulted in a significant increase in public aid to the recipient institutions.

The analysis of Article 77A, §§ 65 et seq., presents this Court with a problem of great sensitivity and complexity. Throughout this country's history the separation of church and state has served the nation well as a guard against religious oppression. This principle has further served to protect the vitality and integrity of American religious institutions.⁵ The existence of a system of private colleges and universities, including a component of church-affiliated institutions, has maintained a pluralist tradition in higher education and has resulted in substantial savings to the public treasury. The question presented is whether the Legislature in an otherwise commendable effort to assist the system of private education in Maryland has violated the First Amendment prohibition of laws "respecting an establishment of religion." This Court must conclude that the statute does not violate the Establishment Clause.

The Establishment Clause clearly does not prevent any form of public aid or service to any church-affiliated institution, see, e. g., Hunt v. McNair, 413 U.S. 734, 93 S.Ct. 2868, 37 L.Ed.2d 923 (1973); Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971); Walz v. Tax Commission, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970); Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968); Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1047); Bradfield v. Roberts, 175 U.S. 291, 20 S.Ct. 121, 44 L.Ed. 168 (1899).⁶ The Supreme Court has also explicitly rejected the notion that "* * * all aid is forbidden because aid to one aspect of an institution frees it to spend its other resources on religious ends." Hunt v. McNair, supra, 413 U.S. at 743, 93 S.Ct. at 2874. On the other hand, aid to church-related institutions must be analyzed with the greatest care to ensure that the purposes of the religion clauses are not violated. See Committee for Public Education v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973); Levitt v. Committee for Public Education, 413 U.S. 472, 93 S.Ct. 2814, 37 L.Ed.2d 736 (1973); Sloan v. Lemon, 413 U.S. 825, 93 S.Ct. 2982, 37 L.Ed.2d 939 (1973); Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971).

The Supreme Court has evolved a three part test by which the constitutionality of a statute may be determined in light of the Establishment Clause. "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion . . .; finally, the statute must not foster `an excessive government entanglement with religion.'" Lemon v. Kurtzman, supra, 403 U.S. at 612-613, 91 S.Ct. at 2111. Government entanglement must be avoided in two areas — the statute must not cause excessive administrative entanglement in its enforcement and the aid program must not cause an excessive entanglement of religion in the political process. See Lemon v. Kurtzman, supra.

The findings of fact in this case clearly indicate that the statute was enacted with a secular purpose. The program will save the taxpayers of Maryland substantial amounts of money which would otherwise have had to be spent to expand public educational institutions. The Court notes that over two-thirds of the recipient institutions have no religious affiliations.

The findings of fact also conclude that the statute has not had the primary effect of advancing or inhibiting religion. This Court's analysis indicates that this conclusion is correct.

A court may find that the primary effect of a program of aid will be to advance religion ". . . when it flows to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission or when it funds a specifically religious activity in an otherwise substantially secular setting." Hunt v. McNair, supra, 413 U.S. at 743, 93 S.Ct. at 2874.

Both Tilton and Hunt are instructive in determining when an institution is "pervasively sectarian." The Court in Tilton rejected the use of a composite profile of a sectarian institution and instead focused on the actual characteristics of the four independent colleges. The Court noted that all four schools subscribed to the 1940 Statement of Principles on Academic Freedom and Tenure endorsed by the American Association of University Professors, and that an atmosphere of academic freedom prevailed on each campus. Each of the four schools admitted students and hired faculty who were not members of the affiliated church. None of the schools required attendance at religious services. Although all of the schools required students to study theology, the courses were taught according to the academic requirements of the subject matter. The five defend...