Norwood v. Harrison 8212 77, No. 72

CourtUnited States Supreme Court
Writing for the CourtBURGER
Citation37 L.Ed.2d 723,93 S.Ct. 2804,413 U.S. 455
PartiesDelores NORWOOD et al., Appellants, v. D. L. HARRISON, Sr., et al. —77
Docket NumberNo. 72
Decision Date25 June 1973

413 U.S. 455
93 S.Ct. 2804
37 L.Ed.2d 723
Delores NORWOOD et al., Appellants,


D. L. HARRISON, Sr., et al.

No. 72—77.
Argued Feb. 20 and 21, 1973.
Decided June 25, 1973.


A three-judge District Court sustained the validity of a Mississippi statutory program, begun in 1940, under which textbooks are purchased by the State and lent to students in both public and private schools, without reference to whether any participating private school has racially discriminatory policies. The number of private secular schools in Mississippi, with a virtually all-white student population, has greatly increased in recent years. Held:

1. Private schools have the right to exist and to operate, Pierce v. Society of Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 but the State is not required by the Equal Protection Clause to provide assistance to private schools equivalent to that it provides to public schools without regard to whether the private schools discriminate on racial grounds. Pp. 461—463.

2. Free textbooks, like tuition grants directed to students in private schools, are a form of tangible financial assistance benefiting the schools themselves, and the State's constitutional obligation requires it to avoid not only operating the old dual system of racially segregated schools but also providing tangible aid to schools that practice racial or other invidious discrimination. Pp. 463—468.

3. Assistance carefully limited so as to avoid the prohibitions of the 'effect' and 'entanglement' tests may be confined to the secular functions of sectarian schools and does not substantially promote the religious mission of those schools in violation of the Establishment Clause. In this case, however, the legitimate educational function of private discriminatory schools cannot be isolated from their alleged discriminatory practices; discriminatory treatment exerts a pervasive influence on the entire educational process. Brown v. Board of Education of Topeka, Shawnee County, Kan., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873. The Establishment Clause permits a greater degree of state assistance to sectarian schools than may be given to private schools which engage in discriminatory practices. Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711, and Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060, distinguished. Pp. 468—470.

Page 456

4. Proper injunctive relief can be granted without implying that all the private schools alleged to be receiving textbook aid have restrictive admission policies. The District Court can direct appellees to submit for approval a certification procedure whereby schools may apply for textbooks on behalf of pupils, affirmatively declaring admission policies and practices, and stating the number of their racially and religiously identifiable minority students, and other relevant data. Certification of eligibility will be subject to judicial review. Pp. 470—471.

340 F.Supp. 1003, vacated and remanded.

Melvyn R. Leventhal, Jackson, Miss., for appellants.

William A. Allain, Jackson, Miss., for appellees.

Mr. Chief Justice BURGER delivered the opinion of the Court.

A three-judge District Court sustained the validity of a Mississippi statutory program under which textbooks are purchased by the State and lent to students in both public and private schools, without reference to whether any participating private school has racially discriminatory policies. 340 F.Supp. 1003 (N.D.Miss.1972). We noted probable jurisdiction, 409 U.S. 839, 93 S.Ct. 68, 34 L.Ed.2d 79.

Page 457


Appellants, who are parents of four schoolchildren in Tunica County, Mississippi, filed a class action on behalf of students throughout Mississippi to enjoin in part the enforcement of the Mississippi textbook lending program. The complaint alleged that certain of the private schools excluded students on the basis of race and that, by supplying textbooks to students attending such private schools, appellees, acting for the State, have provided direct state aid to racially segregated education. It was also alleged that the textbook aid program thereby impeded the process of fully desegregating public schools, in violation of appellants' constitutional rights.

Private schools in Mississippi have experienced a marked growth in recent years. As recently as the 1963—1964 school year, there were only 17 private schools other than Catholic schools; the total enrollment was 2,362 students. In these nonpublic schools 916 students were Negro, and 192 of these were enrolled in special schools for retarded, orphaned, or abandoned children. 1 By September 1970, the number of private non-Catholic shools had increased to 155 with a student population estimated at 42,000, virtually all white. Appellees do not challenge the statement, which is fully documented in appellants' brief, that 'the creation and enlargement of these (private) academies occurred simultaneously with major events in the desegregation of public schools . . ..'2

This case does not raise any question as to the right of citizens to maintain private schools with admission limited to students of particular national origins, race, or religion or of the authority of a State to allow such

Page 458

schools. See Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925). The narrow issue before us, rather, is a particular form of tangible assistance the State provides to students in private schools in common with all other students by lending textbooks under the State's 33-year-old program for providing free textbooks to all the children of the State. The program dates back to a 1940 appeal for improved educational facilities by the Governor of Mississippi to the state legislature. The legislature then established a state textbook purchasing board and authorized it to select, purchase, and distribute free textbooks for all schoolchildren through the first eight grades.3 In 1942, the program was extended to cover all high school students, and, as codified, the statutory authorization remains substantially unchanged. Miss.Code Ann. § 6634 et seq. (1942).

Administration of the textbook program is vested in the Mississippi Textbook Purchasing Board, whose members include the Governor, the State Superintendent of Education, and three experienced educators appointed by the Governor for four-year terms. Id., §§ 6634, 6641. The Board employs a full-time administrator as its Executive Secretary. Textbooks may be purchased only 'for use in those courses set up in the state course of study adopted by the State Board of Education, or courses established by special acts of the Legislature.' Id., § 6646. For each course of study, there is a 'rating committee' composed of appointed members, id., § 6641(1)(d), and only those books approved by the relevant rating committee may be purchased from publishers at a price which cannot 'be higher than the lowest prices at which the same books are being sold anywhere in the United States.' Id., § 6646(1).

Page 459

The books are kept at a central book repository in Jackson. Id., § 6641(1) (f). Appellees send to each school district, and in recent years, to each private school4 requisition forms listing approved textbooks available from the State for free distribution to students. The local school district or the private school sends a requisition form to the Purchasing Board for approval by the Executive Secretary, who in turn forwards the approved form to the Jackson book repository where the order is routinely filled and the requested books shipped directly to the school district or the private school.

The District Court found that '34,000 students are presently receiving state-owned textbooks while attending 107 all-white, nonsectarian private schools which have been formed throughout the state since the incep-

Page 460

tion of public school desegregation.' 340 F.Supp., at 1011.5 During the 1970-1971 school year, these schools held 173,424 books, for which Mississippi paid $490,239. The annual expenditure for replacements or new texts is approximately $6 per pupil, or a total of approximately $207,000 for the students enrolled in the participating private segregated academies, exclusive of mailing costs which are borne by the State as well.

In dismissing the complaint the District Court stressed, first, that the statutory scheme was not motivated by a desire to further racial segregation in the public schools, having been enacted first in 1940, long before this Court's decision in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), and consequently, long before there was any occasion to have a policy or reason to foster the development of racially segregated private academies. Second, the District Court took note that providing textbooks to private sectarian schools had been approved by this Court in Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968), and that '(t)he essential inquiry, therefore, is whether we should apply a more stringent standard for determining what constitutes state aid to a school in the context of the Fourteenth Amendment's ban against denial of the equal protection of the law than the Supreme Court has applied in First Amendment cases.' 340 F.Supp., at 1011. The District Court held no more stringent standard should apply on the facts of this case, since as in Allen, the books were provided to the students and not to the schools. Finally, the District Court concluded that the textbook loans did not interfere with or impede the State's acknowledged duty to establish a unitary

Page 461

school system under this Court's holding in Green v. County School Board, 391 U.S. 430, 437, 88 S.Ct. 1689, 1693, 20 L.Ed.2d 716 (1968), since

'(d)epriving any segment of school children of state-owned textbooks at this point in time is not...

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