Board of Education of Central School District No v. Allen, No. 660

CourtUnited States Supreme Court
Writing for the CourtWHITE
PartiesBOARD OF EDUCATION OF CENTRAL SCHOOL DISTRICT NO. 1, etc., et al. Appellants, v. James E. ALLEN, Jr., as Commissioner of Education of New York, et al
Decision Date10 June 1968
Docket NumberNo. 660

392 U.S. 236
88 S.Ct. 1923
20 L.Ed.2d 1060
BOARD OF EDUCATION OF CENTRAL SCHOOL DISTRICT NO. 1, etc., et al. Appellants,

v.

James E. ALLEN, Jr., as Commissioner of Education of New York, et al.

No. 660.
Argued April 22, 1968.
Decided June 10, 1968.

[Syllabus from pages 236-237 intentionally omitted]

Page 237

Marvin E. Pollock, New York City, for appellants.

Jean M. Coon, Albany, New York, and Porter R. Chandler, New York City, for appellees.

Page 238

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, McKinney's Consol. Laws, c. 16, authorized public school boards to designate

Page 239

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 'text-books 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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Appellant Board of Education of Central School District No. 1 in Rensselaer 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 un-

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constitutional 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 A.D.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 standing5 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, 281 N.Y.S.2d 799, 228 N.E.2d 791 (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 117 281 N.Y.S.2d, at 805, 228 N.E.2d, at 794, 795. We noted probable jurisdiction. 389 U.S. 1031, 88 S.Ct. 767, 19 L.Ed.2d 819 (1968).

Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (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 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, 67 S.Ct., at 511. 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, 67 S.Ct., at 512. 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, 72 S.Ct. 679, 684, 96 L.Ed. 954 (1952). See McGowan v. State of Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). Based

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on Everson, Zorach, McGowan, and other cases, Abington Tp. School District v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (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 enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say that to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion. Everson v. Board of Education * * *.' 374 U.S. at 222, 83 S.Ct., at 1571.

This test is not easy to apply, but the citation of Everson by the Schempp Court to support its general standard made clear how the Schempp rule would be applied to the facts of Everson. The statute upheld in Everson would be considered a law having 'a secular legislative purpose and a primary effect that neither advances nor inhibits religion.' We reach the same result with respect to the New York law requiring school books to be loaned free of charge to all students in specified grades. The express purpose of § 701 was stated by the New York Legislature to be furtherance of the educational opportunities available to the young. Appellants have shown us nothing about the necessary effects of the statute that is contrary to its stated purpose. The law merely makes available to all children the benefits of a general program to lend school books free of charge. Books are furnished at the request of the pupil and ownership remains, at least technically, in the State. Thus no funds or books are fur-

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nished to parochial schools, and the financial benefit is to parents and children, not be schools.6 Perhaps free books make it more likely that some children choose to attend a sectarian school, but that was true of the state-paid bus fares in Everson and does not alone demonstrate an unconstitutional degree of support for a religious institution.

Of course books are different from buses. Most bus rides have no inherent religious significance, while religious books are common. However, the language of § 701 does not authorize the loan of religious books, and the State claims no right to distribute religious literature. Although the books loaned are those required by the parochial school for use in specific courses, each book

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loaned must be approved by the public school authorities; only secular books may receive approval. The law was construed by the Court of Appeals of New York as 'merely making available secular textbooks at the request of the individual student,' supra, and the record contains no suggestion that religious books have been loaned. Absent evidence, we cannot assume that school authorities, who constantly face the same problem in selecting textbooks for use in the public schools, are unable to...

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  • ESTABLISHMENT'S POLITICAL PRIORITY TO FREE EXERCISE.
    • United States
    • Notre Dame Law Review Vol. 97 Nbr. 2, January 2022
    • January 1, 2022
    ...effects. (91) Illinois ex rel. McCollum v. Bd. of Educ, 333 U.S. 203 (1948); Flast v. Cohen, 392 U.S. 83 (1968); Bd. of Educ. v. Allen, 392 U.S. 236 (1968); Lemon v. Kurtzman, 403 U.S. 602 (1971); Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756 (1973); Meek v. Pittenge......

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