Meek v. Pittenger

Mr. Justice Rehnquist,

with whom Mr. Justice White joins, concurring in the judgment in part and dissenting in part.

Substantially for the reasons set forth in my opinion and those of The Chief Justice and Mr. Justice *388White in Committee for Public Education & Religious Liberty v. Nyquist, 413 U. S. 756 (1973), and Sloan v. Lemon, 413 U. S. 825 (1973), I would affirm the judgment of the District Court.

Two Acts of the Pennsylvania Legislature are under attack in this case. Act 195 includes a program that provides for the loan of textbooks free of charge to elementary and secondary school students attending nonpublic schools, just as other provisions of Pennsylvania law provide similar benefits to children attending public schools, Pa. Stat. A.nn., Tit. 24, § 8-801. I agree with Mr. Justice Stewart that this program is constitutionally indistinguishable from the New York textbook loan program upheld in Board of Education v. Allen, 392 U. S. 236 (1968), and on the authority of that case I join the judgment of the Court insofar as it upholds the textbook loan program.

The Court strikes down other provisions of Act 195 dealing with instructional materials and equipment1 because it finds that they have “the unconstitutional primary effect of advancing religion because of the predominantly religious character of the schools benefiting from the Act.” Ante, at 363 (footnote omitted). This apparently follows from the high percentage of nonpublic schools that are “church-related or religiously affiliated educational institutions.” Ante, at 364. The Court *389thus again appears to follow “the unsupportable approach of measuring the ‘effect’ of a law by the percentage of” sectarian schools benefited. Committee for Public Education & Religious Liberty v. Nyquist, supra, at 804 (opinion of Burger, C. J.). I find that approach to the “primary effect” branch of our three-pronged test no more satisfactory in the context of this instructional materials and equipment program than it was in the context of the tuition reimbursement and tax relief programs involved in Nyquist, supra, and Sloan, supra.

One need look no further than to the majority opinion for a demonstration of the arbitrariness of the percentage approach to primary effect. In determining the constitutionality of the textbook loan program established by Act 195, the plurality views the program in the context of the State’s “well-established policy of lending textbooks free of charge to elementary and secondary school students.” Ante, at 360 (footnote omitted). But when it comes time to consider the same Act’s instructional materials and equipment program, which is not alleged to make available to private schools any materials and equipment that are not provided to public schools,2 the majority strikes down this program because more than 75% of the nonpublic schools are church related or religiously affiliated.

If the number of sectarian schools were measured as a percentage of all schools, public and private, then no doubt the majority would conclude that the primary effect of the instructional materials and equipment program is not to advance religion.3 One looks in vain, *390however, for an explanation of the majority’s selection of the number of private schools as the denominator in its instructional materials and equipment calculations. The only apparent explanation might be that Act 195 applies only to private schools while different legislation, Pa. Stat. Ann., Tit. 24, § 8-801, provides equipment and materials to public schools. But surely this is not a satisfactory explanation, for the plurality tells us, in connection with its discussion of the textbook loan program, which, is administered to the public schools through the same statutory provision that provides equipment and materials to the public schools, that “it is of no constitutional significance whether the general program is codified in one statute or two.” Ante, at 360 n. 8. We are left then with no explanation for the arbitrary course chosen.

The failure of the majority to justify the differing approaches to textbooks and instructional materials and equipment in the above respect is symptomatic of its failure even to attempt to distinguish the Pennsylvania textbook loan program, which the plurality upholds, from the Pennsylvania instructional materials and equipment loan program, which the majority finds unconstitutional. One might expect that the distinction lies either in the nature of the tangible items being loaned or in the manner in which the programs are operated. But the majority concedes that “the material and equipment that are the subjects of the loan — maps, charts, and laboratory equipment, for example — are 'self-polic[ing], in that starting as secular, nonideo*391logical and neutral, they will not change in use.’ ” Ante, at 365, quoting 374 F. Supp. 639, 660 (ED Pa. 1974). Nor can the fact that the school is the bailee be regarded as constitutionally determinative. Committee for Public Education & Religious Liberty v. Nyquist, 413 U. S., at 781. In the textbook loan program upheld in Allen, supra, the private schools were responsible for transmitting the book requests to the Board of Education and were permitted to store the loaned books on their premises. 392 U. S., at 244 n. 6. I fail to see how the instructional materials and equipment program can be distinguished in any significant respect. Under both programs “ownership remains, at least technically, in the State,” id., at 243. Once it is conceded that no danger of diversion exists, it is difficult to articulate any principled basis upon which to distinguish the two Act 195 programs.

The Court eschews its primary-effect analysis in striking down Act 194, ante, at 369, and relies instead upon the proposition that the Act “give[s] rise to a constitutionally intolerable degree of entanglement between church and state.” Ante, at 370. Acknowledging that Act 194 authorizes state financing “of teachers only for remedial and exceptional students, and not for normal students participating in the core curriculum,” ante, at 370, the Court nonetheless finds this case indistinguishable from Lemon v. Kurtzman and companion cases, 403 U. S. 602 (1971), in which salary supplement programs for core curriculum teachers were found unconstitutional. “[A] state-subsidized guidance counselor is surely as likely as a state-subsidized chemistry teacher to fail on occasion to separate religious instruction and the advancement of religious beliefs from his secular educational responsibilities.” Ante, at 371 (footnote omitted).

I find this portion of the Court’s opinion deficient as *392a matter of process and insupportable as a matter of law. The burden of proof ordinarily rests upon the plaintiff, but the Court’s conclusion that the dangers presented by a state-subsidized guidance counselor are the same as those presented by a state-subsidized chemistry teacher is apparently no more than an ex cathedra pronouncement on the part of the Court, if one may use that term in a case such as this, since the District Court found the facts to be exactly the opposite — after consideration of stipulations of fact and an evidentiary hearing:

“The Commonwealth, recognizing the logistical realities, provided for traveling therapists rather than traveling pupils. There is no evidence whatsoever that the presence of the therapists in the schools will involve them in the religious missions of the schools. . . . The notion that by setting foot inside a sectarian school a professional therapist or counselor will succumb to sectarianization of his or her professional work is not supported by any evidence.” 374 F. Supp., at 657.

The propensity of the Court to disregard findings of fact by district courts in Establishment Clause cases, see also Lemon v. Kurtzman, 403 U. S., at 665-667 (opinion of White, J.), is at variance with the established division of responsibilities between trial and appellate courts in the federal system, Fed. Rule Civ. Proc. 52 (a).

As a matter of constitutional law, the holding by the majority that this case is controlled by Lemon v. Kurtzman, supra, and companion cases marks a significant sub silentio extension of that 1971 decision. In those cases the Court struck down the Rhode Island salary supplement program, under which teachers employed by nonpublic schools could qualify for additional salary payments from the State in order to bring their salaries *393more closely in line with the prevailing scale in public schools, and a Pennsylvania program authorizing direct reimbursement to nonpublic schools; in order to qualify, the teachers could teach only subjects that were offered in the public schools. The premise supporting the Court’s conclusion that these programs “involve [d] excessive entanglement between government and religion,” 403 U. S., at 614, is found at 617:

“We cannot ignore the danger that a teacher under religious control and discipline poses to the separation of the religious from the purely secular aspects of precollege education. The conflict of functions inheres in the situation.” (Emphasis added.)

See also id., at 618. The auxiliary services program established by Act 194 differs from the programs struck down in Lemon in two important respects. First the opportunities for religious instruction through the auxiliary services program are greatly reduced because of the considerably more limited reach of the Act. Unlike the core curriculum instruction provided in the Lemon programs, “auxiliary services” are defined in Act 194 to embrace a narrower range of services:

“ ‘Auxiliary services’ means guidance, counseling and testing services; psychological services; services for exceptional children; remedial and therapeutic services; speech and hearing services; services for the improvement of the educationally disadvantaged (such as, but not limited to, teaching English as a second language), and such other secular, neutral, nonideological services as are of benefit to nonpublic school children and are presently or hereafter provided for public school children of the Commonwealth.” Act 194, § 1 (b).

Even if the distinction between these services and core curricula is thought to be a matter of degree, the sec*394ond distinction between the programs involved in Lemon and Act 194 is a difference in kind. Act 194 provides that these auxiliary services shall be provided by personnel of the public school system.4 Since the danger of entanglement articulated in Lemon flowed from the susceptibility of parochial school teachers to “religious control and discipline,” I would have assumed that exorcisation of that constitutional “evil” would lead to a different constitutional result. The Court does not contend that the public school employees who would administer the auxiliary services are subject to “religious control and discipline.” In fact the Court concedes that “auxiliary services personnel, because not employed by the nonpublic schools, are not directly subject to the discipline of a religious authority.” Ante, at 371. The decision of the Court that Act 194 is unconstitutional rests ultimately upon the unsubstantiated factual proposition that “[t]he potential for impermissible fostering of religion under these circumstances, although somewhat reduced, is nonetheless present.” Ante, at 372. “The test [of entanglement] is inescapably one of degree,” Walz v. Tax Comm’n, 397 U. S. 664, 674 (1970), but if the Court is free to ignore the record, then appellees are left to wonder, with good reason, whether the possibility of meeting the entanglement test is now anything more than “a promise to the ear to be broken to the hope, a teasing illusion like a munificent bequest in a pauper’s will.” Edwards v. California, 314 U. S. 160, 186 (1941) (Jackson, J., concurring).

I remain convinced of the correctness of Mr. Justice *395White’s statement in his dissenting opinion in Committee for Public Education & Religious Liberty v. Nyquist, 413 U. S., at 814-815:

“Positing an obligation on the State to educate its children, which every State acknowledges, it should be wholly acceptable for the State to contribute to the secular education of children going to sectarian schools rather than to insist that if parents want to provide their children with religious as well as secular education, the State will refuse to contribute anything to their secular training.”

I am disturbed as much by the overtones of the Court’s opinion as by its actual holding. The Court apparently believes that the Establishment Clause of the First Amendment not only mandates religious neutrality on the part of government but also requires that this Court go further and throw its weight on the side of those who believe that our society as a whole should be a purely secular one. Nothing in the First Amendment or in the cases interpreting it requires such an extreme approach to this difficult question, and “[a]ny interpretation of [the Establishment Clause] and the constitutional values it serves must also take account of the free exercise clause and the values it serves.” P. Kauper, Religion and the Constitution 79 (1964). As Mr. Justice Douglas wrote for the Court in Zorach v. Clauson, 343 U. S. 306, 313-314 (1952):

“We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. We make room for as wide a variety of beliefs and' creeds as the spiritual needs of man deem necessary. We sponsor an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and *396the appeal of its dogma. When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe. Government may not finance religious groups nor undertake religious instruction nor blend secular and sectarian education nor use secular institutions to force one or some religion on any person. But we find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence.”

Except insofar as the Court upholds the textbook loan program, I respectfully dissent.

The District Court upheld these sections of Act 195 except insofar as they “permit[ted] the loan of instructional equipment which can be easily diverted to a religious use.” 374 F. Supp. 639, 661 (ED Pa. 1974). The appellees have not sought review of this ruling. See ante, at 357-358, n. 7. My use of the term “instructional equipment” in this opinion is intended,' therefore, to be coextensive with that portion of the program upheld by the District Court. See also 1972 Revisions to the Guidelines for the Administration of Acts 194 and 195, reproduced as Appendix A to Brief for Appellants.

374 F. Supp., at 644. Pa. Stat. Ann., Tit. 24, § 8-801. Instructional materials and equipment are defined in Act 195 largely in terms of materials and equipment that “are presently or hereafter provided for public school children of the Commonwealth.” Act 195, § 1 (b).

In 1972, “ [approximately one quarter of all children in the *390Commonwealth, in compliance with the compulsory attendance provisions of this act, attend[ed] nonpublic schools.” Act 195, § 1 (a). If it be assumed that the average number of students per sectarian school does not vary materially from the average number of students per nonsectarian school, then less than 19% of all students attend sectarian schools.

Act 194, § 1 (e) states that auxiliary services shall be provided by “each intermediate unit.” The intermediate unit is a local administrative agency which oversees and assists school districts within a particular geographic area. See Pa. Stat. Ann., Tit. 24, §§9-951 to 9-971 (Supp. 1974-1975).