# Tilton v. Richardson

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## Dissenting Opinion

    Douglas
United States Supreme Court
403 U.S. 672
Tilton et al. v. Richardson, Secretary of Health, Education, and Welfare, et al.
Appeal from the United States District Court for the District of Connecticut
No. 153. Argued: March 2-3, 1971 --- Decided: June 28, 1971
The Higher Education Facilities Act of 1963 provides federal construction grants for college and university facilities, excluding "any facility used or to be used for sectarian instruction or as a place for religious worship, or... primarily in connection with any part of the program of a school or department of divinity." The United States retains a 20-year interest in any facility constructed with funds under the Act, and if, during this period, the recipient violates the statutory conditions, the Government is entitled to recovery of funds. Four church-related colleges and universities in Connecticut received federal construction grants for five facilities. Appellants attempted to show, in a three-judge court, that the recipient institutions were "sectarian" by introducing evidence of their relations with religious authorities, the curricula content, and other indicia of religious character. Appellee colleges introduced testimony that they had fully complied with the statutory conditions and that their religious affiliations did not interfere with their secular educational functions. The court held that the Act authorized grants to church-related schools, and sustained its constitutionality, finding that the Act had neither the purpose nor the effect of promoting religion.
Held: The Act is constitutional except for that portion providing for a 20-year limitation on the religious use of the facilities constructed with federal funds. Pp. 676-689, 661-671, 692.
312 F. Supp. 1191, vacated and remanded.
THE CHIEF JUSTICE, joined by MR. JUSTICE HARLAN, MR. JUSTICE STEWART, and MR. JUSTICE BLACKMUN, concluded that:
    1. The Act includes colleges and universities with religious affiliations. Pp. 676-677.
    2. Congress' objective of providing more opportunity for college education is a legitimate secular goal entirely appropriate for governmental action. Pp. 678-679.
    3. The record fully supports the District Court's findings that the colleges involved have not violated the statutory restrictions; it provides no basis for assuming that religiosity necessarily permeates the secular education of the colleges; and it yields no evidence that religion seeps into the use of any of the five facilities. Pp. 680-682.
    4. The limitation of federal interest in the facilities to a period of 20 years violates the Religion Clauses of the First Amendment, as the unrestricted use of valuable property after 20 years is in effect a contribution to a religious body. Pp 682-684.
    5. This case is distinguished from Lemon v. Kurtzman, ante, p. 602; (a) there is less danger here than in church-related primary and secondary schools dealing with impressionable children that religion will permeate the area of secular education, since religious indoctrination is not a substantial purpose or activity of these church-related colleges, (b) the facilities provided here are themselves religiously neutral, with correspondingly less need for government surveillance, and (c) the government aid here is a one-time, single-purpose construction grant, with only minimal need for inspection. Cumulatively, these factors lessen substantially the potential for divisive religious fragmentation in the political arena. Pp. 684-689.
    6. The implementation of the Act does not inhibit the free exercise of religion in violation of the First Amendment. P. 689.
MR. JUSTICE WHITE concurred in the judgment in this case. Pp. 661-671.
MR. JUSTICE DOUGLAS, joined by MR. JUSTICE BLACK and MR. JUSTICE MARSHALL, agreed only with that part of the plurality opinion relating to the limitation of federal interest in the facilities to 20 years, concluding that a reversion of a facility at the end of that period to a parochial school would be unconstitutional as a gift of taxpayers' funds. P. 692.
BURGER, C.J., announced the Court's judgment and delivered an opinion in which HARLAN, STEWART, and BLACKMUN, JJ., joined. WHITE, J., joined an opinion concurring in the judgment, ante, p. 661. DOUGLAS, J., filed an opinion dissenting in part, in which BLACK and MARSHALL, JJ., joined, post, p. 689. BRENNAN, J., filed a dissenting opinion, ante, p. 642.
Leo Pfeffer argued the cause for appellants. With him on the briefs were Peter L. Costas, Paul W. Orth, and Jerry Wagner.
Daniel M. Friedman argued the cause for appellees Richardson et al. On the brief were Solicitor General Griswold, Assistant Attorney General Ruckelshaus, Robert V. Zener, and Donald L. Horowitz. F. Michael Ahern, Assistant Attorney General of Connecticut, argued the cause for appellee Peterson. With him on the brief was Robert K. Killian, Attorney General. Edward Bennett Williams argued the cause for appellee colleges and universities. With him on the brief were Jeremiah C. Collins, Howard T. Owens, Lawrence W. Iannotti, and Bruce Lewellyn.
Briefs of amici curiae urging reversal were filed by Franklin C. Salisbury for Protestants and Other Americans United for Separation of Church and State, and by Peter L. Costas and Paul W. Orth for the Connecticut State Conference of Branches of the NAACP et al.
Briefs of amici curiae urging affirmance were filed by Wilber G. Katz and John Holt Myers for the American Council on Education et al., and by Nathan Lewin for the National Jewish Commission on Law and Public Affairs.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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