Establishment Clause Jurisprudence and Board of Education v. Allen and White and Douglas and textbooks

In this 5-3 decision, the Court held that New York's education law requiring local public school authorities to lend textbooks free of charge to all students in grades 7-12, including those in private and parochial schools, did not constitute an establishment of religion in violation of the First Amendment. The dissenters tried to distinguish Everson from this case, arguing that textook lending practices amounted to taxing the residents to support the agencies of private religious organizations the taxpayers oppose.

The Program

Before 1965 New York law authorized public school boards either to rent or sell textbooks to public school students. In that year the Legislature passed a law requiring local school boards to purchase textbooks and lend them without charge "to all students residing in such district who are enrolled in grades seven to twelve of a public or private school which complies with the compulsory education law." Only textbooks which were designated for use in a public school could be loaned to private school students. The New York Court of Appeals concluded that the new education law was "completely neutral with respect to religion, merely making available secular textbooks at the request of the individual student and asking no question about what school he attends."

Justice White's Majority Opinion

While beginning with the obligatory nod to Everson, Justice White focused his attention on a two-part test developed in Schempp (1963) regarding whether a practice implicated the Establishment Clause. "The test may be stated as follows: what are the purposes and the primary effect of the enactment?" If either of these led to the advancement or inhibition of religion, it exceeded the scope of legislative power. Justice White admitted that the test was not "easy to apply" but concluded that the express purpose of the law was stated by the NY Legislature to be furtherance of the educational opportunities available to the young. In his words, "The law merely makes available to all children the benefits of a general program to lend school books free fo charge." Books are furnished to students and not to the parochial schools, and the financial benefit flows to parents and not to the schools. He admitted, however, that he was proceeding with the assumption that the books loaned to students are books not unsuitable for use in public schools because of religious content.

He knew he had to deal with the major argument of the dissenters: that textbooks are quite different that buses, the issue in Everson. Drawing on the Pierce case from 1925, he concluded that even religious schools pursue both religous instruction and secular education and that the state's interest in education is served sufficiently by reliance on the secular teaching that accompanied religious training in the schools maintained by the Society of Sisters. In addition, the legislature recognizes that private education has played and is now playing a significant role in raising national levels of knowledge, competence, and experience. Therefore, the Court could not conclude that all teaching in parochial schools is sectarian or religious or that the processes of secular and religous training are so intertwined that secualr textbooks are in fact instrumental in teaching religion.

Dissent

Just as Justice Black's moderate opinion in Everson, affirming the reimbursement of parochial school parents for bus fare, seemed to provoke something in him that led him to be an "absolute separationist" in subsequent cases, so Douglas's intellectually unsatisfactory approval of release-time in Zorach stimulated his opppositional juices, too, and by the end of his long tenure on the Court he became the most outspoken proponent of complete separation. No more eloquent and brilliant statement of that position is evident than in this case.

One should realize that brilliant philosophical statements emerge out of deep acquaintance with the facts of a case. So, in careful and even excruciating detail, Justice Douglas unpacks the actual way that the program works. Though the law says that students must request the book, in fact what happens is that students tell their administrators at parochial schools and these administrators then notify the public school districts of their needs. The books requested might have a strong religious slant to them and actually might not be used in any public school classroom, but as long as the parochial school administrators could get their public school counterparts or their boards to "approve" the "requested" books, they must be provided free of charge. Justice Douglas cites several instances of history or science textbooks which, though not having the "Nihil obstat" normally required for Catholic schools, expressly teach or assume Christian doctrine or give a Catholic "slant" on history.

The upshot of Justice Douglas's long series of quotations is to show that these kind of texts would be requested by parochial schools and provided by the public schools; that these texts are religous in nature; and that these texts would therefore be purchased by the state and supplied to religious students at the state expense. Justice White's blithe and easy assumption that the public school boards would not approve anything other than secular books therefore was incorrect.

As is so often the case, however, a brilliant and articulate disssent is merely that: a dissent.