Vermont Educational Buildings Financing Agency v. Mann

*272Smith, J.

(dissenting): My dissent to the opinion of the Court is directed only to that part of the decision which holds that the act of the Vermont Educational Buildings Financing Corporation in approving the construction of a new building for the College of St. Joseph the Provider, Inc. was not in violation of the First and Fourteenth Amendments of the United States Constitution.

The fact that the agency of the state furnishes aid in the form of low cost credit, rather than in direct appropriations of money to the institutions that it finances, is of little consequence. There can be no doubt that the agency is authorized to use the power and prestige of the state to aid the educational institutions with which it contracts, which is sufficient to raise the question, if the aid here furnished to St. Joseph comes under the bar of the First Amendment as applied to the states by the Fourteenth Amendment. Horace Mann League of U.S., etc. v. Board of Public Works, 242 Md. 645, 220 A.2d 51, 65.

No dispute exists here but that the College of St. Joseph is a church related school of learning. The trustees, who are appointed by the Mother Superior of, the Sisters of St. Joseph, consist of twelve members of the Roman Catholic faith, with two Protestant and one Jewish member. All of the administrative officers are of the Catholic faith. The faculty has twenty members of the Catholic faith, sixteen of whom are Roman Catholic nuns and two Protestant members. Out of a total student enrollment of one hundred and two all but three of the regular students are of the Roman Catholic faith.

But, as the majority has rightfully stated, the mere fact that public aid is furnished to an institution operated by a religious enterprise does not establish that such aid is used to support the religion professed by such operators. While the factual circumstances of St. Joseph’s operation above outlined could be of significance in determining whether this educational institution is religious or sectarian, of preeminent importance is the stated purposes of the college. Horace Mann League of U.S., etc. v. Board of Public Works, supra, p. 65.

The purpose of the college is stated in Article 11 of its Constitution, “The College of St. Joseph the Provider exists for the purpose of educating young women so that they may become well trained, professional women of true and deep Christian culture.” Here, the stated purpose of the College indicates clearly that it seeks to promote one religious culture, the Christian, in its students. Whether that “true” *273Christian culture in which students are to be educated would be that held to be true by the particular beliefs of the members of the religious society controlling the college is immaterial. It is the stated purpose to teach the culture of one general religious belief, as opposed to the teaching of other religious cultures, or even that of non-believers, that makes the college sectarian. The fact that the stated purpose of the college is to blend secular and sectarian education does not serve to lift the bar of the First Amendment against the aid attempted to be granted by the agency of the state. Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954.

The proposed aid to be furnished to St. Joseph by the Vermont Educational Building Financing Corporation, created by legislative enactment, would inevitably result in the advancement of the particular religious culture which is its stated educational purpose. The aid provided to educational institutions under the legislative enactment, when extended to St. Joseph’s exceeds the scope of legislative power as circumscribed by the Constitution. Abington School District v. Schempp, 374, U.S. 203, 222, 83 S.Ct. 1560, 10 L.Ed.2d 844.

I am unable to agree with the majority that the recent Supreme Court decision in Board of Education, etc. v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 supports the results attained in the opinion. The question presented in Allen was the constitutionality of a New York statute allowing the State of New York to supply text books to students in both public and parochial schools. Mr. Justice White, delivering the opinion of the Court stated: “The law merely makes available to all children the benefits of a general program to lend school books free of charge. Books are furnished at the request of the pupil, and ownership remains, at least technically in the State. Thus no funds or books are furnished to parochial schools, and the financial benefit is to parents and children, not to schools.”

In Allen as in the much earlier Cochran v. Louisiana State Board of Education, 281 U.S. 370, 50 S.Ct. 335, 74 L.Ed. 913, the Supreme Court has sustained the constitutionality of legislative acts as “neither advancing or inhibiting religion” where the aid furnished is beneficial to parents and children, and not to the school.

But the action of the State Agency now under consideration before us results in a direct benefit to the sectarian school, in the acquisition of a new building, and not to the students at St. Joseph, or their *274parents. I can find no authority in Allen to sustain the constitutionality of this act.

I would hold that the action of the agency in approving the construction of facilities for St. Joseph violated the First and Fourteenth Amendments of the Constitution of the United States.