Tilton v. Finch, Civ. No. 12767.

Decision Date22 June 1970
Docket NumberCiv. No. 12767.
Citation312 F. Supp. 1191
CourtU.S. District Court — District of Connecticut
PartiesEleanor Taft TILTON et al., Plaintiffs, v. Robert H. FINCH, Secretary of the United States Department of Health, Education and Welfare, James E. Allen, Jr., Commissioner of Education of the United States, Marvin K. Peterson, Chairman of the Commission on Aid to Higher Education of the State of Connecticut, Sacred Heart University, Annhurst College, Fairfield University, Albertus Magnus College, Defendants.

COPYRIGHT MATERIAL OMITTED

Leo Pfeffer, New York City, Peter L. Costas, Melvin S. Katz, Paul W. Orth, Robert Smith, Hartford, Conn., and Jerry Wagner, Bloomfield, Conn., for plaintiffs.

Jeffrey F. Axelrad, Atty., William D. Ruckelshaus, Asst. Atty. Gen., Harland F. Leathers, Atty., Dept. of Justice, Washington, D. C., Stewart H. Jones, U. S. Atty., and F. Mac Buckley, Asst. U. S. Atty., Hartford, Conn., for defendants Robert H. Finch and James E. Allen, Jr.

F. Michael Ahern, Asst. Atty. Gen., and Robert K. Killian, Atty. Gen., State of Connecticut, Hartford, Conn., for defendant Marvin K. Peterson.

Edward Bennett Williams, Jeremiah C. Collins and Charles H. Wilson, Jr., of Williams & Connolly, Washington, D. C., for all defendant colleges and universities.

James J. O'Connell, of Coles, O'Connell & Dolan, Bridgeport, Conn., for defendant Sacred Heart University.

Howard T. Owens, of Owens & Schine, Bridgeport, Conn., for defendants Annhurst College and Fairfield University.

Donald F. Keefe, Lawrence W. Iannotti and Bruce Lewellyn, of Tyler, Cooper, Grant, Bowerman & Keefe, New Haven, Conn., for defendant Albertus Magnus College.

Before J. JOSEPH SMITH, Circuit Judge, and TIMBERS and BLUMENFELD, District Judges.

Probable Jurisdiction Noted June 22, 1970. See 90 S.Ct. 2200.

TIMBERS, District Judge:

QUESTIONS PRESENTED

This taxpayers suit seeking declaratory and injunctive relief with respect to the Higher Education Facilities Act of 1963, 20 U.S.C. §§ 701-58 (1964) (the Act), presents the following essential questions:

(1) Whether the Act authorizes grants to defendant church related colleges and universities for construction of academic facilities.
(2) If so, whether the Act and grants thereunder impair plaintiffs' rights under the establishment clause or the free exercise clause of the First Amendment of the Constitution of the United States.

For the reasons stated below, we hold that the Act does authorize the grants in question and that neither the Act nor the grants thereunder impair plaintiffs' constitutional rights in the respects claimed.1 Judgment therefore must be entered for defendants dismissing the complaint.

PARTIES TO THE ACTION

Plaintiffs are fifteen residents and citizens of the United States and of Connecticut. They are federal taxpayers suing for themselves and others similarly situated. As taxpayers they have standing to sue. Flast v. Cohen, 392 U.S. 83, 88-91 (1967); see Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150 (1970), and Barlow v. Collins, 397 U.S. 159 (1970).

Defendant government officials are the Secretary of the Department of Health, Education and Welfare of the United States, the Commissioner of Education for the United States, and the Chairman of the Connecticut Commission on Aid to Higher Education; they are sued in their official capacities, particularly with respect to their duties in the administration of the Act. Defendant colleges and universities are Sacred Heart University, Annhurst College, Fairfield University and Albertus Magnus College, four church related Connecticut colleges and universities;2 they are sued as recipients under the Act of grants for the construction of various academic facilities.

CLAIMS OF THE PARTIES

Plaintiffs claim that the Act does not authorize grants to defendant colleges and universities for construction of academic facilities; and, if the Act does authorize such grants, the Act and grants violate the establishment clause and the free exercise clause of the First Amendment. Accordingly, plaintiffs seek (i) a declaratory judgment that the determinations and actions of defendant government officials in allocating federal funds to defendant colleges and universities for construction of academic facilities are not authorized by the Act, or, in the alternative, if the Act authorizes such grants, a declaratory judgment that the Act to that extent is unconstitutional and the grants are void; (ii) injunctive relief enjoining defendant government officials from recommending and approving any program for the expenditure of federal funds to finance in whole or in part construction of academic facilities in "sectarian educational institutions" and enjoining defendant colleges and universities from receiving any more funds already awarded under the Act; and (iii) such further relief as may be just and proper.

Defendants' position is that the grants received by defendant colleges and universities are authorized by the Act and that the Act and grants do not impair plaintiffs' constitutional rights.

JURISDICTION

This Court has jurisdiction over the subject matter and the parties pursuant to 28 U.S.C. § 1331(a) (1964).

Since the action seeks injunctive relief with respect to an Act of Congress on the ground of repugnance to the Constitution of the United States, a special statutory district court of three judges was convened to hear and determine the action pursuant to 28 U.S.C. §§ 2282 and 2284 (1964).

HEARINGS AND RECORD

The pleadings having been closed, the Court held a five day hearing at Hartford on the merits.

The record before the Court consists of the pleadings; facts established by stipulation; some 155 documentary exhibits; and the testimony of 22 witnesses.

Counsel for the respective parties have been fully heard in oral argument; and they have submitted helpful briefs, together with proposed findings of fact and conclusions of law.

CLAIM THAT ACT DOES NOT AUTHORIZE GRANTS TO DEFENDANT COLLEGES AND UNIVERSITIES

The threshold question is whether the Act authorizes grants to defendant colleges and universities for construction of academic facilities, plaintiffs' initial claim being that Congress did not intend to make church related institutions of higher education eligible for grants under the Act.

The Act by its terms neither includes nor excludes church related institutions as such; it simply authorizes grants to "institutions of higher education"3 of federal funds for construction of academic facilities.

The Act, however, defines an "institution of higher education"—without regard to whether it is church related or not—as an institution which is nonprofit, accredited and legally authorized by the state in which it is located to provide a program of education beyond high school.4 Since church related colleges and universities may meet these criteria, they may be eligible for grants under the Act.

Moreover, the Act forbids grants for construction of "any facility used or to be used for sectarian instruction or as a place for religious worship" or "any facility which . . . is used or to be used primarily in connection with any part of the program of a school or department of divinity".5 These limitations in the Act itself make it plain that grants for construction of academic facilities to be used in connection with other functions of church related colleges and universities were contemplated.

Indeed the legislative history is quite conclusive that Congress intended to make the benefits of the Act available to church related colleges and universities.6 Not only did the sponsors and floor managers of the legislation so state in the debate,7 but amendments to deny the benefits of the Act to such institutions were voted down.8

As to whether the Act authorizes the instant grants to defendant colleges and universities, we hold on the basis of the entire record before the Court that defendant government officials clearly acted in accordance with the provisions of the Act and within the scope of their authority in recommending and approving the grants in question.9

Having held that the Act authorizes the grants to defendant colleges and universities for construction of academic facilities, we turn now to plaintiffs' claims that the Act and the grants thereunder impair their constitutional rights.

ESTABLISHMENT CLAUSE CLAIM

Plaintiffs' primary claim challenging the constitutionality of the Act and the grants is that they violate the establishment clause of the First Amendment which provides that "Congress shall make no law respecting an establishment of religion . . .."10 Plaintiffs assert that federal aid in the form of construction grants to private church related educational institutions constitutes government aid to religion.

The Supreme Court has not ruled on the precise issue here presented, although it has examined the scope and meaning of the establishment clause in several decisions. Only in Everson v. Board of Education, 330 U.S. 1 (1947), and Board of Education v. Allen, 392 U.S. 236 (1968), however, has the Supreme Court touched upon the establishment clause validity of government aid to private church related education.11

Everson involved an establishment clause challenge to a New Jersey statute which provided state reimbursement to parents of parochial school children as well as to parents of public school children for the cost of bus transportation to and from school. The Supreme Court held that the statute did not violate the establishment clause. In the course of its opinion, the Court stated:

"No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they be called, or whatever form they may adopt to teach or practice religion." 330 U.S. at 16.

Although this language, read in isolation, might suggest that the establishment clause renders impermissible any government...

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7 cases
  • Seegers v. Parker
    • United States
    • Louisiana Supreme Court
    • 19 Octubre 1970
    ...state aid to religious and secular institutions. Walz v. Tax Commission, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970); Tilton v. Finch, 312 F.Supp. 1191 (1970); Lemon v. Kurtzman, 310 F.Supp. 35 (1970), prob. juris. noted 397 U.S. 1034, 90 S.Ct. 1354, 25 L.Ed.2d 646 Excessive involvem......
  • Southside Fair Housing Committee v. City of New York
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 26 Marzo 1991
    ...of selling properties "at auctions where there is little likelihood of competing bids" is not invalid); see also Tilton v. Finch, 312 F.Supp. 1191, 1198-99 (D.Conn.1970) (3 judge court) (primary effect of Act authorizing grants to religious schools was not to advance religion), vacated and ......
  • DiCenso v. Robinson
    • United States
    • U.S. District Court — District of Rhode Island
    • 9 Noviembre 1970
    ...in the form of higher school bills, rather than directly. Accord, Lemon v. Kurtzman, 310 F.Supp. at 47-48; Tilton v. Finch, 312 F.Supp. 1191, at 1197-1198 (D.Conn. March 19, 1970). Perhaps recognizing the shortcomings of the Everson formulation, both plaintiffs and defendants have focused t......
  • Johnson v. Sanders
    • United States
    • U.S. District Court — District of Connecticut
    • 15 Octubre 1970
    ...that it represents controlling precedent, in the absence of a holding in a case actually resembling the one before us. Tilton v. Finch, 312 F.Supp. 1191, 1197 (D.Conn.) prob. juris. noted, 399 U.S. 904, 90 S. Ct. 2200, 26 L.Ed.2d 558 (1970). Accord, DiCenso v. Robinson, supra; Lemon v. Kurt......
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