Committee for Public Education & Religious Liberty v. Nyquist

HAYS, Circuit Judge

(in part concurring in the result, dissenting in part).

I am in agreement with the view of my colleagues that the part of the state statute (N.Y.Laws of 1972, c. 414) providing for grants to private schools for the maintenance of buildings cannot survive a challenge based on the Establishment Clause and the eases decided under it. Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971); Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971); Walz v. Tax Comm’n, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970); Bd. of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968); Everson v. Bd. of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947). I agree with Judge Gurfein’s view that the part of the statute providing for flat tuition grants to low-income parents is also unconstitutional. In addition to the cases previously cited see also Wolman v. Essex, 342 F.Supp. 399 (E.D.Ohio, 1972) (three judge court); Lemon v. Sloan, 340 F.Supp. 1356 (E.D.Pa., 1972) (three judge court). I therefore concur in the result reached by Judge Gurfein as to these aspects of the statute.

I dissent from the court’s judgment concerning section 3 of the state act. I believe that that section, which provides for tax benefits with respect to tuition paid by the taxpayer for children attending religious schools, is also unconstitutional.

The purpose and effect of this provision of the statute are the same as the second portion, i. e., to subsidize religious training for children.1 Both sections aim to reimburse parents who have chosen to send their children to religious schools. As Mr. Justice Jackson said:

“The prohibition against establishment of religion cannot be circumvented by a subsidy, bonus, or reimbursement of expense to individuals for receiving religious instruction and indoctrination.” Everson v. Bd. of Education, 330 U.S. at 24, 67 S.Ct. at 516 (Jackson, J. dissenting).

And “[w]hat may not be done directly may not be done indirectly lest the Establishment Clause become a mockery.” School District of Abington v. Schempp, 374 U.S. 203, 230, 83 S.Ct. 1560, 1575, 10 L.Ed.2d 844 (Douglas, J. concurring).2

*675The benefits of the tax exemption allowed by section 3 are of the same nature as those accorded under the tuition reimbursement provisions of section 2. There is no essential difference between a parent’s receiving a $50 reimbursement for tuition paid to a parochial school and his receiving a $50 benefit because he sends his child to a parochial school. In both instances the money involved represents a charge made upon the state for the purpose of religious education.

The exemption of church property from ordinary taxation provides no analogy for the tax benefits of the present statute. The schools in the nonprofit nonpublic category in New York State are tax-exempt, N.Y. Real Prop. Tax Law § 421(1) (a) (McKinney Supp.1971), and that status is not in dispute in this case. In Walz v. Tax Commission, supra, the Court believed nearly two centuries of acquiescence in and approval of such exemptions lent support to the proposition that the exemptions did not violate the Establishment Clause. 397 U.S. at 680, 90 S.Ct. 1409. Moreover, the Court noted in Walz that the State had not “singled out one particular church or religious group or even churches as such; rather it [had] granted exemption to all houses of religious worship within a broad class of property owned by nonprofit, quasi-public corporations . . . . ” Id. at 673, 90 S.Ct. at 1413. Here, as the three judge panel pointed out in Wolman v. Essex, supra, “[t]he limited nature of the class affected by the legislation, and the fact that one religious group so predominates within the class, makes suspect the constitutional validity of the statute.” 342 F.Supp. at 412. Finally, the Walz court held (p. 674, 90 S.Ct. p. 1414) that:

“Elimination of exemption would tend to expand the involvement of government by giving rise to tax valuation of church property, tax liens, tax foreclosures, and the direct confrontations and conflicts that follow in the train of those legal processes.”

The Walz decision, as the Court said in Lemon v. Kurtzman, supra, p. 614, 91 S.Ct. p. 2112 “tended to confine rather than enlarge the area of permissible state involvement with religious institutions . . . .”

Nor does the present case concern the tax deductibility of religious contributions. Such contributions, even to church schools, are deductible under New York law, N.Y. Tax Law § 360(10)(b) (McKinney 1966), and they would not be affected by the statute under scrutiny. Even assuming that tax deductions for contributions to religious schools are constitutional — a point not yet passed upon by the Supreme Court — we are not dealing with such deductions in the present case. A payment for services rendered is not a contribution, and such payments are not deductible. As the court said in DeJong v. Commissioner, 36 T. C. 896, 899-900 (1961), aff’d 309 F.2d 373 (9th Cir. 1962):

“We are satisfied on the record before us that at least a portion of the $1,075 paid by petitioners to the society was in the nature of tuition fees for the education which the society was expected to furnish to petitioners’ children and was not in fact a true charitable contribution. Payments pledged and made by parents in the circumstances disclosed by the evidence were not voluntary and gratuitous contributions motivated merely by the satisfaction which flows from the performance of a generous act; they were induced, at least in substantial part, by the benefits which the parents sought and anticipated from the enrollment of their children as students in the society’s school.”

*676See also McLaughlin v. Commissioner, 51 T.C. 233 (1968); Fausner v. Commissioner, 55 T.C. 620 (1971).

The tax benefit statute was quite frankly enacted as a substitute for partial subsidies to parents who pay tuition to religious schools. It goes hand in hand with section 2. The benefits for section 3 parents begin at approximately the point where the grants to section 2 parents leave off.3

As a matter of fact section 3 is so closely bound up with section 2 that the invalidity of section 3 follows from its relationship to section 2. If it is evident that the legislature would not have enacted the part of the statute that is claimed to be within its power independently of that which is not, the statute is wholly invalid, regardless of the inclusion of a separability clause. Champlin Refining Co. v. Corporation Commission, 286 U.S. 210, 234, 52 S.Ct. 559, 76 L.Ed. 1062 (1932). It is obvious that the New York state legislature would not have enacted section 3 benefiting the wealthier parents had they not intended it to be a complement to section 2 benefiting low income parents. Section 3 must therefore fall if section 2 is unconstitutional, as we have held it is.

For the foregoing reasons, I respectfully dissent from the determination of the court as to the constitutionality of section 3.

. Although section 3 is made applicable to parents whose children attend any nonprofit nonpublic school, the overwhelming majority of these parents are sending their children to religious schools where sectarian indoctrination takes place. According to the Fleischman Commission report, religious schools make up 93.5% of New York State’s nonpublio schools. The remaining 6.5% consist of both profit-making and nonprofit-making private schools. Report on Nonpublie Education in the State of New York for the New York State Commission on the Quality and Financing of Elementary and Secondary education, “The Collapse of Nonpublic Education: Rumor or Reality?”, Vol. 1, pp. 1-6. See Transcript in Pearl v. Nyquist, p. 64. The profit-making schools are not, of course, covered by section 3.

. In the context of racial discrimination, grants to schools, students or their parents to avoid the commands of the Fourteenth Amendment have been consistently struck down, see Griffin v. County School Bd. of Prince Edward County, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964); Hall v. St. Helena Parish School Bd., 197 F.Supp. 649 (E.D.La., 1961), aff’d, 368 U.S. 515, 82 S.Ct. 529, 7 L.Ed.2d 521 (1962); Lee v. Macon County Bd., 267 F.Supp. 458 (M.D.Ala., 1967) aff’d, sub nom. Wallace v. United States, 389 U.S. 215, 88 S.Ct. 415, 19 L.Ed.2d 422 (1967); Brown v. South Carolina State Bd., 296 F.Supp. 199 (D.S.C., *6751968) aff’d, 393 U.S. 222, 89 S.Ct. 449, 21 L.Ed.2d 391 (1968); Coffey v. State Educ. Finance Comm’n, 296 F.Supp. 1389 (S.D.Miss., 1969).

. The following table shows the estimated net benefits to taxpayers under section 3. The information' is taken from the memorandum which accompanied the bill. It was submitted to each legislator by Senator Brydges and was cited by the majority ante p. 672.

If Adjusted Gross Income is Less than $9,000 $9,000-10,999 11.000- 12,999 13.000- 14,999 15.000- 16,999 17.000- 18,999 19.000- 20,999 21.000- 22,999 23.000- 24,999 25,000 and oyer

Income Exclusion Per Pupil is $1,000 850 700 550 400 250 150 125 100 0

Estimated Net Benefit to Family

One child $50.00 42.50 42.00 38.50 32.00 22.50 15.00 13.75 12.00 0

Two children $100.00 85.00 84.00 77.00 64.00 45.00 30.00 27.50 24.00 0

Three or more $150.00 127.50 126.00 115.50 96.00 67.50 45.00 41.25 36.00 0