3 Lemon v. Kurtzman - Oyez ORAL ARGUMENT

Lemon v.
Kurtzman
Oral Argument - March 03, 1971
Warren E. Burger
We will hear arguments next in number 89 Lemon against Kurtzman
and others.
Mr. Sawyer you may proceed whenever you're ready.
Henry W. Sawyer, III

Mr. Chief Justice, may it please the Court.
This is an appeal from the dismissal of a complaint of three

individual taxpayers and several organizations challenging the
constitutionality of a Pennsylvania statute Act 109 which provides for
the payment of tax money to non public schools to reimburse them
for the cost of teaching mathematics, modern and foreign languages,
physical science and physical education.
The complaint, alleged violation of the First Amendment’s religious

clause and of the Equal Protection Clause of the Fourteenth
Amendment.
Three-judge court dismissed the complaint on the First Amendment

grounds of the basis of a fair and steady cause of action, no answer,
no discovery, no trial, no record.
On the Fourteenth Amendment, ground for a lack of standing in all

parties.
When this Act was passed, it was without precedent in the United
States.
It's scheme is simply this, any non-public school has but to ll out a
form and submit it, setting forth its cost in these subjects for teacher
salaries, teaching materials and for textbooks and that state forth
with pays that amount over to the school.
The transaction is labeled, purchase of services contract.
As Judge Hastie, dissenting below said, nevertheless and I quote “the

state buys no services and the school sells none.
There are no new children involved, there is no new teaching”.

The pedagogical status quo in Pennsylvania is precisely the same as it
was before the Act, the only di erence is economic.
The Act provides for considerable new state regulations of the

schools, the non public schools and when I say non public, it’s to be
understood of course that, these are largely church a liated schools,
97%.
And 97% of that, 97% is Roman Catholic.
The Act calls for inspection of textbooks for testing the pupils and for
certain levels of performance and that’s new, for the certi cation of
teachers after a passage of time and that’s new.
Byron R. White
State doesn’t prescribe the textbooks?

No sir, they are submitted.
Byron R. White
Just as (Inaudible)

Yes sir.
For auditing procedures and for regulating of teaching content and

those provisions of the Act are in the record at page 20, 20 to 24.
There were 17.5 million under the Act this year, rst year was ve
and that’s in the record but since then, 17.5 million.
Now the complaint alleged particular violations of the establishment

and freedom of exercise clause and there was no question raised
about its adequacy as a pleading.
Byron R. White
I'm not quite clear as to the detail of how this scheme works.
I know you said there was a contact, but what’s involved, as the state
authority accepts the representations of the institution?

They had like on a form, Your Honor, that says that the cost for
teacher salaries, for teaching materials and for textbooks was such
and such for teaching let’s say mathematics and then they submit
that to the state and the state pays them the money.
Byron R. White
Well is there any order?

Oh yes there’s an order, there's an order of whether or not—
Byron R. White
Well before the money is paid, what check is made on that?

See we don’t know Your Honor, we have no record.
Byron R. White
I see.

We can only glean this from the statute because there's no record so
we never found put how the state goes about these procedures, the
crown of my appeal is that there should have been -- after all I'm
here on an appeal from a motion to dismiss, the granting of motion
to dismiss and I will be unable to inform you about a number of
things because there isn’t any record.
Warren E. Burger
A motion to dismiss for what?

Sir, a motion was made to dismiss the complaint for fair and a steady
clause of action for a lack of a substantial federal question.
Byron R. White
Was there summary judgment?

No sir and unlike Allen, it’s not an Allen situation where both sides
cross move for summary judgment after answering and nothing
happened in this case except the complaint was led and the
complaint was dismissed on motion but one justice descending.
And you said that the schools submit their cost for these courses,
teaching and materials and what not and the state then just pays the
money so far as the complaint show because so far as we now know.

Yes sir, they owe the money.
William J. Brennan, Jr.

100% of it?

Well no because that depends on how much is available and now the
rst year, there was only 4 million so that was a pro-rata.
William J. Brennan, Jr.

Available what, in legislative appropriation?
Potter Stewart
From a horse racing tax.

Well horse raising and now cigarette tax.
It's 17.5 and I understand schedule Mr. Shane Creamer can tell you
this.
I understand it will certainly go to 38 million in the forthcoming year,

although on Sunday night at midnight, the state of Pennsylvania,
o cially went bankrupt according to the governor and so all of these
bills are probably in limbo.
Byron R. White
This case hasn't become moot?

No sir, may it please the court, Act 109 is Pennsylvania’s Assessment
Bill.
After 200 years, the Pennsylvania assembly attempts what the

Virginia Assembly attempted and which Madison and Je erson
deferred the similarities were striking.
Byron R. White
In fact, all you’re really asking us for is that you have a chance to try
this case, isn’t it?

Yes sir but you can facially declare it unconstitutional, I do want to
address myself to that, for several grounds on which this Court could
nd it facially unconstitutional.
Cases, of course here Your Honor, it must be realistic and valid, it's
— it presents problems on many levels, there is the legal level, the
traditional level.
This little question that the traditional church state doctrine is

evolved by this Court would appear to require the invalidation of this
Act.
I discern eight grounds on which church cases have been founded by

this Court and I venture to say this is the rst piece of legislation ever
before this Court didn’t violate all eight and I’ll come to that in a
moment sir.
Could I ask you a preliminary question, (Inaudible)

The Court below thought not that question was raised, it’s tax money
and one of my plainti s went to the horse race and paid the tax and
he was the only one found to have admission, I think the Court ruled
on that, I think a tax is a tax and public money is public money for
this purpose.
There might be other cases where you a great deal question what the
source is.
But when you get to the fundamentals of the First Amendment, Mr.
Justice Harlan, I think public money is public money, makes no
di erence whether it's a special tax, you can't isolate it.
When there's only there to read to skim of the briefs here to become
aware Your Honors and it's certainly true that the controversy here is
pregnant with other issues.
The appellees say in their brief and as they said it at Harrisburg that
unless relief and unless subsidy is forthcoming, the parochial school
system will wither and decline.
On the other hand, the attackers of the bill point out at a di erent
level that the e ectiveness will be to perpetuate the e ect of racial
segregation that’s exempli ed by the non-public school system.
On still another level, the proponents say, having predicted the

demise of the non-public school system that the resulting exclusively
public system will be deleterious to pluralistic society and we rejoin, I
suppose that what you're heading for here is a dual school system,
it's act is sustained, the one primarily a uent and suburban and
White and at least typically White and suburban and elitist and the
other poor, inferior, practically custodial and Black.
And that there are nations that have those systems and this is what
we’re heading for.
If we’re talking simply about the traditional doctrine, there's no

precedent of course, because there's no present legislation, the cases
after Shemport (ph) discussed.
They lead, it seems to me that the conclusion that unless the law is
to be changed, the stack must go down.
I do want to mention Brad eld, however since it's come up, Mr.
Justice Blackmun, rst of all yesterday.
Now Brad eld as a precedent I think, Your Honor.
I'm not speaking about the situation of Brad eld because I’ll talk
about that too.
As a precedent, I think Brad eld doesn’t need to troubles because

rightly or wrongly, and I have a footnote which covers Brad eld in my
brief at some length on page 19 and there, the Supreme Court rightly
or wrongly just didn’t reach the First Amendment issue because they
simply said, the fact that this corporation, a hospital corporation’s
members are composed of religious people and they happen to be
Catholics, doesn’t make it sectarian any more than it would if they
were Methodists and they concluded, nally we are not able to say
and I'm quoting, “we are not able to say that the compliant in this
bill shows that the corporation is for the kind described but on the
contrary, he has clearly shown it is not.
Now, that doesn’t get us away from the question and the question is
how about hospitals?
Because hospitals are in a relationship with the state and that’s true
in Pennsylvania today.
They are paid so much for them or indigent patients selected by the
state and sent to them for treatment.
Warren E. Burger
Don’t they receive direct federal grants under Hill-Burton?

Yes sir but not if they're sectarian.
Not if they're sectarian, that’s my understanding and here again

we’re without a record so Your Honor has asked me, I was on the
board of this group of hospital in Philadelphia and we added not
(Inaudible) of the board, we did a number of things of that kind, we
did attach ourself for all relationship with the archdiocese in order to
get Hill-Burton funds.
Now, I think that’s what happens in the hospital cases.
I'm speaking of the kind of thing that might be analogous to our

situation, that as you treat a patient and you get paid so much.
My rationale is this, and these are the di erences and I think they
probably all have to exist for the hospital situation to prevail
constitutionally.
First of all, to recognize that it is not a church and the care of the sick
is not a mandated, a mandated religious function, it’s part of the
good work ethics of most all religions.
It doesn’t therefore teach or proselytize, it does not prefer, I don’t

think exclusion is necessary, I think any distinct preference is
su cient to make it unconstitutional and nally, and most
important, this is true purchase of services.
Here the purchase of service is not a subterfuge, here the status quo
is not the same after as before because new, speci c individuals who
are discernible and could be tracked or treated who would not be
treated if they were not for the use of this facility.
So I think all of those di erences are important to the situation and I

don’t, for one minute agree if Mr. Pfe er did, I'm not quite sure he
did that the state can subsidize a church to carry out a secular
function.
I think it can only do that Zorach v. Clausonunder very special

circumstances and the hospital one is one of the very few that I can
—
Byron R. White
Mr. Sawyer, will you still distinguish the hospital situation even
though it maintains a chaplaincy sta .

Yes I think the mere maintenance -- all of these other quali cation
is present, the mere maintenance of a chapel somewhere on the
premises would not be su cient but I think if somebody said that I
don’t think you can be made to go through the chapel either on your
way to be cured or in thanks for having been cured on your way out.
Byron R. White
But what about what I was mentioning a chaplaincy sta , four or ve
chaplains of a particular denomination maintained by the hospital,
does this make a di erence?

Your Honor I think you keep adding things and nally we will get to
the point.
By itself, I would say no, not if there's not any opportunity of the
charitable patients in any way, the mere availability of the sta , I
would say no.
But I think you can keep adding until it begins to be a permeation of

the curing function with the religious function.
Now I do want to mention Allen because the briefs in Allen, all the
briefs in Allen misstate Allen’s facts and I must say that -- I have to
say that that misstatement is based on a misapprehension, I think of
Allen’s facts in the Walz opinion.
I'm referring to the -- it is alleged that the Court in Allen sustained a
New York book law even though the a ect was to relieve the schools
of quote, Walz said, “the enormous aggregate cost for those books”.
Now actually, the footnote in the Allen case, footnote 6 makes it

clear that the parents previously bought the books, not the schools so
that there was no relieving of the burden previous, that the school
previously had carried.
Now there's another point in Allen, factual point that I haven’t seen
coming as the one at all and that is this -- that prior to the 1965
amendment in New York, the state didn’t pay for public school
children’s books.
They could be paid for by a special provision, 703 with a local tax.
But you see, that means that there, the New York legislature was
conferring a bene t namely free books on all children that had not
previously existed.
It is quite clear, you'll see that in a footnote in the Allen case at the
very beginning in Justice White’s opinion that until 1965, and I'm
quoting from the second paragraph, the state purchased books and so
and so to rent or sell the books to the public school children.
And now therefore, the preamble there that they were doing --
standard for education took on some plausibility and they were
supplying to all children something they didn’t have before and
indeed, could this Court have said in Allen that the New York statute
was unconstitutional unless in the process of giving books to all
children, the New York legislature had said but catholic children can't
have them?
Now the analogy in Pennsylvania, you see would be if Pennsylvania in

order to ful ll a lack of teaching in mathematics and the physical
sciences, etcetera, a lack of teaching had set up somewhere either
tutoring or some facilities that teach these four subjects.
And then you have that kind of situation and then would we come in
and say, well the Pennsylvania Act is unconstitutional because it
doesn’t exclude catholic children from these facilities but of course
nothing like that happened.
Now in that sense, Allen it seems to me --

Potter Stewart
What if there had been a shortage of mathematics teachers, the state
had set up a center to teach teachers in these subjects including
sisters of Roman Catholic orders.

Teach them free?
Potter Stewart
Yes, with tax money to --

That’s a hypothetical situation, Your Honor that I would think would
be constitutional.
I think you could o er -- the state can o er free education to

anybody even if the free education includes education as to how to
educate in the catholic school.
Warren E. Burger
We’re on a hypothetical on your sta , let me ask you another,
suppose the Board of Public Education state provided panels of public
school teachers, hired on public school standards to teach all these
non-sectarian subjects and provided by the Act, any private school
meeting certain other scholastic standards of law could have one of
these teachers to teach mathematics or chemistry in their school
under the direction of the state.
Do you see an involvement there?

I see a lot of problems with that kind of legislation Your Honor and of
course it talked about, I don’t know how this Court would resolve that
problem, I think it's di cult, there's entanglement there, there's a
really involvement problems.
I really am not trying to evade it.
I thought about it and I'm not at all sure, Your Honor how I could
brief that question to this Court, I think it's a very, very close case.
It certainly is not this one.

Warren E. Burger
It isn’t our case anyway.
Byron R. White
The same thing goes about tuition grants?

Yes sir, voucher kind of plan, I think presents problems but with there
I think I can say with con dence that the constitutional magnitude of
the problems in the voucher plan are pale and insigni cant as
compared with this Pennsylvania situation.
I want to mention just this about Walz, Walz certainly made one
important negative point.
Quite clearly, Walz refused to validate the exemption there on the

ground that churches, by good works, by welfare and charitable
works, perform a secular function which otherwise were have to be
performed with public expense.
The Chief Justice clearly renounced, speaking for the Court, clearly
renounced that rationale.
That seems to me to pretty well jeopardize the argument of the

appellees that the main reason of this is constitutional is because this
is a secular function and that the fact is being performed by a church
makes no di erence.
The other important thing is the concept in Walz -- both

interdependence and entanglement.
I think they are somewhat di erent.
Here in the interdependence, is on the face of this Act.
The legislature has said, we are now dependent on the church school
system to carry out our mandated constitutional duty of educating
children and in the brief led here, the church has now said, we are
dependent upon the state subsidy to carry out our church mandated
function of educating adherence to our faith.
As to entanglement, and I think the very core of Walz was

entanglement because it seems quite clear that that it was the
concern of the Court that taxation would mean more entanglement
than exemption.
As to entanglement, this Act has a great deal of it, far more than I
think any of the other legislation involved in this series of cases.
Not only these inspections and these teacher gradings and all of
those new rules but very, very important, section III (III) of the Act
109 forbids, “any subject matter expressing religious teaching or the
morals or forms of worship of any sect,” to enter into the teaching of
these subjects.
Now does this not require the state to conduct a very continuing
surveillance to use the Chief Justice’s words which the Chief Justice
said was the very hallmark of entanglement, impermissible
entanglement.
Now, we don't charger there's going to be a wholesale evasion of this

by let's say the catholic schools but we do say that it's only an arch
secularist who would insist on the immutable secularity of any
subject, particularly something like physical science.
I mean after all it was astronomy and not theology that got Galileo in
trouble, and the physical science is all upfront, it seems to me with
the temptation and likelihood.
In fact, I think that we could prove if we had discovered that a cleric

should not and ought not to teach astronomy without making it
God-oriented in a religious school.
Now, I think the state has got to therefore police this, and I don’t
think that any gumshoe from the department of education should be
lurking around to see if Sister Mary is using the Bible in French to
teach the French language instead of Voltaire.
I think it's unconstitutional, I guess the worst kind of entanglement

with vengeance.
Now as to the purpose and e ect test, of course, the District Court
ignored the fact because we had no record.
As purpose, they took the Act’s preamble, they took the Act’s self-
serving declarations of secularity, they refused to look—
Byron R. White
You say there's a di erence between purpose and e ect?

Yes sir.
Byron R. White
I think there are separate tests?

I think there are separate tests.
Well, there are two aspects to one of the tests I think they could be
separate, yes because, I think as it was articulated both by Chief
Justice Warren in McGowan and by Your Honor in your concurring
opinion in Schempp that both requirements had to be satis ed,
therefore in that sense they could be separate because if either the
primary e ect.
Byron R. White
I thought what I said in the concurrence in Schempp was after
joining, the court's purpose and e ect test, mine was simply an
elaboration on the purpose and e ect test?

Yes sir.
I think they can be separate.
Byron R. White
I don’t think that that concurrence regarded them as separate tests.

You think you did not separate between purpose and e ect, there’s
two tests.
Byron R. White
No I don’t suggest that, I say that that was a purpose and e ect test
and some other test, entanglement or involvement.

Well I think Your Honor, I really think that all of these tests and I
think there are eight threads, are a seamless web.
I think everyone a ects every other one fascinatingly enough every

single one can be found on the memorial and remonstrants.
Not one single one of the tests that the Courts uses, I do not nd
somewhere in the language of that document.
But as the purpose, the District Court simply refused to look at the
legislative history and this is o cial legislative history because
Pennsylvania prints it all apparently on the mistaken notion that I
was trying to get them to examine into the motives of the legislator.
Well I wasn’t getting into the motives, I was talking about the
committee reports and the full legislative history and the signi cance
is this.
The appellees say the purpose here is to provide children in

Pennsylvania with instruction in these four subjects as the preamble
said.
Well, if you look at the legislative history, you’ll nd that nobody ever
suggested there was any such problem.
Nobody ever suggested there were any children in Pennsylvania than

not being instructed in these subjects.
If that had been the search, the committee would have explored
presumably for alternative means of teaching these subjects.
What they explored was all of the ordinate means of giving aid to the
parochial schools from shared time and all the way through to this
device which they nally adopted.
It means, it seems to me there’s only one question and that’s

whether or not the supposed exigencies, economic exigencies of the
subject, the overwhelming sociological considerations are such as to
persuade this Court to assure strict construction in submission to
what is said to be the practical realities.
And you're asked to do this by the way without a record.
Now there's been a contention of fact made here and that is that if
the aid isn’t forthcoming, this school system will wither and die.
I don’t think it's relevant, if it is relevant, it must be pleaded, it must

be proved and I'm entitled certainly to extensive discovery on the
question because here the appellees in e ect are asking this Court to
take judicial notice of a point of economics and sociology about their
school system which by the way the known statistical data is on
which it's quite equivalent with this point, you know we’re having a
decline in all schools at that level.
Byron R. White
The legislative ndings of it Mr. Sawyer?

The simple nding was that there's a nancial crisis, that’s all.
And of course I know of no institution and our society except perhaps

the military that isn’t in a nancial crisis and I assure that the schools
are -- the public schools are in a nancial crisis and I accept that but
there’s no nding in the sense that so many schools, this and the
closing there have been consolidations.
Warren E. Burger
Suppose it is true, suppose the record showed conclusively that this
was true, how does that fair on the constitutional question in your
view?

In my view, Your Honor, it doesn’t bear at all and there's no doctrine
that says that if something is more expensive, to be done
constitutionally, that’s a grounds for doing it unconstitutionally.
But we cannot be unaware Your Honor with a massive amicus briefs

that this issue has certainly upturned itself very much into this case
then is raised by the appellees in the brief in this Court and it's there
and they say it's there.
I'm skeptical as to agree that it's there and I’d like to have discovery
on the question before a vast principle of constitutional law is asked
to be decided by this Court on the supposition that there is this kind
of practical problem.
And to speak very candidly, raised by a church where the gures

would show that the capital of assets of the church vastly exceed that
of every other denomination in the United States combined.
And I don’t, for one believe that because of nancial di culty that
the Catholic Church is going to give up a mandated function for
which they fought and indeed in Philadelphia in 1941 died for the
principle in the condition of a uence in which everyone in society
now nds themselves.
Now, I must get on if I may that the Fourteenth Amendment point,

there the Court said no standing, in any of my plainti s, the charge
was that the non-public schools or de facto racially segregated rather
by reason of policy or tradition or practice or cost or residential
pattern that they are.
But basically it's a White school system, the gures that are available
from public sources are in the brief.
Again we have no record.
The idea is this, that with this amount of tax money going to these
schools, they are su ciently quasi public so that if they discriminate
and segregate that is state action reachable by Equal Protection
clause of the Fourteenth Amendment.
As for standing, I think it's a case where to nd out whether or not

Mr. Lemon, who is a Negro parent with Negro children in the public
school than who alleges in his complaint a deleterious e ect upon his
children’s schools by reason of the subsidy to the others, whether he
has a su cient personal stake in the outcome which has been the
touchstone of standing in these matters, he is a taxpayer, would be
illuminated by discovery.
I think the two are interchangeable because it may depend indeed on

how pervasive the segregation is and how much discrimination there
is, and we can't nd out any of that without discovery in the matter.
Now I mentioned, -- well one point more on the Fourteenth

Amendment point, Mr. Douglas, not so long ago said this in Jones
against Mayer said the contrivances with some states have concocted
to a ord to command of our decision in Brown versus Board of
Education are by now legendary.
Now, I for one can't, (Inaudible) how if you validate a purchase of

services contracts scheme where in fact, no new educational bene t
is being conferred, it's merely a method of channeling funds, how
that device is not going to be available to the formerly, they adjure
state still resisting Brown v. Board of Education.
Maybe that’s possible to cut it.
I for one would think di cult.

Now I said in the beginning that I thought there were eight tests used
by the Court and that this Act violated all of them, just in a sentence,
rst of all the general at principle no tax money to churches coming
down from the memorial or remonstrants might stay through the
language of many, many of these cases and that’s on the face of the
Act.
Then the primary purpose, if that’s one and primary e ect, primary
purpose, it seems clear from legislative history, primary e ect, we do
need discovery, I think one can discern that there is some primary
e ect.
Then the concept of sponsorship which was in McCollum, it was

certainly an angle, Mr. justice Brennan distinguished the Zorach v.
Clauson situation from the McCollum situation on that basis, it was
in Schempp that is the state must not sponsor or even appear to
sponsor a religion which is one of the points of Schempp.
Then preference, the fact that this Act manifestly prefers one religion
over all others and prefers that very most two or three religions over
all others and a rmatively discriminates against those religions too
poor, too scattered to even think about running a school system black
store front, mission type of churches for instance.
Then interdependence, and that’s on the face of the Act because the
Act says it's dependent.
Entanglement and that’s shown by Section III (III).
Excuse me Your Honor, I didn’t see the red light.
Warren E. Burger
You may nish your points and will enlarge the --

Thank you sir, I have just one more.
Entanglement and nally point eight, if it's secular, the Act

nonetheless does use religious means to accomplish a secular end.
And in my research I nd no matter before this Court in which all aid

of those tests would appear and some facially, three facially to be
violated by the Pennsylvania Act, and thank you for your indulgence
Your Honor.
Warren E. Burger
Thank you Mr. Sawyer.
Mr. Creamer?
J. Shane Creamer
Mr. Chief Justice may it please the Court.
I am Shane Creamer, the new Attorney General of Pennsylvania.
As I had informed the Court by an earlier letter I took o ce in late

January and since my entry into o ce is very recent and my coming
into this case is very late, I will not be arguing this case today.
However, it is my desire to emphasize to the Court that the

commonwealth has led a brief in this case that I have studied that
brief and I can concur fully in those arguments.
I likewise studied the brief of the appellee schools and fully concur in
that brief.
I shall now turn the argument in this case over to my associate, the
attorney for the appellee schools, William B. Ball desiring however
merely to conclude with this one statement.
The commonwealth, as Mr. Sawyer has indicated is and has been in

deep nancial crisis.
The public schools of Philadelphia, Pittsburgh, Scranton and the coal

regions are faced with bankruptcy.
One out of every four children, close to 600,000 presently attend

some 1181 non-public schools in Pennsylvania.
In Pittsburgh, our non-public school population is 29% of the total

school population.
In Philadelphia, it’s 34%.
The public schools of Pennsylvania could not begin to take on the

burden of any substantial non–public school population.
It is not a question of it's being more expensive, it's a question of

impossibility.
The Act under question today is Pennsylvania’s solution to an
educational crisis.
We therefore urge this Court not to upset this Act which our state
needs so vitally.
Warren E. Burger
Then you tend to agree with Mr. Sawyer’s point if this Act, the
orientation, the genesis of this Act was to aid distress situation in the
private schools of Pennsylvania.
J. Shane Creamer
The crisis in education and paying for education Your Honor, yes.
Thank you very much.
Warren E. Burger
Mr. Ball?
William B. Ball
Mr. Chief Justice and may it please the Court.
I'm speaking here today for seven Catholic, Protestant and Jewish
name dependent schools who are the appellees in this case.
I think Mr. Chief Justice, I should begin by trying to clear up a point

which hangs over the case at this moment, a preliminary point which
relates to the question of whether the Court below improperly denied
discovery and trial to the appellants and it is our contention that
what the appellants have brought to this Court today Your Honors is
an attack limited to the facial constitutionality of this Act.
Their complaint resided that they attacked the Act both on its face
and as applied.
Let me come to the apply constitutionality point for a moment.
Their complaint in paragraph 7 says that they attack, they sue these
seven schools as representative of all sectarian educational
institutions in the commonwealth, defendant class action.
We then brought a motion under rule 23(c) to test this application.

We wanted in other words to a ord Due Process for the seven schools
which have a great deal of variation among themselves for all the
remaining 1174 schools in the commonwealth which are under
contract and nally even to the plainti s so that they would have an
opportunity to come in and prove classes and subclasses and whether
one or more or any of these schools belonged to any of this particular
classes.
Now the plainti s at this point withdrew their class action.
They led an answer which is contained in the appendix at A42,

plainti agrees that the action will not be maintained as a class
action under Rule 23(c).
This was followed promptly by the pre-trial order of the lower Court
which said, the action shall not be maintained as a class action.
Therefore, the issue of representativeness of these schools went out

of the case.
This was the rst wing of their application attack, coming to their
second wing.
Did they attack the seven schools, the application of the Act as
applied to just the seven?
The lower Court asked that all parties submit a memorandum on the
propriety of convening a three-judge court.
Did the plainti s want a three-judge court or not?
They insisted upon a three-judge court and in their memorandum,

thinking now of whether they attack the application of this Act to
these seven schools.
In their memorandum on the propriety of a three-judge court, A60 in

the appendix, they said, certainly it would be a strange misreading of
the complaint to in any way construe it as limited to a particular
grant, to a particular school or class of schools or to anything less
than an attack on the entire statutory scheme.
And my friend here on oral argument nailed this down, if it weren’t

nailed down su ciently, by saying A65 in the record, I am not saying
and I think I have made this clear that this Act is only
unconstitutional as to these defendant schools.
I am talking about it being unconstitutional in its entire purpose,
thrust in e ect, in 67 counties of the state of Pennsylvania.
I think therefore, we have to face the question of what is left in this

case, plainly an attack on the facial constitutionality of the Act and in
that event, what would be uncovered by the discovery and trial which
the plainti so eagerly seeks.
Well, let’s ask, that tax money is involved, it's on the face of the Act.
The Act calls for the expenditure of tax funds.
The payments are made to sectarian institutions, the Act calls for
payments to be made to sectarian institutions.
The Act de nes a non-public school, the payee in this Act, a non-
public school as any school in which the requirements of the
compulsory attendance law may be met or any school plainly include
sectarian schools, that sectarian schools have sectarian purposes,
would this be brought out upon discovery and trial?
This Court is taking judicial notice of this.
This Court stated in Board of Education versus Allen that parochial

religious sectarian schools, church related schools serve two goals,
secular and sectarian.
Therefore there would be nothing to be discovered upon trial with

respect to that or that a high percentage of the non-public schools in
Pennsylvania are under Catholic auspices.
Indeed the Court must be deemed to have known that in Allen, this
indeed is a fact of which this Court can take judicial notice, that
seven schools blend sectarian and secular instruction.
Well, if they do and they may, but if they do, this is in violation of
plain terms of the Act is contained in section III, subsection III which
provides that in the teaching rendered, if the school is to be paid,
there shall not be included any religious teaching or the morals of
forms or worship of any sect and I will come back to that provision of
the Act in a moment, Your Honors because it's one that I would like
to discuss under a discussion of the Act itself, in terms of the Act
itself.
Now, only this Court can say whether the lower Court was right or
wrong and its estimation of whether this Act stands up on the
Establishment Clause.
But if the lower Court believed that this Act was constitutional under
the Establishment Clause, certainly the lower Court was not merely
within propriety but mandated to grant our emotion under Rule 12
(b) 6 rather.
And this was with complete propriety and with complete Due Process
to the plainti s.
It's perfectly evident this case has been down here for a long time, as
perfectly evident it seems to us that this case is ripe, if not overripe
for a decision by this Court as to the facial constitutionality of this
Act under the Establishment Clause.
And I would like now to come to the terms of the Act itself because I
think with all due respect to Mr. Sawyer that he and I have read
di erent Acts 109.
Hugo L. Black
Where is it published?
William B. Ball
Pardon me sir?
Hugo L. Black
Where is it printed, the Act?
William B. Ball
The act is printed Your Honor, appendix A18.
Hugo L. Black
That’s all of it?
William B. Ball
Pardon me sir.
Hugo L. Black
That’s all of it?
William B. Ball
Yes sir that’s all there is of the Act, except for the Cigarette Tax
Amendment Your Honor, to which our brief referred on page and
footnote 2 which simply changed the basis of the funding.
Hugo L. Black
You mean they're making the cigarette (Inaudible)
William B. Ball
Yes Your Honor, that’s right, that’s right.
Hugo L. Black
Any addition to the horse race funds?
William B. Ball
No Your Honor, in substitution for the horse racing nds.
Hugo L. Black
Oh I see.
William B. Ball
This Act represents one state’s e ort to grapple with a serious social
problem which it’s faced, like a number of other states that face the
same problem.
The Act covers all non-public schools, that’s cast in the familiar
purchase of service parks which is well established in eld of hospital
care and child care as a traditional means of providing limited and
partial support to the achieving of publicly needed functions by
bodies capable of doing it.
It takes a xed percent, speaking now in terms of limitations in this

Act, it takes a xed percent from a single set tax source as the fund,
does not take any money from the general fund of the state, it does
not take any money from the public school fund.
Section V of the Act contains a speci c stricture saying that no funds

raised for the support of the public schools shall be used for the
evenly administrative purposes of this Act.
Hugo L. Black
Would that a ect its constitutionality?
William B. Ball
It would in Pennsylvania, Your Honor.
It would in Pennsylvania.
Hugo L. Black
Would that a ect the federal constitution?
William B. Ball
I do not think so that this is a question that could be answered.
However, under the Pennsylvania constitution, there's a speci c

stricture against use of the public school fund.
Now, it takes this money and it pays it by reimbursement.
The rst payment under this Act is not made by the state.
The rst payment is made by the school, the school pays for certain
services rendered in four subjects, four prime, national, public
interest subject, mathematics, modern and foreign languages,
physical science and physical education.
When the state has ascertained that the school has paid for such
instruction, then and then only and --
Byron R. White
Well, what the state has ascertained that the school has paid for such
instruction, what does that mean?
William B. Ball
That means that the school will have presented to the state, Your
Honor a claim containing three elements of cost.
State approved textbooks, by the way, these are not textbooks that
the school submits to the state, there are textbooks that the state
must approve, that’s speci cally provided for in the Act.
State approved textbooks, state approved instruction materials in the

four subjects and nally that part of a teacher salary which is
allocable to the teaching of math or modern foreign languages or
physical science or physical education.
That claim is submitted in a form which is contained in the

regulations and after audit.
Byron R. White
Now what does audit mean?
William B. Ball
Audit means that the state uses the procedures it would use in the
case of the public schools and it audits the accounts that relate to
these three items of expense.
In other words, to prove out --
Byron R. White
What inquiry is made whether in fact these three items of expense do
or do not involve any religious instructions?
William B. Ball
The audit doesn’t relate to this, Your Honor.
The audit does not relate to any inspection of the performance of the
teacher which would be the only item you're talking about because
the textbook itself and the instructional material itself are already
state approved.
Now the teacher, as far as the teacher’s role goes, there is no

inspection or monitoring of the teacher’s performance.
Byron R. White
Now, the teachers include whom?
William B. Ball
Teachers include persons who are employed by the school to teach in
the schools.
Byron R. White
May they be nuns?
William B. Ball
Indeed they may Your Honor.
Byron R. White
They may be.
William B. Ball
Indeed they may, yes, indeed.
Byron R. White
Do these inspections contemplate on the inquiry into --
William B. Ball
There is no inspection provided for in the Act, Your Honor other than
audit.
The controls, the secularity --
Byron R. White
Would you be concerned?
William B. Ball
Would I be concerned?
Byron R. White
If there were a inquiry into what a particular nun did or whose
expense, reimbursement or so?
William B. Ball
I would be concerned with respect to her performance in terms of
quality.
Byron R. White
I'm wondering if you’d be concerned as to that kind of inspection of
member of a religious --
William B. Ball
Yes I think I would be certainly.
Byron R. White
On what school?
William B. Ball
I would be concerned with it in a public school as well as in a private
school.
In public schools Your Honor, we have people of intense religious

commitment.
We have teaching in public schools in Pennsylvania Ministers.
We have girls in Mennonite bonnets, I have been defending some

Mennonite people in Virginia recently and I can tell you that they're
as religiously committed as human beings can be.
But we trust, we trust these people, having made a commitment

under a state contract, we trust these people to observe the law.
I think this is what your question goes to.
Potter Stewart
Suppose you found a fact that they did not, like from whatever source
you learned that, then what would happen?
William B. Ball
If the state found that this neutrality was not observed, that this
provision of the Act which says that there may be no introduction of
religious teaching in the four relatively non-value related courses in
question, then the state, if I may nish my sentence Your Honor.
Potter Stewart
Yes, please.
William B. Ball
Then the state would not be able to pay.
The state would not be able to make the payment.
Potter Stewart
Well doesn’t, there hasn’t of that kind of inspection, that kind of
inquiry, doesn’t that get the government o cials into inquiries into
religion that --
William B. Ball
Well Your Honor the problem I have with your question is that I do
not know of any inspection, any monitoring that takes place of the
instruction.
The safeguards that this Act contains are like the safeguards found in
Board of Education versus Allen where indeed the New York Civil
Liberties Union's main brief, the main brief in the case said that there
can be no secular instruction in a sectarian school and that if you put
the textbook, the state furnished textbook into the hand of a
sectarian teacher and in particular, a religiously committed person,
then it was inescapable that that person would per force introduce
whether dishonestly or out of the misplaced idealism, would per force
introduce religious values into that teaching, a matter which by the
way is pedagogical nonsense.
But, what this Court said was that we cannot presume that public
school administrators and the people administrating the New York
Act, section 701 of the New York Act will not act with honesty.
And indeed we cannot.
In the public school system today, there are many people who dealt
us would wish to introduce their own religious value concepts in the
teaching, particularly of the social sciences.
And who might want to engage in Bible reading, prayer and other
religious practices which the law of this Court, law of the land says
they may not do.
We trust them to observe this, we don’t have a religious monitor

placed in the public school classroom, neither do we, neither should
we in the case of the teaching of these four subjects merely because
they're taught by non-public school teachers who indeed may be
that part of our community, a girl from this neighborhood or from
that who makes her religious profession no less a profession than
many other people make.
Hugo L. Black
Who employs these teachers?
William B. Ball
The non-public school employs the teacher, the non-public schools
in Pennsylvania are Catholic, they are Protestant, they are Jewish,
they are non-sectarian, etcetera.
Hugo L. Black
Who employs the teachers for these particular schools?
William B. Ball
The school employs the teachers.
Hugo L. Black
(Inaudible)
William B. Ball
The school, in the case --
Hugo L. Black
Who runs the schools?
William B. Ball
It depends upon the school in question, Your Honor.
Hugo L. Black
What?
William B. Ball
It depends upon the school in question, since there has been no
application attack on this Act, we don’t have, though there could be
made an application attack on this Act, we do not have a particular
instance of a particular school.
For example, Akiba (ph)
Hugo L. Black
But suppose they have been controlled by the church that runs --
William B. Ball
They may be and indeed many schools are.
Hugo L. Black
(Voice Overlap) they are, not maybe.
William B. Ball
No, I represent for example Akiba Academy.
Akiba Academy is not controlled by any church so far as I know, it's a

Jewish school.
Hugo L. Black
Is it a Catholic school?
William B. Ball
Before speaking of catholic schools, they are controlled by the church,
yes.
Hugo L. Black
And the contribution goes to the Catholic schools?
William B. Ball
There is not a contribution, Your Honor if I may say.
Hugo L. Black
Whatever you call it.
William B. Ball
Well I do call it something di erent Your Honor.
The payment that is made is the payment that is made to reimburse

an actual cost, after that cost has been encountered, has been
encountered in the performance of the secular function, has been
encountered in the performance of the secular function which is
evidently needed to be performed in Pennsylvania and which does
not depend, by the way upon whether, in answer to Mr. Sawyer’s
point, whether this function was being rendered before because of
the test of a constitutionality of any purchase of service, it is made
depend to upon whether a new service is brought into being, some
expansion of service, this wouldn’t make any sense at all, the test laid
down by this Court in Allen was not whether new services were being
rendered but indeed whether a valid secular function was being
performed, a public interest matter, a public interest service that the
state needs to have performed.
And in Pennsylvania today, this is badly needed.
One fourth of all of the children of the state are in parochial schools
and they have been for decades.
This enormous burden is borne by these schools.
And if we say that they cannot, if we are to say they do not perform
secular functions, a thing we passed I believe in Allen two years ago,
if we say they do not perform secular functions, then we are really
saying that there is no reason for the compulsory attendance laws of
Pennsylvania and in fact everything wrong with using the compulsory
criminal sanctions of the state to require children to go to those
schools, to require children to go to those schools if in conscience
their parents say they prefer to have them there rather than in a
public school.
Harry A. Blackmun
Mr. Ball, help me along at this point.
I don’t know whether you're making an argument that need gets you
over a constitutional hurdle or not but this isn’t really what I am
concerned about.
When the state in the phraseology of the Act purchases these

functions, I don’t know whether this is euphemism for a grant or not,
doesn’t it free the institution to use the dollars it does have for
religious purposes?
William B. Ball
Well, I have two answers for that Your Honor, rst of all, if it does,
then also this happens in Medicare with Methodist, Catholic, Jewish
in physical hospitals and so on. Second, because these are run by
religious institutions.
But secondly however, I try to say a few moments ago, Mr. Justice
Blackmun that the payer, the initial payer, under the Pennsylvania
Act, is the school itself.
It has to spend before the fund is replaced.
It's not as though, it got a bounty on top of what it already has.
You see one of the things, when this Act was being drawn, that I
recall very, very well was the Auditor General’s insistence and the
Attorney General’s insistence, Mr. Creamer’s predecessors insist that
it be shown that the amount claimed had been actually expended.
This is a quality provision in the Act, like the standardized testing and
so on, to make sure that the school plowed into this Act, plowed into
this service, rather, plowed in to child education, its own money
before this would be replaced.
Harry A. Blackmun
To what extent is it plowed in if it knows it's going to be reimbursed?
William B. Ball
If it knows it's going to be reimbursed, if it's going to meet the test
that the state has required, it will have satis ed the standardized
testing requirement and the audit requirement.
Yes it knows just as a sectarian hospital knows that it can count on

this money coming in.
And indeed it should.
This is one of the purposes of this Act, there's no doubt about it.
There's no concealing in our part having those, Your Honor, but the
fact that one of the purposes of this Act is to keep one quarter of
Pennsylvania’s educational plan going.
We make no (Inaudible) about that.
These schools are doing a tremendous job in the public service and
the question is then, are they in the educational eld?
Do they serve the public and if so, can they be aided in any way, can
they be aided in any way in this very limited form of supporting the
services they render seems to us to be a way which has no primary
e ect of advancing religion, there is no Catholic calculus, there is no
Lutheran logarithms or Jewish gymnastics.
We’re talking about aiding them to perform a service that everybody

has to have.
Harry A. Blackmun
This is the problem for the large dimensions – we have indicated in
some of the cases from the south that where the state nances a
private school becomes a state agency.
Are these state agencies and this race is the question with the Brown
versus the Board of Education.
William B. Ball
Yes Your Honor.
Harry A. Blackmun
Now applies to this school.
You don’t address yourself to that in your brief, as I read it except to

say that the persons present here didn’t have a standing to raise it?
William B. Ball
Well Your Honor, it was up to the plainti s of course to frame their
complaint as they would bring to bear the parties whom they would
and had they had Equal Protection standing, had they a single
plainti , one individual or anybody who had Equal Protection
standing, indeed we would be prepared to argue the Equal Protection
issue here today, but since you inquire, Your Honor, with respect to
state action and whether these schools would be participating in
state action by virtue of the fact that they receive some funding from
the state, I think would be a question of degree, I would say it's a
question, it is a question.
I was thinking of the case of Powell versus Miles, Judge Friendly’s

decision on the issue of state action.
And certainly it is true that there's a vast di erence between

receiving say 10% of your income from the state and a larger percent
and what other things may be involved in creating the state action
situation.
In a proper case, will we have to brief and argue that point very
thoroughly.
Harry A. Blackmun
So a Black could get into one of these Catholic schools even though
he wasn’t a Catholic?
William B. Ball
Oh indeed a Black could get into one of these Catholic schools if he
were not a Catholic.
We have schools in the inner city of Philadelphia.
Harry A. Blackmun
An agnostic?
William B. Ball
Oh heavens, yes.
We have schools in the inner—
Harry A. Blackmun
Any Black could get in there?
William B. Ball
A Black Agnostic to Black Protestant to Black Catholic, we have
schools, Your Honor in the inner city of Philadelphia which have been
the tie together of racially mixed neighborhoods over the decades
and which are to a substantial extent made up of protestant Blacks,
who after graduation become alumni Black Protestants.
Harry A. Blackmun
I know a lot of Presbyterian and our Presbyterian schools always
welcomes a chance to get a Catholic and work him over.
Byron R. White
Mr. Ball let me get back to one question and I’ll stop.
What di erence in the ultimate result is there under the Pennsylvania

plan and if it provided X dollars for the purchase of religious
instruction?
Is there any di erence in the ultimate result?
William B. Ball
Every di erence, Your Honor.
Byron R. White
How, the schools end up nancially exactly the same way?
William B. Ball
Well, to begin with under this Act, the state cannot pay for a religious
textbook and under the constitution they cannot pay for religious
instructional materials and under the constitution.
And thirdly, this Act prohibits any teacher from teaching or

introducing any religious matter into mathematics, modern and
foreign language, etcetera.
Now, if the state provided money for the teaching of religion to

support a religious course which would be patently unconstitutional,
yes the school might get, certainly the school might get the same
income but the constitutional result would be, 183 is di erent.
If a given school, religiously a liated school, today were to claim
$800.00 for the teaching of math during that year and under the Act
you're speaking of, the unconstitutional Act of which you speak, Your
Honor, it would get $800.00 for the teaching of religion, no nancial
di erence but the constitutional di erence would be totally di erent.
Byron R. White
Well, except that the school is using its other dollars for what is not
replaced by the State Act, would not result identically the same, is it
not so?
William B. Ball
If the state were to pay the school, $800.00 for the teaching of
religion, and then the nancial result would be the same, yes Your
Honor, the nancial result would be the same.
But this of course would have been true of the nancial result in
Allen, this Court said as to Allen that in e ect, the e ect of the New
York Textbook Act was to save the schools, the parochial schools, an
aggregate sum of millions of dollars.
This didn’t seem in the view of the Court of Walz, May 1970 to render
the Act of New York unconstitutional.
Byron R. White
Well, there to say that the di erence in Allen was that the parents
there to for had been paying for the books.
William B. Ball
Well this is what he said, I don’t think this is true on the record in
Allen, I think in some situations they were and in some situations
they were not.
I should like to conclude, Your Honor by a quote.
Hugo L. Black
I would like to ask you one question.
William B. Ball
Yes Your Honor.
Hugo L. Black
I asked you something along that line a while ago.
I think it's relevant, it may not be relevant in these schools, I'm not
talking about now, are there any of these schools in which those who
control the school, the Catholics or the Jews or any other religious
teachers’ organizations, both hire and discharge the teachers?
William B. Ball
If I understand your question correctly, are there religious schools in
which those who control the school hire and discharge the teacher?
Hugo L. Black
That’s right, not the state.
William B. Ball
Yes, undeniably sir.
Hugo L. Black
The state has nothing to do with it.
William B. Ball
Yes I cannot say as to these seven schools which are the only
defendants in this case but looking to your question which perhaps
relates to facial constitutionality, yes I would be sure that would be
so. May I conclude Your Honor?
We stated in page 13 of our brief the following, in our now heavily

welfare oriented society, massive governmental spending is dominant
and individual men and women, even when banded together in
associations and institutions, no longer possess the economic
resources with which to maintain diverse non-state endeavors in
education and welfare.
Your Honors, education is certainly the most precious aspect of

voluntarism that we have, the most meaningful in terms of a free
society, the economic and nancial data which we have set forth in
our brief shows the obvious that taxes and in ation are simply going
to render it impossible for schools such as those that we are
describing to continue to render service and to give individual
parents, the opportunity for a conscientious choice in education.
I think it's very clear that this act on its face is general legislation, it
contains no religious classi cation or gerrymander, it is non-
preferential, it employs essentially religious means to achieve
essentially secular ends, without any primary e ect of advancing
religion, inhibiting religion and I must refer you there to our brief on
entanglement, because we have had an inadequate opportunity to
discuss the whole question of entanglement.
But we are up against the facts of life in Pennsylvania, not gments

of ne spun doctrine which never proceeded from the minds of
Madison or Je erson, we are up against such facts as Mr. Creamer
has described.
There is no reasonable alternative to this Act.
Pennsylvania and her public schools are bankrupt, millions of parents

and children will be irreparably harmed, if this program which is now
in its third year of operation and going into its fourth year of
operation should be terminated.
I thank you Your Honors.
Warren E. Burger
Thank you Mr. Ball, Thank you Mr. Sawyer, Mr. Attorney General, the
case is submitted.
We’ll hear arguments next in Number 569 Earley against DiCenso.
Mr. Cottam.
Charles F. Cottam
Mr. Chief Justice, members of this honorable Court, if it please the
Court, I will open and present the case numbered 570 and will be
followed by Mr. Williams who will present 569.
I expect to take approximately 15 minutes in presenting 570.
Now Your Honors please, this matter numbered 570 is before you on
appeal from a three-judge District Court in Rhode Island declaring
one of the public laws of 1969 which is commonly referred to as the
Salary Supplement Act on the grounds that if violates the First
Amendment of the Constitution of the United States, by reason of
the entanglement that is inherent in the Act.
The case comes before this Court with rather a substantial record,
there is substantial documentary evidence, depositions and there was
oral testimony below.
I would like for just a moment to analyze the Act which is very brief.
Section I of the Act sets forth the legislative ndings and in essence
it sets forth much of the crisis, which you have heard testimony
about this morning involving these other cases that have been before
you.
Particularizing in Rhode Island, the non-public schools are facing a

crisis at the elementary school level.
At this level, 45,000 or 25% of these children are educated in non-

public schools.
The crisis arises by reason of the nancial di culties of the schools

in their ability to o er a substantial or a competing salary for
quali ed teachers that are quali ed and are teaching in the public
schools of the state.
They pointed out that in 1960, this crisis was recognized by the state
on behalf of the cities and towns in which the state of Rhode Island
participates not rather heavily in the cost of the education of the
public school students.
Section II of the Act pertains to de nitions and under the Act, the
non-public school is a non-pro t school and it is one where the per
student cost of education does not equal or exceed the cost per
student cost of education for a public school student.
Now, a non-public school teacher is de ned as a teacher in a non-

public school and one who teaches only subjects which are required
to be taught in the public school and one who teaches only subjects
which are required to be taught in the public schools of the state.
Now those non-public school teachers who become eligible for what
we call a salary supplement which is roughly 15% of their salary,
must satisfy certain requirements that are set forth in the Act.
That is, number one the teacher must request the supplement.
Number two—
Byron R. White
That is the individual teacher.
Charles F. Cottam
The individual teacher, Your Honor.
Now the teacher must also teach secular subjects to the same extent
as those subjects are taught in the public schools of the state.
And that teacher must also use materials that is textbooks and the
like which are used in the public schools of the state and in addition
to this, the teacher must promise that he will not teach a course in
religion so long as he is receiving the salary supplement.
Now, the regulations that are set forth or the power to make
regulations that are given in Section V of the Act, make it very clear
that the payment is to be made directly to the teacher and not the
schools.
It’s a mandatory requirement to be put in the regulations.
Potter Stewart
What check is made on the teacher’s representations?
Charles F. Cottam
There’s no check, there is a statement signed, Your Honor.
Potter Stewart
And just on the basis of the signed statement, if the signed
statement contains the information would satisfy the provisions of
the statute, then the (Voice Overlap)
Charles F. Cottam
That's all is required.
Just a promise of the teacher which is on a form developed by our

Commission of Education.
Potter Stewart
And what is the amount, you said 15% of what?
Charles F. Cottam
It’s 15% of the salary that the teacher has contracted for and there’s a
limitation, that salary then including the supplement must not
exceed the average maximum pay to a teacher in a public school
system of our state.
Potter Stewart
For that teaching that grade and that subject?
Charles F. Cottam
Yes, Your Honor.
Warren E. Burger
Does your state have statute comparable to that of Section 1001
Federal statute on -- presenting a false certi cate to secure payment
from the state?
Charles F. Cottam
No, it does not Your Honor.
Warren E. Burger
Would it be a an o ense of any kind to present a false certi cate
under other statutes?
Charles F. Cottam
As I recall, it was not a sworn statement.
It is a direct misrepresentation and because in the presence of

evidence to that contrary, you would lose the supplement.
Warren E. Burger
And it will be the only sanctions?
Charles F. Cottam
Yes, Your Honor, unless the state itself could prove a damage claim
for misrepresentation which under Rhode Island Law would mean
you’d have to prove a preexisting intent.
Now, Your Honor, the complaint that was led in this case alleges in
substance that this Act, which I just highlighted to you, provides
direct aid to a parochial school.
And I think, in addition to that, it alleges that the purpose and
primary e ect of the Act is to advance religion, the answers that were
led amount to a general denial.
As far as the evidence is concerned which I think -- it should be of

great interest to the court and was in the court below is the
handbook of the school regulations issued by the Roman Catholic
Diocese at Providence that referred to any opposition brief and the
depositions in the oral testimony that was presented.
Now, the testimony itself is I think of a great importance because it

highlights the di erence that I think this Court has indicated in the
past decisions between so called atmosphere and permeation.
The evidence clearly shows that these all parochial schools that are
principally a ected under this Rhode Island Act, that there are --
Potter Stewart
May only a lay teacher be inept?
Charles F. Cottam
No, there is no restriction Your Honor, we do have the deposition of
one religious teacher who is on leave from her order who was in.
But its faith of God to believe that a religious would qualify under the
Act because their life is dedicated to the propagation of religion and
under this Act, you are immediately disquali ed if you teach religion.
Potter Stewart
This is a case where one instructor stopped the (Voice Overlap)
Charles F. Cottam
Yes Your Honor, yes Your Honor.
Potter Stewart
That’s when you’re making the application?
This is the case.
Charles F. Cottam
Yes it is Your Honor.
Now, before I leave the act --

Harry A. Blackmun
How many of the schools above the parochial schools?
Charles F. Cottam
I think there are some 90 parochial elementary, Your Honor.
Harry A. Blackmun
Well, How many of that that were bene ciaries under this Act?
Charles F. Cottam
Well, there are some 29,000 or almost 30,000 elementary school
children that are a ected by this Act.
Warren E. Burger
Out of how many?
Charles F. Cottam
Out of approximately 45,000, roughly 66% that comes from you will
notice in the legislative ndings that refer to roughly to 45,000 as
being educated in nonpublic schools.
But the testimony of the superintendent of schools for the diocese in

Providence Father Moen indicated that there are roughly 29,340 with
maybe a couple over.
Now Your Honor, as far as the testimony was concerned there's just
no question about the proximity usually of these schools to a church
the presence of statutes and the presence or cruci xions.
But I do think what is of paramount importance is the absolute

unrebutted unequivocal and un-contradicted testimony of every
deponent and every witness that religious content was not injected
into the teaching of a secular subject.
In other words --
Harry A. Blackmun
(Inaudible)
Charles F. Cottam
You’re referring now to a religious person, a nun?
Harry A. Blackmun
Yes.
Charles F. Cottam
Oh yes, you couldn't qualify under this unless you gave up -- that
testimony as I indicated is just unrebutted and it's unequivocal.
Byron R. White
Now is the payment made to the teachers as her salary (Voice
Overlap)
Charles F. Cottam
No, Your Honor, it’s made twice a year, in February and in June, under
the regulations they were issued pursuant --
Byron R. White
Directly to the teacher?
Charles F. Cottam
Directly, that is a must, the statute.
I think that Section 5 requires that the salary must be paid directly to
the teacher.
Warren E. Burger
I think we’ll suspend now for lunch.
Charles F. Cottam
Mr. Chief Justice, may it please the Court.
I would like to correct an impression I may have left with this Court
this morning Your Honor when you asked me the question was there
a false document statute -- I thought Your Honor was referring to
the Act in question that is the Salary Supplement Act when I
responded no, there is such a --
Warren E. Burger
A general statute?
Charles F. Cottam
Yes, there is Your Honor.
And there is also a larceny statute where a document is led with
false intent.
With the few minutes remaining Your Honor, I think I will not get in
to an analysis of the decision of the court below but rather I would
like to take a moment again to call your attention to the evidence
that was submitted to the Court below and the ndings.
And I would like to make the observation that we have no quarrel

with the ndings as made by the Court below.
The question, we have and the disagreement we have is what the

Court's analysis of the Schempp, Allen, Walz test and its presence
and existence and the e ect of Walz on Schempp Allen and this will
be covered by Mr. Williams.
Going back into the evidence that was submitted by the court to the
Court below.
The evidence as I indicated is overwhelming and uncontradicted, and

un-rebutted that there is absolutely no sign of permeation in
existence.
As far as the Act itself is concerned, the state feels that one of the
great features of the Act is its voluntary provisions.
No school is required to tailor its curriculum to come within the

provisions of this act.
No teacher is required to teach in a parochial school.
And no teacher who teaches in a parochial or non public school is

required to come within the provisions of the Salary Supplement Act.
As far as this being a restraint on the individual teaching, my

response to that is that it’s voluntary.
There is nothing in the Act which requires either the school or the
teacher to conform to the Act.
In summation Your Honor, it is the position of the State that the

evidence submitted in the court below indicated very clearly that this
Act is designed to meet a crisis in the State of Rhode Island at the
parochial school level.
It’s also designed to provide a quality education that the state feels is
necessary.
The Court found and the evidence supports the nding, that the
purpose of the Act is entirely secular.
The evidence introduced below indicates a total absence of

permeation within the meaning of the Allen decision so that all of
that remains to be done is to test the continuing existence and the
applicability of this Court’s prior decisions to this statute.
Thank you very much Your Honor.
Potter Stewart
May I ask one question, do you regard the District Court decision here
as basically inconsistent with that in the Pennsylvania case?
Charles F. Cottam
With what decision Your Honor?
Potter Stewart
In the Pennsylvania case, the one that was argued just before this
one.
Charles F. Cottam
Well, I think, it’s entirely -- no, it’s not entirely di erent.
I disagree with their nding on entanglement because there was no

evidence presented in the Court below.
There is no record in the Pennsylvania case Your Honor, did this Court
in Rhode Island, the three-judge Court sitting in Rhode Island went
o on the ground that this statute engendered excessive
entanglement that was referred to in the Walz decision, because they
felt that there was an inhibition of teachers and that the continuing
surveillance that would -- the Act would require to determine what
part of the schools’ budget is religious and what is secular was too
extensive for an entanglement.
Potter Stewart
You’re making the same crisis argument that Mr. Ball made in the
other case.
Charles F. Cottam
Yes Your Honor.
Potter Stewart
And I infer from that because that these acts were enacted in crisis,
that they are therefore constitutionally your argument?
Charles F. Cottam
No, Your Honor, I don’t argue constitutionality based on crisis, but in
one of the questions you asked Mr. ball this morning, I would like to
respond.
The essence of the question was, if the monies were paid to the
school, did not just supply the school with additional fund for other
purpose.
My answer is these schools are closing Your Honor, there are no other
funds for these purposes.
Potter Stewart
Of course in your case, the replacement dollar argument I take it is
not available to the other side because this is a supplement.
To this extent, your act is di erent from the Pennsylvania.
Charles F. Cottam
Well, it’s not substantially di erent Your Honor.
The arguments presented to the court below was let the parishes pay
and there was no showing that they couldn’t.
They was no showing that they could.
The fact of the matter is the schools are closing which I think speaks
for itself.
Thank you very much.
Warren E. Burger
Mr. Williams.
Edward Bennett Williams

I’d like to take just few a moments if I may and say a word about the
statutory scheme that is under scrutiny here in this decision.
Rhode Island made the judgment some years ago as did the federal
government that it was di cult to get quality teachers for the
elementary school grades.
And so, it enacted a law granting a subsidy or a bonus to teachers in

the elementary public schools of the State of Rhode Island.
It gave that bonus directly to the teacher.
Subsequently, in 1960, it escalated that bonus to 30% of the

supplement, but it immersed it in other kids of aid that it provided to
the cities and towns of the State of Rhode Island.
It picked up 30% of the cost of elementary school education at the

public school level in Rhode Island.
When this statute was passed in 1969, what the state legislature was
doing was simply, including within the penumbra of the general
welfare statute applicable to elementary school teachers in the state
of Rhode Island, those teachers who were in the nonpublic nonpro t
schools.
Now there are 98 parochial schools in the state of Rhode Island.
There are about 1000 parochial school teachers, the record shows.
There are about 1076 teachers in non-parochial, nonpublic or

independent private schools.
How many of those teachers are eligible and quali ed and how many
have been declared eligible and have quali ed under this act, only
161.
Why?
-- because the Act is so tailored as to exclude those independent

schools whose per pupil expenditure exceeds that of the public
schools of the State of Rhode Island because indeed, they don’t need
that kind of aid.
Now, how many of the parochial school teachers are quali ed for this
kind of aid, 342 the record shows.
Because the balance of them are nuns and nuns don’t qualify under
this because the statute requires that the teacher receive the
minimum standard applicable to the public schools system before a
teacher can qualify for the aid.
And the statutes of Rhode Island show us that $4000.00 is the
minimum salary paid to a public school teacher in the State of Rhode
Island.
And the record shows us that the nuns who teach in the parochial
schools of the State of Rhode Island receive $1800.00 a year if they
have a bachelors degree and $1,900.00 a year if they have a master’s
degree.
So we come down to 161 teachers receiving a supplement of 15% of

the salary that’s given to them.
What e ect did this have?
In 1968, the parochial schools of the State of Rhode Island were able
to o er, the record shows, $5,000.00 as a starting salary to the
teachers.
While the public schools were o ering $6,000.00.
By virtue of the salary supplement here it provided for, the parochial

school could o er $6000.00 by raising it’s contribution from 5 to
5100 and the state would then contribute $900.00 directly to the
teacher under some very sharply de ned and circumscribed
conditions.
Number one, that the teacher did not teach religion.
Number two, that the teacher was certi ed by the State of Rhode
Island.
Number three, that the teacher used only those materials and
textbooks used in the public schools for subjects being taught and
required to be taught in the public schools at Rhode Island.
Number ve, that the teacher received a minimum salary provided for
in the public schools of Rhode Island.
And number six, that the salary plus the supplement not equal or
exceed, not exceed, the maximum average for the public school
counterpart teacher.
That’s what this Act did.
In other words, it provided to certain teachers under carefully

circumscribed conditions, a possible parity of income for teaching the
same subjects with the same materials, with the same certi cations
in nonpublic schools, substandard public schools because their per
pupil expenditure was below the public school expenditure.
Now, if the court please, what did the lower court say with respect to
this Act?
Because I submit to the court that statutory scheme here in the State
of Rhode Island is no di erent from a situation where the state would
o er $500.00 grant or an $800.00 grant to all the elementary
school teachers across the board in nonpro t schools so long as they
did not teach religion.
I don’t think that kind of statute would be subject successfully to

constitutional attack under the test that has been laid down here.
That’s precisely what was done here.
What do the Lower Court say.
It purported to apply the purpose and primary e ect test.
And what it did say about the purpose, it said the rst part of this
test determining the statute's purpose presents little di culty.
The Salary Supplement Act in our opinion was not intended to

advance or interfere with religion.
The statute resides that its purpose is to provide quality education for
all Rhode Island youth, those in public and nonpublic schools, the
quality of education in the nonpublic schools are legitimate
legislative concern.
We nd nothing in the history and the structure of the Act which

suggests that the legislative purpose was other than as declared.
It then goes on to say that it’s certainly ful lls a secular purpose for
the statute to have been limited to teachers in schools who’s per-
pupil expenditure does not equal or exceed the public expenditure
because it that way, this aid is directed to teachers who are teaching
in substandard economic schools which cannot a ord to pay them on
a parity for the same services with the public schools in the state.
Now what does it say about the purpose?
And this is where we submit the lower court (Inaudible).
It says this, it says, and this is at page 37 of the joint appendix.

“On the one hand, we nd the statute will have the secular e ect of
aiding the quality of secular education in the State of Rhode Island,
precisely what it was intended to do.
Precisely what the purpose of a legislature was, it nds that it did

have that e ect.
But, it goes on to say on the other hand, we think it equally clear that
the Act gives signi cant aid to a religious enterprise.
At page 40, it repeats and it says, the second part of the Schempp
test determining the statute's primary e ect presents a more
di cult problem of de nition and application.
Plainti s have argued that primary mean is essential or fundamental.
Defendants and interveners have taken a more literal position,

claiming that primary means rst in order of the importance.
The problem of de nition is critical in this case because we have

noted the Act has two signi cant e ects.
On the one hand, it aids the quality of secular education.
On the other, it provides support to a religious enterprise.
This Court, since it began the evolution of the purpose and primary
test has found in four instances that the mere fact that an e ect of a
statute may be of aid or bene t to religion does not constitute a
barrier to its passing constitutional muster.
It said it in Everson.
It is said in the McGowan.
It said it in Allen.
And it said in Walz.
Furthermore, this Court has found that in focusing on the nature of

the primary e ect, you look at the functions subsidized, not the
institution bene ting.
It is said this in Everson.
It’s said in McCollum.
It’s said it in Allen and it found both in Pierce against the Society of
Sisters.
43 years ago and in Board of Education against Allen, three years ago
that these schools do provide a secular function.
Now, what would be the e ect, what would be the e ect of following
the lower court’s concept of the primary e ect test?
It would be as follows, we would roll back, the law of Church and

State 25 years, if we found that because a secular statute that had a
secular set gave incidental aid to religion that it failed to pass
constitutional muster then we must of necessity reverse Everson.
We must reverse McGowan.
We must reverse Allen.
And we must reverse Walz.
And if we consider the nature of the word signi cant, signi cant aid
to a secular enterprise, then we better focus on how signi cant the
aid is here.
The aid here, 161 teachers from 98 schools or one-and-a-half

teachers per school, receiving $900.00 salary supplement pails into
insigni cance compared to the signi cance of the aid in Everson in
1947 when a whole school load of children were bussed to and from
school.
Simple arithmetic will tell you that if you are paid ten cents a ride to
take 300 little boys and girls to and from school on a 180 school days
a years, twice a day, you’re talking about $12,000.00 or $13,000.00.
In Board of Education against Allen, we talked about giving textbooks

or lending textbooks to the children of the New York Elementary
Schools.
If they received their textbook in mathematics, if they received their

textbook in science, if they received their textbook in a foreign
language, then we are talking about a per-pupil expenditure or a per
school expenditure that dwarfs the expenditure that is countenance
in this particular statute.
So, I suggest that when the court strikes down the Rhode Island
statute as failing to pass the primary test facet of the test fashioned
by this Court, because it is giving signi cant aid to the schools, it is
running counter to the whole train of decisions of this Court.
Now, if the court please --

Potter Stewart
Did I understand you to say at the outside of your argument, Mr.
Williams, that the Catholic Sisters, nuns would not be eligible for
this?

They couldn’t be Mr. Justice because the record shows they make
$1800.00 a year.
Obviously, if the school as the record shows couldn’t a ord to pay an

extra thousand dollars to get quality lay teachers, it couldn’t a ord to
escalate the nuns from $1800.00 to $4,000.00 a year, when there
were seven or eight nuns teaching in these schools and one or two
layman.
So that the nuns, practically, as the record shows, absolutely cannot

qualify for this aid, the record does show if the court please, that one
nun did and she quali ed because her mother was dying, she had to
leave the order, she had to go out and earn money to support her
mother and live outside of the convent.
And she made application because she was teaching a holy secular
subject.
But other than that, there is no quali cation of religious under the
statute, only 342 lay teachers quali ed of whom only 161 came
forward, because indeed, the teacher may not come forward and ask
for the supplement unless the school quali es by ling what is
known as an NPS nonpublic school form 31, showing that its per-
pupil expenditure is less than the per-pupil expenditure at the public
school so --
Potter Stewart
That its per pupil expenditure for all purposes, not just for teacher’s
salaries?

For the secular education.
Potter Stewart
For all the purpose?
Yes (Voice Overlap).
Byron R. White
Do nuns take a vow of poverty?
Potter Stewart
Because it depend upon the order?

It depends upon the order to which they belong.
I think some nuns do take the bow of poverty and I think some do
not.
I think it’s entirely a question of the order to which they adhere.
Potter Stewart
I was wondering what these teaching sisters did with the $1,800.00.

I guess, $1,800.00 probably as just walking around money at these
days Mr. Justice [Laughter]
Potter Stewart
Even on a a convent?

Well, I think that they are allowed to leave the convent but I don’t
think they can go very far at $1,800.00 at these -- [Laughter], but
that’s the maximum that they’re paid under the Rhode Island school
system.
And they get $1,900.00 if they have a master’s degree.
Warren E. Burger
In all of these cases that you referred to or at least in all the recent
ones, is it not correct that the court has expressed the views that this
is matter of degree, the entanglement or the involvement or the
potential for it?

I think that this was expressed and articulated clearly, perhaps for the
rst time in Walz against the Tax Commission.
And the question then becomes, because this is the caveat of Walz as
I read it.
It does not abrogate the purpose and primary e ect test at all.
It simply adds a caveat to the primary e ect test, the purpose and
primary e ect test.
And it says if the program, if the statute creates an excessive

entanglement between church and religion, then the statute must
fail.
And then the court made a calculated choice between the exemption
of the ad valorem tax for churches and the imposition of the ad
valorem tax for churches and found that there was a lesser degree of
involvement resulting from the exemption than from the imposition
looking down the road and apparently shunning the prospect of
foreclosing on a church.
I suggest, if the court please, that the same rationale holds here,
because this Court in discussing this problem had this to say, it said
“If the quality of teaching,” this is at page 37 of the record, “falls too
low, then not only will catholic parents be reluctant to enroll their
children, but the parochial school will run afoul of Rhode Island’s
education laws.
50 years ago, this Court said that parents could satisfy the
compulsory school attendance laws of this nation by sending their
children to these schools.
The unspoken corollary of that of course was that the was that the
state had the right to regulate the secular facet of these schools and
indeed they have.
They’ve regulated the number of days to which children must go,

they’ve picked the holidays, they’ve required certi cation of the
teachers and they indeed have insisted that certain subjects be
thought, Rhode Island has done the same.
Now I say, if the Court please, that if the state can compel then, it
may assist.
And that’s what its doing here.

I say that the degree of involvement between the operation of these
schools and the compulsory school attendance laws of Rhode Island
and the country in fact, make the degree of involvement of paying
$900.00 to a teacher di minimus.
I say also that if the legislative judgement has been made by the
State of Rhode Island, that these schools cannot attract and hold
quali ed teacher for secular subjects, without those teachers being
given a subsidy, then, the quality of secular education in those
schools is going to fall.
And when it becomes marginal, the ugly confrontation which this

Court eschewed in Walz against the Tax Commission becomes a
reality, because then, there comes the kind of entanglement, the kind
of excessive entanglement that this Court expressed its abhorrence
for last year in Walz against the Tax Commission.
Warren E. Burger
Would you, does this record show the extent of the surveillance of
private schools in Rhode Island, to determine whether the hours in
the curriculum and the teachers meet the standards prescribed by the
state?
How is that done?

That statutes of Rhode Island cover this, Mr. Chief Justice.
There is a statute called compulsory attendance.
It is in Title 16, Chapter 19 of the Rhode Island general statutes, and

this tells what the State of Rhode Island insists upon from all
nonpro t, nonpublic schools if they are to meet the standards --
How much surveillance is involved in satisfying a -- is there an

inspection to see whether the parochial schools to keep (Voice
Overlap)

I suspect Mr. Justice that there is no surveillance on that subject.
I suspect there is none, but the record is silent on it.
I don’t know of surveillance on that.

And I suggest to the court that when one of these 161 teachers signs
a statement applying for supplement --
No, I’m not thinking about that.
You’ve told us that parochial schools are already subject to a number

of minimum standards.

Yes sir.
They have nothing to do with this subsidy statutes?

That’s correct.
And this is to in all 50 States and now my question was, is there a

degree of supervision of compliance for those standards on the part
of any education (Voice Overlap)

There is nothing in this record Mr. Justice which shows a regular
inspection.
I am quite sure that if there was a charge that certain subject were
not being thought as demanded by the statutory scheme of the State
of Rhode Island or that non-quali ed, non-certi ed teachers were
purporting to teach subjects that were required to be thought, that
there would be appropriate action taken by Rhode Islands’ State
Board of Education.
Well, are there are accreditation procedures for them?

For the schools?
Yes.

Yes sir.
That is provided for in the section to which I referred to Chief Justice,

Chapter 16 Title 19, that they must be approved by the Board of
Education of the township or the city or --
So in that extent, then there is some provision?

To that extent there is of all nonpublic schools.
And I gather your point is that they can go that far without o ending
the establishment part and surely the contribution by way of
supplement to a teacher salary isn’t the excess?

That’s another way of expressing my thought, Mr. Juctice.
I say that the degree of supervision required by the Salary

Supplement Act is de minimus compared to the supervision that is
authorized and required by the statute to make sure that these
schools ful ll the requirements of the compulsory school attendance
laws of the state of the State of Rhode Island.
And indeed, they have been found these schools to ful ll less
compulsory attendance laws and have provided a secular service to
the state with the approval of this Court and without challenge for
some 50 years since Pierce against Society of Sisters.
Potter Stewart
Mr. Williams, if this time goes by, assuming this law is upheld and a
nancial pinch gets greater, the supplement is increased and nally
reaches the point where the supplement is greater than the basic
salary, is your case any di erent?

I think, Mr. Justice, that the aid would be greater.
I don’t think the principles would be di erent so long as the function

being subsidized is secularly segregable.
I think that’s why this Court sits to test that kind of situation in the
event that it arises.
I think it’s quite unlikely in the State of Rhode Island that the
supplement that is granted to the nonpublic, nonpro t schools will
exceed that which is given to the public schools, namely 30% under
the existing statute.
I would like to reserve whatever time I have remaining for rebuttal.
Warren E. Burger
Very well Mr. Williams.
Mr. Pfe er.
L. Pfe er
I pose in the time which I reserving for myself to discuss what i

believed to be the legal principles applicable to this case and with the
court permission, I should like to extend my colleague Mr. Stanzler,
15 minutes to apply these principles to the speci c facts of this case
as disclosed by the record of the trial.
This case, unlike Lemon and unlike Allen does present a record on
trial with documentary and live witnesses and I believe that this is a
case upon which the court can get at least a realistic glimpse as to
what actually is the e ect of these statutes because it’s upon the
e ect of the statutes that the court tells that is unconstitutional.
This was a unanimous decision of the court below.
Two of the three Justices found are unconstitutional on both because

its e ect and because it involved entanglement, the third judge fount
it unconstitutional only because of entanglement, but the court
below, majority holds it unconstitutional on both grounds.
Warren E. Burger
So like Mr. Pfe er, that the if it can be called surveillance, the
supervision or the overseeing which every state exercises over all of
the schools in the state to see that they are meeting the minimum
standards, it's always a factor that has been hovering over all private
schools, isn’t that too?
L. Pfe er
It is indeed.
Warren E. Burger
Do you think that the surveillance necessary to check the compliance
of the parochial school under the Rhode Islands statute is a greater
degree of involvement in determining whether the teachers are
properly accredited and all that sort of thing?
L. Pfe er
I certainly do.
Moreover, it transgresses.
It’s greater in degree and in quantity and it’s critically

unconstitutionally di erent in quality.
Every institution is subject to a certain degree of overseeing by the

state for the protection of the people.
A church which does nothing but pray, have people pray, and
participate in religious worship is inspected by the re department,
by the sanitation department and subject to tremendous surveillance
that there may not be too many people there, that degree of
surveillance, that degree of overseeing, cannot be deemed a
justi cation for nancing that institution.
This is a necessary police power of a state.
But when the state goes in, and does not look to see if the ceilings
are safe, or does not even look to see even goes beyond that, to look
to see the attendance record, but when that state goes in and pierce
over the eyes, over the shoulders of a teacher to see whether that
teacher is permeating or bringing in religion into her interpretation,
let us of the reformation, the present reformation, or of the creation
of the Earth, when or of anything which has theological application.
If in a religious core, when the state comes in and says we are going
to pass judgments as to whether this is or is not religious, then this is
a very type of censorship which this court has expressed its
opposition to time and time again.
From Watson against Jones in 1870, to Cantwell against Connecticut

when the court said we will not allow a state o cial to pass or to
censor, what is and what is not religious.
It was in Poulos against New Hampshire, in case after case for a state
o cial.
This indeed -- this was one of the statements made by Madison in
his opposition to the Virginia Bill for religious freedom that it
empowers the state o cial to determine what is and what is not
religious.
Now, this is, to us a critical di erence between everything which is

gone hereto for and never before, as far as I know has any courts,
State or Federal, authorized a state o cial to pass judgments on
whether certain teaching is religious or not.
I want to speak --
Byron R. White
What about the public school laws that say that religion cannot be
taught in the public schools?
L. Pfe er
Mr. Justice White, the answer to that, the one short answer to that is,
that the First Amendment does not forbid a state to police its own
schools.
These are state schools that are public schools and nothing in the
First Amendment forbids a state to police its own schools, and it
wasn’t --
Byron R. White
But what about the teacher though, says you’re transgressing the
First Amendment, my First Amendments right and you’re purporting
to say that I’m teaching religion and you’re supposed to keep your
nose on that.
L. Pfe er
That teacher is a public employee and must abide by the constitution
of the United States which says a public employee in the schools may
not teach religion, may not indoctrinate religion.
This is public employee.
Byron R. White
So you’re saying that it’s inherent in the First Amendment that the
state must in all sorts of context decide what religion is?
L. Pfe er
It must only to the extent of not allowing public employees to do it.
Byron R. White
Well, anyway the state does it all the time. I mean, decides what
religion is.
L. Pfe er
It decides what religion is to the extent only of forbidding
transgression of religion into the public school.
Forbidding transgression of the constitution.
It does not, in the case I’m quoting does not allow the state to go in
and censor what’s taught in a private school because in that private
school, there is religion.
This isn’t easy essence of religious limit.
Warren E. Burger
What does a court do when it’s called upon in a case like this or like
the others when it makes the judgement that the school is -- or the
activity or the facility sectarian rather than secular?
Does it not make a comparable decision?
L. Pfe er
It makes a comparable decision only in the sense that it determines
whether that teacher in a public school is ful lling the secular
program of the school.
The example, the best example I think is Everson.
The best example is Everson where the court said you cannot forbid
the teaching of evolution in a publicly- nanced school.
Now, the court there made a determination that the teaching of

evolution is a secular subject.
But the Court did not in any case I know of, does not say that it’s
permissible that this doesn’t involve the most gross entanglement for
state o cials to go into a religious core, created for the purpose of
propagating religion, and saying, “We can really check and see
whether during the hours of nine to three or two to three, this
particular teacher is teaching religion.”
This is the most extreme form of entanglement.
This situation means that the teacher in the public school, in the
parochial school is a part employee of the parochial school system,
part of employee of the state.
The church selects the teacher, the church appoints, the church pays
for it.
The teacher is subjected to discipline of the church.
The teacher is – and if it's a member of religious order and nothing

of the Act, nothing of the acts forbids members of religious orders.
As a matter of fact, there is a member of religious order who is a

teacher.
Nothing in the Act forbids members of the religious order, if the

religious order decides to, which it has every right, constitutional
right to increase their salary from $1800.00 to $4800.00, which they
can do tomorrow.
Nothing in the statute, nothing in the constitution forbids a member

of religious order, who takes an oath of obedience, and then oath of
poverty to qualify under the Act.
This makes the state and the church partners, and ever since
President Taft was in common channel with Philippines, after we
took it o , he required all public control of the parochial schools
there to be withdrawn, because he said that church and the state may
not be partners under our system of government.
All I want to say a moment, (Inaudible) and about the fact that in
this case, although I don’t know whether my opponents are resting
on this as a critical distinction.
The payment is made in this case to the teacher, it doesn’t go

through, under the statute, through the treasury of the parochial
schools.
I submit that that is hardly a critical distinction.
The legislative purpose of the Act, the whole discussion of the Act,
the fact that's predicated upon a crisis not of teachers, but of the
parochial school is quite clear that this is a device to aid and to
nance the operations of the parochial schools.
Indeed, the very fact that in order for a school to qualify, the teachers
there must receive a certain minimum amount.
This is the rst time, I've come across a situation, where a statute is
enacted to bene t those who needed least and to deprive those who
needed most of the o of that.
Indeed, if this purpose of this stature was to aid and help the teacher,
the answer would be to lower the teachers’ salary, just as enough and
everything else.
The lower the teacher's salary, the more aid to be gotten.
So, the teacher could have a living salary, here is just the opposite.
If the teacher doesn’t get a certain amount, the minimum, the

teacher gets not from the state, why?
Because the purpose of the statue is to help the school nance its
operations.
This was agreed to and testi ed here that the superintendent of

schools, and Catholic diocese there, if the state doesn’t them the
money, we’ll go have to pay it, it's in the record, it's in my brief.
If come out (Inaudible) the parish, the Court said, the superintendent
said, “If this statute is unconstitutional, and there's two questions by
the Trial Court, if this act is unconstitutional, that money would have
to come from the parish, they’ll be having di culty raising.
But no question, this is a form of subsidizing the church and helping

it meet the crisis.
Warren E. Burger
I take it that Rhode Island does not tax but he ad valorem real estate
tax, the buildings of the parochial schools, is that correct?
L. Pfe er
I would assume so, there's nothing in the record to that a ect, but I
think that can be assumed.
Warren E. Burger
Do not most of your arguments or many of your arguments have the
same force, with respect to that exemption?
L. Pfe er
No sir.
(Voice Overlap), Your Honor pointed out in the—
Warren E. Burger
I was speaking of your aid argument in particular, at large aid isn’t it?
L. Pfe er
I'm not basing my case on aid, I'm basing my case on subsidy, on
nancing, not aids.
Aid can be many things, I'm basing my case on the proposition that
this is nancing the operations of a parochial school.
It is a subsidy, whatever its disguised, the reality is that this is a

subsidy, just as much as in Lemon, the device used to subsidize is the
purchase of services contract, independent contractor concept, the
purchase of service.
But nobody is misled by that.
Everybody knows that the declaration of legislative purpose says

these schools are facing the nancial crisis and in this case too.
These schools are facing a nancial crisis, and we’ve got to help them
meet their budget, and we’ll do it in this way or in that way.
But, it would be make a mockery of (Inaudible) of the First

Amendment, if calling this thing a purchase of service of contract or
calling this thing as salary supplement.
Can’t be used to blind the eye to what actually is state subsidization

of parochial schools and nothing but that.
Thurgood Marshall
Mr. Pfe er, can't you rolls out as the law giving all schools ground
and equipment to setup playgrounds of a 100,000 each.
L. Pfe er
And it's used to be use for ground purposes of playground, and—
Thurgood Marshall
The whole playground and paid for its up keeping, everything.
L. Pfe er
As part of the parochial school.
Thurgood Marshall
No, no (Voice Overlap).
L. Pfe er
Mr. Justice Marshall, the reason I am unable to answer the question -
- (Voice Overlap).
Thurgood Marshall
They all said, did enacted that schools are in so bad shape, and we’re
going to give recreational center and a playground for every school in
Rhode Island with more than 25 children.
L. Pfe er
Of all including (Voice Overlap), your respect Your Honor.
My answer was -- I would deem that on constitution.
Thurgood Marshall
Why?
L. Pfe er
Because the purpose of a parochial school, and the record shows is
not to provide children with playgrounds.
The purpose of a parochial school is to provide children with a

religious education together with the secular education, not
independent of it.
Now, the record--
Thurgood Marshall
Is there anything in the Rhode Island law that says that a public
school can have recreation facilities?
L. Pfe er
That a public school cannot have?
Thurgood Marshall
Yes.
L. Pfe er
Of course it doesn't have such kind of --
Thurgood Marshall
That’s right.
So it is treated by the liking for playground.
L. Pfe er
Except, Mr. Justice Marshall—
Thurgood Marshall
Well, let's move from playground across the street.
L. Pfe er
Well, my answer to that is, if the playground in an --(Voice Overlap)
Thurgood Marshall
It's called the same (Inaudible) Catholic school, public playground,
formed by, Rhode Island and its plantations.
L. Pfe er
Well, I would say that's what I gave yesterday in your absence in the
total case.
One of the critical factors would be is, would a non-Catholic child be

barred from entering that playground?
If a non-Catholic child would be barred from entering that

playground, I would say that would be unconstitutional.
Thurgood Marshall
As signed underneath, we take everybody, including those who never
heard that there was such a word as religion.
L. Pfe er
Into that playground, there don’t have to be a student in school, then
I would say that would be unconstitutional.
Thurgood Marshall
Well, it's to saying --
L. Pfe er
It's a name of – wrote by any other name.
Thurgood Marshall
Elementary school --
L. Pfe er
I don’t care what-- (Voice Overlap) you called a playground, a school
is isn’t, it's a playground.
Thurgood Marshall
It's a playground, well, if you move it next to the building, you said I
couldn’t do it.
L. Pfe er
No, I didn’t say that Mr. Justice Marshall, I said you can't do it if
you're limit it to only those who were students in that school, and
you limit those students that could only get those (Inaudible), and
you require those students to take religious teaching, as part of it.
Then, you say if that --
Thurgood Marshall
Suppose it's restricted to children in that school, and that school
accepts every child from the most en route Christian to the child that
never heard of what religion was --.
L. Pfe er
And does not require that child to participate in any religious
teaching or any religious practicing.
I would say this would not be unconstitutional.
Thurgood Marshall
Why not?
L. Pfe er
Well, that’s not (Voice Overlap).
Because it is not the teaching or practice of religion, the state does
not nance the teaching or practice of religion.
The state is providing a park for every member of the community

(Voice Overlap)
Thurgood Marshall
Everybody in the school, this is a part of the school, part of the
school’s recreational facilities, under clause 83 6b.
L. Pfe er
And the school is one in which there is -- religion is not required
from the children, which of all faith and of no faith, and they're not
subjected to religious propagation, religious practices, and the mere
fact, that I said yesterday, the mere fact that the school is church-
related does not disqualify that.
(Inaudible).
L. Pfe er
If that was so, that was Catholic (Inaudible) towards constitutionality,
yes indeed, because then the purpose of the statute is to promote the
purpose of the school, as the court below said, and I think very
astutely, this is a religious enterprise, it is simply unrealistic, and
goes beyond everything, which we know of education to divide a
school, which as this Court said in Walz, so recently, whose dominant
politics is to control the complete education of the children, religious,
and secondly complete education, children for their formative years.
It is simply beyond the realm of reality, to say you can divide that
child up, and say -- in this playground, he's not subject to the
religious in uences of the school.
He's not there for the purpose of taking the religious upbringing.
Thurgood Marshall
Mr. Pfe er, you have some inventory with this athletic program,
would it interest you to know that renewing the school in the past
two years had built a $6 million gymnasium, and a $3 million library?
L. Pfe er
I'm sorry--
Thurgood Marshall
$6 million for gymnastics, and $3 million for books.
Some schools consider it a very important part of the education.
L. Pfe er
Yes.
Thurgood Marshall
Now, if that is, so let me build my recreation center, and have
building machine shop, next to it.
L. Pfe er
Well, I think the answer is it was given -- the answer was given, and
I would say this, if the machine shop and the recreation center is an
integral part of that institution, that educational institution.
Thurgood Marshall
Well, in my case, the machine shop and the recreation are on the
same page in the catalog, is it equal, whatever you want to get.
L. Pfe er
I will come back Mr. Justice Marshall, to what I've just said.
I want to know if a child is in anyway required to participate in

religious instruction or religious practice, or in anyway, his religion is
relevant to his enjoyment of that facility.
If that is so, and in this case, the record shows speci cally it is so.
Then, that is not constitutional, this is it.
As a matter of fact, the Court said in Everson, you cannot deprive a

person of a public welfare bene t, because of his religion.
And if a child cannot enjoy a park, because it's not of right religion or
if the child can't enjoy the park or the gymnasium, unless he
partakes religious teaching, it's seems to me that’s a violation of the
constitution.
Now, on the purpose, one word about the purpose, I've said in Tilton,
that under the principle of coordinate branches of government, this
Court may not, perhaps examine it beyond the stated purpose of the
legislature.
I do not think that applies to state statutes.
I believe this Court has said in Atchison, it said Reitman against

Mulkey, that in ful lling its constitutional obligation, the Court must
examine to the perpetual realities of the situation, and may not be
barred by a statement of the purpose.
The actual realities of this situation is that parochial schools are in

economic crisis.
We have to help them, we have to help them, how?
By nancing them on part.
This I submit is the purpose of this statute.
And if, as this case shows, a parochial school system is established

and created to maintain the religion of its adherence, then I say that
a statue, whose purpose is to relieve that church of its nancial
responsibility, by taking part, then that’s the purpose that statute, is
to advance religion.
I would like to conclude and leave the balance to my associate, Mr.

Stanzler.
But I nd it necessary to point out the tremendous signi cance of

these two cases before this Court, as to the future of a public
educational system in this country.
The public school system, to me one of the most important, it's one
of the most important contribution, which our democracy has made
to civilization.
It is the only situation, the only institution, which has an open door
policy by law, which no child can be denied entrance, because of
child’s color, the child’s wealth or lack of wealth, the child’s religion
or lack of religion, it is universal.
Because it is universal, because every child can come in without

questions, the door will never close on a child entering a public
school, because of that, that school deserves and merits nancial
support and maintenance, by taxes levied against all of the
community.
But once an institution can close its doors, and say before you come
in, I want to know your face, I want to know your color, I want to
know whether you have a correct baptismal certi cate, otherwise you
don’t come in.
I say the constitution of the United States does not allow such an
institution to be supported by tax raise, and funds.
Potter Stewart
What does the record in this case show as to the admission policies of
these schools?
L. Pfe er
Well, the record shows, it's on the record, it shows that -- I will read
it to you speci cally, that preference is be given to-- and that’s a
factor that all the children, at least 95% of more --
Potter Stewart
What page is that?
L. Pfe er
Of the admission procedure, as the record shows that in selecting
students, preference must be given, should be given to those who
participate -- who attend mass.
Warren E. Burger
We can't identify the page at rst.
L. Pfe er
You have the page of that -- yes, it's page 223 of the joint appendix.
I will read it.
Warren E. Burger
220?
L. Pfe er
223.
Warren E. Burger
223.
L. Pfe er
Of the joint appendix, here's what the record shows.
This is the handbook and the rule stated, “Although wealth should
not serve as a criteria for accepting a pupil into a catholic school, all
other things being equal, it would seem fair to give preference to a
child, whose parents support the parish.
Regular use of that budget, rather than size of the contribution would
appear equitable.”
In the case, where the parents regularly attend mass, this is at the
very least, preferential treatment based upon religion, upon
attendance and that's from the record.
Thank you.
Hugo L. Black
That's the nding?
L. Pfe er
I beg you pardon.
Hugo L. Black
Is that a part of the Court’s ndings?
L. Pfe er
This is not disputed.
It was conceded at the trial.
It was conceded at the trial that this is in e ect that there are certain
things in the handbook, which were challenged, but those things
which were not challenged, were conceded by the superintendent of
schools of the dioceses of providence, that it is in e ect this has been
conceded to be in e ect uncontraverted.
Potter Stewart
This has to do with situation, when more than 40 apply for the rst
grade.
L. Pfe er
I beg your pardon, yes.
Potter Stewart
And it's in the form of suggestions, I guess these are suggestions
from the archdiocese or--?
L. Pfe er
Yes indeed.
Potter Stewart
And that’s the – they use the Metropolitan reading readiness test or
similar test for pre-registration sometime in March, April or May?
L. Pfe er
Yes.
Potter Stewart
And then, if there are still more applicants, then can be accepted,
take the 40 oldest children?
L. Pfe er
Yes.
Potter Stewart
This is this arbitrary, but it has one advantage, the older children are
not as likely to fail in the rst grade, as the younger ones.
You're reading from that whole list, and that comes from the
archdiocese, does it?
L. Pfe er
All comes from the archdiocese, yes.
Now, those are criteria, which are perfectly constitutional in the

private institution.
Those are criteria -- but criteria and attendance of facts of the

parent's attandance of mass, as a factor in determining admissible or
not admissible, is certainly not consistent with the First Amendments
of the United States Constitution.
Warren E. Burger
Thank you Mr. Pfe er.
Mr. Stanzler.
Milton Stanzler
My role here is to relate the record to laws set forth by Mr. Pfe er,
and to suggest to the Court that the record in the case amply
supports the ndings of fact made by other trial court below.
First, I would like to explain how the legislature is implemented.
The Deputy Commissioner of Education testi ed and related that he

was appointed by the Commissioner of Education to draw up rules
and regulations and then subsequently after drawing of the rules and
regulations, they were considered at a public hearing, and they were
adapted, and the material, the rules and regulations together with
the applications forms for the teachers, and together with the NPS
number 31 that Mr. Williams referred to, was sent to the non-public
schools.
Thereafter, the non-public schools submitted the accounting forms

or the expenditure sheets, and the data contained therein, together
with the applications to the Deputy Commissioner of Education.
And he then, reviewed the forms, some 250 teachers, and approved
all of them, all of them coming from the Roman Catholic schools.
I think in answer to some of the questions that might be pertinent,

just a moment to take a look at the role that the Commissioner of
Education must play here.
He must set forth in page 3 of rules and regulations verify

Department of Education, upon receipt of an application for a salary
supplement, shall determine the applicant’s eligibility by verifying
whether or not the applicant complies with the regulations.
The expenditure form, which is attached to it, sets forth a summary

of all the current expenditures of the school.
This is not just the expenditures for secular education, that is set
forth.
Warren E. Burger
I take it, you're making that point, on the entanglement aspect.
Well, what if the new school having nothing to do with any church,
Catholic, Jewish or Lutheran, moves into a community to open up
elementary school for children and wants to qualify, is there any
di erence in what they would have to do to get accreditation?
Milton Stanzler
No Your Honor, they would have to submit the form of expenditures,
same form, and provided a teacher applies as the Commissioner of
Education testi ed.
If the expenditures exceed the per pupil expenditure for the grade in
the public schools, then he will go into these schools, and conduct an
audit.
And as he testify, would may give determination, as between the

sectarian expenditures and the secular expenditures.
And the same thing would apply to a new school, if a new school
wanted to apply for the act, and have its teachers apply, it would
have to do the same thing.
Warren E. Burger
I suppose we can traditionally notice the reality that some state
boards of education have disquali ed some private schools, because
of their failure to maintain minimum standards, even though they
had no religious connection at all, is that (Voice Overlap) of a judicial
notice?
Milton Stanzler
I think that could probably could be done, Your Honor.
And I think of the circumstance of this case, there was once school
that didn’t qualify, because its expenditures per pupil exceeded the
expenditures per pupil in public school.
Warren E. Burger
Doesn’t this mean that state power exercises a great deal of authority
and surveillance over all education, through the required years of
compulsory education?
Milton Stanzler
Yes Your Honor, I think that there's a di erence however, with
respect with my brother pointed out, my brother Pfe er pointed out,
with respect to reporting the numbers of students who were
attending in the school.
There is a di erence as to determining between the -- making a

determination as to the sectarian expenditures and the secular
expenditures, as required under this Act, as the Commissioner of
Education says, he’s going to perform.
Warren E. Burger
Well, I'm speaking now, the abstract of a private school, private
elementary school, and it develops that instead of teaching History,
which maybe required, of course, presumably is, teaching religion,
even though it's not a religious connected or religious-related school,
wouldn’t the school authorities say you must teach History or we will
cancel your accredited standing, which means they go out of
business.
Milton Stanzler
Well, I wouldn’t -- I think that in the light of the cases, in particular
the Pierce versus Society of Sisters that the private school can teach
certain subjects, if they do not teach as in Rhode Island as a
requirement they teach History, if you do not teach History, then I
would believe that they would lose their accreditation, and the
Department of Education would have a right to say it then, that you
must teach History according to that state law.
Warren E. Burger
This would have nothing to do whether they're church-related or
whether they were run by agnostics.
Milton Stanzler
That is correct, Your Honor.
That’s a minimum standards that they’d have to meet.
But that does not have to -- it seems to me in any rate, does not
seem to interfere with the religious aspects of the school itself, and
with respect to making an investigation as now the Commissioner of
Education has put in the role of making an investigation to
determine, what is the sectarian or what is not sectarian, and this
determination as to whether or not teachers who apply under this Act
must qualify.
To move on Your Honor, I would like to point out the nature of the
school itself, the totality of the religious atmosphere that’s involved
in the school, this is amply supported by the record and I would
suspect it's almost conceded by my brothers, but to point out the
guideline, which is Exhibit 14, as the document that has been utilized
in evidence here.
This handbook is in e ect, it has been modi ed in certain forms, and

it is used and is binding upon the administration, the operation of the
schools, and each principle, and each of the school maintains his
handbook.
In order to complete the -- to indicate to the Court the religious

atmosphere that is maintained, though not in the record though, part
of the evidence that as an Exhibit 14a, which supportedly where some
modi cations of the guidelines of the school system, and this was
related by Judge Co n in his decision below.
It was letter dated January 20, 1970, which the Court considered a
letter from Father Mullin to the elementary school principals, where
he pointed out under the question of whether or not, in light of the
problems that there were maintained by the schools, with respect of
the proportion of lay teachers to religious teachers that Father
o ered his own opinion.
And this is in his letter to the elementary school principals, that

reducing this proportion should not be done, (Inaudible) for lay
teachers should be maintained at all times.
The reasons are: 1) the obvious nancial di culty, and 2) the

delusion of the catholic atmosphere of that school, that might result,
then of course, the nancial considerations.
The schools all have religious and lay teachers, fathers and priest do
not teach, but occasionally will teach religion.
About 98 elementary schools, and the dioceses, one school has all lay
teachers, and two or three schools have religious teachers.
90-95% of a non-public elementary schools students are enrolled in

the Roman Catholic parochial schools.
The diocese averages two religious teachers to one lay teacher,
religious teachers are sisters and there are approximately 29,000
students in the elementary schools from grade one to eight.
Substantially, all of the children in the schools are of the Roman

Catholic faith.
A great majority of the 98 schools are all parish schools, which

means they are owned and operated by the parish.
If the school is not own by a single parish, three are operated by two
or three parishes together.
There are six schools which are private, but these are operated by a
religious community of sisters, who own and operate the schools, and
there is one such which is operated by the diocese.
A majority the principals are pointed by the Mother Provincial of the

order sisters which sta the school.
The last two years, Father Mullin has appointed the principal of one
of the schools in which there are thirteen.
And two cases, the pastor appoints the principal and then one school,
which is autonomous, the principal is appointed by the Board of
Director of the school.
There are two school which have lay principals.
The religious teachers are appointed by the mother provincial.
The recruiting process of the lay teachers starts in the

superintendent’s o ce, and one of his assistants interviews all of the
applicants.
They ll out an application, they are interviewed by one of the

superintendent’s assistants, and she refers them to the pastor who
signs the contract with them.
It might be pointed out that with respect to the contract, the

evidence was clear that as Mr. Pfe er pointed out, that if a
contractual obligation, let's say it was $6,000.00, if the statute was
held to unconstitutional, the parish would be obligated to pay the
total of the $6,000.00.
Finally, the principal for a particular school will interview the lay
teacher after they are refered to the superintendent’s o ce, and then
the pastor and the lay teacher will sign a contract, upon agreement.
The great majority of lay teachers in the Roman Catholic schools are
Roman Catholics, approximately 10-15% are not Roman Catholics.
The schools have the usual embellishments of the Roman Catholic

school and is testi ed as brought out when one visits such a school,
he knows he is visiting a Roman Catholic parochial school.
Each class, day starts with a prayer for each of the students.
They are usually -- instead at the beginning of the day, and

sometimes at the end of day.
There are lay teachers or religious teachers in the home rooms, where
these prayers are said, beginning if prayers of a day are supervised,
are conducted either by lay teachers or religious teachers, 150
minutes a week of school time is devoted to religious classes.
This curriculum is setup in the handbook, on a weekly time allotment

that comes out each year in September.
The religious classes will deal with the study of the various tenets of
the Roman Catholic education.
Since, the passage of the Act, teachers who have applied for the
supplement do not teach religious courses, but prior the lay teacher
could if they wanted to, and if they felt competent.
It would be up to the individual teacher, to determine if she wants to

begin each class with a prayer.
One reason for the Salary Supplement Act or I might point out that
there are sometimes visiting missionaries, at least once year, and of
course, the handbook provides that the vocations programs are
conducted once a year.
There was testimony given by one nun, who did apply and did qualify
under the Act, and she was asked what her view was of the role of
teachers in parochial school.
She said, on page 223 of the joint appendix, “According to the

religious thinking of a Catholic today, it is that young adults going
into the community, they should hold a Catholic attitude toward
di erent things they meet with and yet this is not totally Catholic, it
is a Christian attitude.
As teachers, we by our example, particularly and our handling of the

children try to inculcate in them the same Christian attitude.
As with religious, we are toned to discipline, and we try to exert
discipline with the children, so they will be open to studying and to
proper attitude toward their word.”
The religious atmosphere that permeates at the school is that of the

teacher themselves, though she does not think that this is an overall
religious atmosphere.
One of the principal functions of the parochial school she said, is to

have available former religious training, because otherwise the
children would not be reached, except in the catechetical classes after
school and if you do not get them at an early age, you would do, if
you’ll handled them right from the rst grade.
Father Geebung (ph) one of the pastors of the parish schools

testi ed, and he testi ed that pastor entered to the contracts with
the teachers under the salary aid, it is understood that it would mean
the salary is paid by the parish, would be that much less, some of the
burden will be taken o the parish’s shoulders.
It is most fair to say that the nancial responsibilities of the parish

would be lessened, if the supplement payment were made.
The money saved would be used to better school, but it could be

spent for parish purposes.
The Father also testi ed that he would not hire divorced school
teachers, nor would hire ex-communicated Catholics from teaching
those schools.
I might go on to point out that there are numerous references in the

handbook's Exhibit 14, which relate clearly the religious atmosphere
of the school, which relate and show, and supplement and support
the ndings of the court below.
And I might in conclusion say, that the court below, the record that it
found in making new ndings, that it did, is amply supported by the
record.
I respectfully suggest and urge the court to a rm the ndings of the

court below, thank you.
Warren E. Burger
Thank you Mr. Stanzler.
Mr. Williams you have about ve minutes left.

I’d like to take these few minutes to just correct two impressions that
have been left with the Court, in the argument of counsel.
Mr. Pfe er suggested to the Court that the superintendent of

schools, for the parochial schools of Rhode Islands, testi ed that if
the statute were held unconstitutional, then the money would just
continue to come from the parish.
The record shows rst of all, that what the superintendent testi ed
to, was that the contracts with his teaches were signed after the
statutes were passed.
And that because the individual schools were bound by those

contracts, they would have to pay for that year, the amount of money
called for in the contract, because it had been executed, but it did not
suggest, he did not suggest, he did not say that thereafter, that the
schools would be able to continue this higher stipend.
Now, an issue has been injected in the last moments of the

arguments here.
The suggestion has been made that there are some kind of exclusion
policy in these schools, either racial or religious.
And I receive the (Inaudible) this morning from Mr. Pfe er, when he
said that I had misstated Title 6 of the 1964 Civil Rights Act.
Well, Title 6 of the 1964 Civil Rights Act is speci cally incorporated in
the Rhode Island Salary Supplement Statute.
It's precisely stated such regulations shall ensure that any non-public
school, as that term is de ned earlier in this chapter, which employs
teachers who receive salary supplements, as provided for in this
chapter shall comply with the provisions contained in Title 6 of the
Civil Rights Act of 1964.
And the suggestion was made this morning that there was exemption
for religion.
Well, there is an exemption for religion.

There's a very narrow circumscribed exemption for religious in Title
42 2008, Section 1, in hiring policies of institutions, where the hiring
is by a religious institution, for a religious activity, it is so that a
religious school does not have to hire somebody of a di erent
religion to teach religion, which would have no acquisition to this
case, because religion teachers are excluded from the bene ts of the
Act, in any event.
There was no suggestion at any time, until the veining hours of the
argument here in this Court that there was ever any exclusion on the
basis of race from any of these schools, never at any time in the
lower court, and indeed the record is diametrically to the contrary,
and I invite the Court to read it.
And I suggest likewise, there has been no evidence produced in this

record, in the lower court, that anyone is excluded from these school
by virtue of religion for indeed the record once again is diametrically
opposite to the suggestion that was made in the closing moments of
counsel's argument.
Potter Stewart
How about the page 223 of the appendix, to which Mr. Pfe er
referred?

Page 223 of the appendix, if the Court please—
Potter Stewart
What that is, is part of exhibit 4 (d) (Voice Overlap).

Counsel said that, that was a stipulation between the parties, nothing
could be farther from the fact, I suggest.
If you read the record here, from pages 120 to 127, you will see the
long colloquy that went on, between counsel with respect to the
admission of this handbook in evidence.
And it was pointed out that many sections of the handbook were
superseded or never operative and that were never put into practice.
And the counsel met and stipulated with respect to certain portions
of the handbook and that whole dialog is contained between 120 and
127.
And I suggest to the Court that there never was an issue in this case,
there never was an issue to which this particular section could be
germane, because there was no proof of exclusion on a racial or
religious grounds.
For these reasons, we ask that this Court uphold the constitutionality
of the Rhode Island Salary Supplement Act, as applied to the teachers
in the nonpro t, nonpublic schools.
Hugo L. Black
What was the handbook?

I'm sorry Mr. Justice.
Hugo L. Black
What was the handbook?

The handbook was promulgated in 1965 Mr. Justice and—
Hugo L. Black
By whom?

And given by the superintendent of schools—
Hugo L. Black
What schools?

The parochial schools in Rhode Island, and given to the principals of
the various schools and all of the teachers, who testi ed in this
record were thoroughly unfamiliar with it, because none of them had
either been asked to follow it nor was anyone in possession of it, nor
was anyone in fact following.
Hugo L. Black
Who did he give it?
He gave it to the principals.
Hugo L. Black
Why did he give it to them?

He gave it to the principals, because I believe it was an aspiration for
the way that he wished these schools to operate, but in fact, they
were not operated and the testimony in the record is to fact that they
were not operated under the sample.
Hugo L. Black
He gave it to the teachers (Voice Overlap).

No, he didn’t give it to teachers Mr. Justice—
Hugo L. Black
To the superintendent?

He gave it only to the principals of the schools.
Hugo L. Black
He gave it to the principals.

Yes sir.
Hugo L. Black
Given by the superintendent of all the schools.

Yes sir.
Hugo L. Black
Who had power to hire and discharge.

He had the power to hire and discharge.
Hugo L. Black
And tell them this was what they wanted.

And he testi ed Mr. Justice that the handbook had been superseded
by other directives, and that it was inoperative and (Voice Overlap).
Hugo L. Black
What page did he testi ed that it had been superseded?

The testimony of Father Mullin appears in the record over many
pages, beginning if the Court please.
Hugo L. Black
I mean which part shows—

Well, I directed the—
Hugo L. Black
(Voice Overlap) has been superseded—

I directed the Court’s attention to pages 120 to 127, where those
stipulations were worked out.
Hugo L. Black
Well, does it say that this has been superseded (Voice Overlap) were
the principals told that—

At page 68, the superintendent of schools was asked about the
handbook, is that handbook now in e ect?
Yes except, insofar as it has been superseded by later directives.
Now, if the Court please—
Hugo L. Black
Well, now where is the place that shows it was superseded by later
directives.

Pages 120 to 127.
Directing your attention Mr. Justice to page 121, it was stated, they
will be read in to the record with the understanding that if Father
Mullin were called, he would testify that although they have never
been formally repealed or superseded by a written document,
nevertheless they are not now in e ect or not being carried out.
And then, they go on to point out the various sections, the various
paragraphs and the various subdivisions, which have been inoperative
or superseded.
Hugo L. Black
Does it show they had been withdrawn from the principals.

It does not, sir.
Warren E. Burger
Thank you Mr. Williams.
Thank you gentleman.
This case is submitted.

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Lemon v.

Mr. Sawyer you may proceed whenever you're ready.

Henry W. Sawyer, III

This is an appeal from the dismissal of a complaint of three

The complaint, alleged violation of the First Amendment’s religious

Three-judge court dismissed the complaint on the First Amendment

On the Fourteenth Amendment, ground for a lack of standing in all

The transaction is labeled, purchase of services contract.

As Judge Hastie, dissenting below said, nevertheless and I quote “the

There are no new children involved, there is no new teaching”.

The Act provides for considerable new state regulations of the

And 97% of that, 97% is Roman Catholic.

Henry W. Sawyer, III

Henry W. Sawyer, III

For auditing procedures and for regulating of teaching content and

Now the complaint alleged particular violations of the establishment

Henry W. Sawyer, III

Henry W. Sawyer, III

Henry W. Sawyer, III

Henry W. Sawyer, III

Henry W. Sawyer, III

Henry W. Sawyer, III

Henry W. Sawyer, III

William J. Brennan, Jr.

Henry W. Sawyer, III

William J. Brennan, Jr.

Henry W. Sawyer, III

I understand it will certainly go to 38 million in the forthcoming year,

Henry W. Sawyer, III

After 200 years, the Pennsylvania assembly attempts what the

Henry W. Sawyer, III

This little question that the traditional church state doctrine is

I discern eight grounds on which church cases have been founded by

Could I ask you a preliminary question, (Inaudible)

Henry W. Sawyer, III

On still another level, the proponents say, having predicted the

If we’re talking simply about the traditional doctrine, there's no

Now Brad eld as a precedent I think, Your Honor.

As a precedent, I think Brad eld doesn’t need to troubles because

Henry W. Sawyer, III

Not if they're sectarian, that’s my understanding and here again

Now, I think that’s what happens in the hospital cases.

I'm speaking of the kind of thing that might be analogous to our

It doesn’t therefore teach or proselytize, it does not prefer, I don’t

So I think all of those di erences are important to the situation and I

I think it can only do that Zorach v. Clausonunder very special

Henry W. Sawyer, III

Henry W. Sawyer, III

But I think you can keep adding until it begins to be a permeation of

Now actually, the footnote in the Allen case, footnote 6 makes it

Now the analogy in Pennsylvania, you see would be if Pennsylvania in

Now in that sense, Allen it seems to me --

Henry W. Sawyer, III

Henry W. Sawyer, III

I think you could o er -- the state can o er free education to

Do you see an involvement there?

Henry W. Sawyer, III

I really am not trying to evade it.

It certainly is not this one.

Henry W. Sawyer, III

Quite clearly, Walz refused to validate the exemption there on the

That seems to me to pretty well jeopardize the argument of the

The other important thing is the concept in Walz -- both