392 U.S. 236 (1968), 660, Board of Education v. Allen

Docket Nº:No. 660
Citation:392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060
Party Name:Board of Education v. Allen
Case Date:June 10, 1968
Court:United States Supreme Court

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392 U.S. 236 (1968)

88 S.Ct. 1923, 20 L.Ed.2d 1060

Board of Education



No. 660

United States Supreme Court

June 10, 1968

Argued April 22, 1968



New York's Education Law requires local public school authorities to lend textbooks free of charge to all students in grades seven to 12, including those in private schools. Appellant school boards sought a declaration that the statutory requirement was invalid as violative of the State and Federal Constitutions, an order barring appellee Commissioner of Education from removing appellants' members from office for failing to comply with it, and an order preventing the use of state funds for the purchase of textbooks to be lent to parochial students. The trial court held the law unconstitutional under the First and Fourteenth Amendments and entered summary judgment for appellants on the pleadings; the Appellate Division reversed and ordered the complaint dismissed since appellant school boards had no standing to attack the statute, and the New York Court of Appeals held that appellants did have standing, but that the statute did not violate the State or Federal Constitution. The Court of Appeals said that the law was to benefit all school children, without regard to the type of school attended, that only textbooks approved by school authorities could be loaned, and therefore the statute was "completely neutral with respect to religion."

Held: The statute does not violate the Establishment or the Free Exercise Clause of the First Amendment. Pp. 241-249.

(1) The express purpose of the statute was the furtherance of educational opportunities for the young, and the law merely makes available to all children the benefits of a general program to lend school books free of charge, and the financial benefit is to parents and children, not to schools. Everson v. Board of Education, 330 U.S. 1. Pp. 243-244.

(2) There is no evidence that religious books have been loaned, and it cannot be assumed that school authorities are unable to distinguish between secular and religious books, or that they will not honestly discharge their duties to approve only secular books. Pp. 244-245.

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(3) Parochial schools, in addition to their sectarian function, perform the task of secular education, and, on the basis of this meager record, the Court cannot agree with appellants that all teaching in a sectarian school is religious, or that the intertwining of secular and religious training is such that secular textbooks furnished to students are, in fact, instrumental in teaching religion. Pp. 245-248.

(4) In the absence of specific evidence, and based solely on judicial notice, it cannot be concluded that the statute results in unconstitutional state involvement with religious instruction or violates the Establishment Clause. P. 248.

(5) Since appellants have not shown that the law coerces them in any way in the practice of religion, there is no violation of the Free Exercise Clause. Pp. 248-249.

20 N.Y.2d 109, 228 N.E.2d 791, affirmed.

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WHITE, J., lead opinion

MR. JUSTICE WHITE delivered the opinion of the Court.

A 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 12; students attending private schools are included. This case presents the question whether this statute is a "law respecting an establishment of religion, or prohibiting the free exercise thereof," and so in conflict with the First and Fourteenth Amendments to the Constitution, because it authorizes the loan of textbooks to students attending parochial schools. We hold that the law is not in violation of the Constitution.

Until 1965, § 701 of the Education Law of the State of New York authorized public school boards to designate

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textbooks for use in the public schools, to purchase such books with public funds, and to rent or sell the books to public school students.1 In 1965, the legislature amended § 701, basing the amendments on findings that the

public welfare and safety require that the state and local communities give assistance to educational programs which are important to our national defense and the general welfare of the state.2

Beginning with the 1966 1967 school year, local school boards were required to purchase textbooks and lend them without charge

to all children residing in such district who are enrolled in grades seven to twelve of a public or private school which complies with the compulsory education law.

The books now loaned are

textbooks which are designated for use in any public, elementary or secondary schools of the state or are approved by any boards of education,

and which -- according to a 1966 amendment -- "a pupil is required to use as a text for a semester or more in a particular class in the school he legally attends."3

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[88 S.Ct. 1925] Appellant Board of Education of Central School District No. 1 in Renesselaer and Columbia Counties, brought suit in the New York courts against appellee James Allen.4 The complaint alleged that § 701 violated both the State and Federal Constitutions; that, if appellants, in reliance on their interpretation of the Constitution, failed to lend books to parochial school students within their counties, appellee Allen would remove appellants from office, and that, to prevent this, appellants were complying with the law and submitting to their constituents a school budget including funds for books to be lent to parochial school pupils. Appellants therefore sought a declaration that § 701 was invalid, an order barring appellee Allen from removing appellants from office for failing to comply with it, and another order restraining him from apportioning state funds to school districts for the purchase of textbooks to be lent to parochial students. After answer, and upon cross-motions for summary judgment, the trial court held the law unconstitutional

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under the First and Fourteenth Amendments and entered judgment for appellants. 51 Misc.2d 297, 273 N.Y.S.2d 239 (1966). The Appellate Division reversed, ordering the complaint dismissed on the ground that appellant school boards had no standing to attack the validity of a state statute. 27 App.Div.2d 69, 276 N.Y.S.2d 234 (1966). On appeal, the New York Court of Appeals concluded by a 4-3 vote that appellants did have standing,5 but, by a different 4-3 vote, held that § 701 was not in violation of either the State or the Federal Constitution. 20 N.Y.2d 109, 228 N.E.2d 791, 281 N.Y.S.2d 799 (1967). The Court of Appeals said that the law's purpose was to benefit all school children, regardless of the type of school they attended, and that only textbooks approved by public school authorities could be loaned. It therefore considered § 701

completely neutral with respect to religion, merely making available secular textbooks at the request of the individual student, and asking no question about what school he attends.

Section 701, the Court of Appeals concluded, is not a law which "establishes a religion or constitutes the use of public funds to aid religious schools." 20 N.Y.2d at 117; 228 N.E.2d at 794, 795; 281 N.Y.S.2d at 805. We noted probable jurisdiction. 389 U.S. 1031 (1968).

Everson v. Board of Education, 330 U.S. 1 (1947), is the case decided by this Court that is most nearly in

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point for today's problem. New Jersey reimbursed parents for expenses incurred in busing their children to parochial schools. The Court stated that the Establishment Clause bars a State from passing "laws which aid one religion, aid all religions, or [88 S.Ct. 1926] prefer one religion over another," and bars too any

tax in any amount, large or small . . . levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.

330 U.S. at 15-16. Nevertheless, said the Court, the Establishment Clause does not prevent a State from extending the benefits of state laws to all citizens without regard for their religious affiliation and does not prohibit

New Jersey from spending tax raised funds to pay the bus fares of parochial school pupils as a part of a general program under which it pays the fares of pupils attending public and other schools.

The statute was held to be valid even though one of its results was that "children are helped to get to church schools," and

some of the children might not be sent to the church schools if the parents were compelled to pay their children's bus fares out of their own pockets.

330 U.S. at 17. As with public provision of police and fire protection, sewage facilities, and streets and sidewalks, payment of bus fares was of some value to the religious school, but was nevertheless not such support of a religious institution as to be a prohibited establishment of religion within the meaning of the First Amendment.

Everson and later cases have shown that the line between state neutrality to religion and state support of religion is not easy to locate.

The constitutional standard is the separation of Church and State. The problem, like many problems in constitutional law, is one of degree.

Zorach v. Clauson, 343 U.S. 306, 314 (1952). See McGowan v. Maryland, 366 U.S. 420 (1961). Based

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on Everson, Zorach, McGowan, and other cases, Abington School District v. Schempp, 374 U.S. 203 (1963), fashioned a test subscribed to by eight Justices for distinguishing between forbidden involvements of the State with religion and those contacts which the Establishment Clause permits:

The test may be stated as follows: what are the purpose and the primary effect of the...

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