# Board of Education of Central School District No. 1 v. Allen

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## Concurring Opinion

    Harlan

## Dissenting Opinions

    Black
    Douglas
    Fortas
United States Supreme Court
392 U.S. 236
Board of Education of Central School District No. 1 et al. v. Allen, Commissioner of Education of New York, et al.
Appeal from the Court of Appeals of New York
No. 660. Argued: April 22, 1968. --- Decided: June 10, 1968.
New York's Education Law requires local public school authorities to lend textbooks free to charge to all students in grades seven to 12, including those in private schools. Appellant school boards sought a declaration that the statutory requirement was invalid as violative of the State and Federal Constitutions, an order barring appellee Commissioner of Education from removing appellants' members from office for failing to comply with it, and an order preventing the use of state funds for the purchase of textbooks to be lent to parochial students. The trial court held the law unconstitutional under the First and Fourteenth Amendments and entered summary judgment for appellants on the pleadings; the Appellate Division reversed and ordered the complaint dismissed since appellant school boards had no standing to attack the statute; and the New York Court of Appeals held that appellants did have standing but that the statute did not violate the State or Federal Constitution. The Court of Appeals said that the law was to benefit all school children, without regard to the type of school attended, that only textbooks approved by school authorities could be loaned, and therefore the statute was "completely neutral with respect to religion."
Held: The statute does not violate the Establishment or the Free Exercise Clause of the First Amendment. Pp. 241-249.
    (1) The express purpose of the statute was the furtherance of educational opportunities for the young, and the law merely makes available to all children the benefits of a general program to lend school books free of charge, and the financial benefit is to parents and children, not to schools. Everson v. Board of Education, 330 U.S. 1. Pp. 243-244.
    (2) There is no evidence that religious books have been loaned, and it cannot be assumed that school authorities are unable to distinguish between secular and religious books or that they will not honestly discharge their duties to approve only secular books. Pp. 244-245.
    (3) Parochial schools, in addition to their sectarian function, perform the task of secular education, and, on the basis of this meager record, the Court cannot agree with appellants that all teaching in a sectarian school is religious or that the intertwining of secular and religious training is such that secular textbooks furnished to students are in fact instrumental in teaching religion. Pp. 245-248.
    (4) In the absence of specific evidence, and based solely on judicial notice, it cannot be concluded that the statute results in unconstitutional state involvement with religious instruction or violates the Establishment Clause. P. 248.
    (5) Since appellants have not shown that the law coerces them in any way in the practice of religion, there is no violation of the Free Exercise Clause. Pp. 248-249.
20 N.Y. 2d 109, 228 N.E. 2d 791, affirmed.
Marvin E. Pollock argued the cause for appellants. With him on the brief was Alan H. Levine.
Jean M. Coon, Assistant Attorney General of New York, argued the cause for appellee Allen. With her on the brief were Louis J. Lefkowitz, Attorney General, and Ruth Kessler Toch, Solicitor General. Porter R. Chandler argued the cause for appellees Rock et al. With him on the brief were William R. Ball, Richard E. Nolan, and James J. MacKrell.
Briefs of amici curiae, urging reversal, were filed by Leo Pfeffer, Arnold Forster, Edwin J. Lukas, Paul Hartman, Sol Rabkin, and Joseph B. Robison for the American Jewish Committee et al., and by Franklin C. Salisbury for Protestants and Other Americans United for Separation of Church and State.
Briefs of amici curiae, urging affirmance, were filed by Solicitor General Griswold, Assistant Attorney General Weisl, Lawrence G. Wallace, Alan S. Rosenthal, and Robert V. Zener for the United States; by Herbert F. DeSimone, Attorney General of Rhode Island, Charles G. Edwards, Assistant Attorney General, William C. Sennett, Attorney General of Pennsylvania, James L. Oakes, Attorney General of Vermont, Robert C. Londerholm, Attorney General of Kansas, William B. Saxbe, Attorney General of Ohio, and Joe T. Patterson, Attorney General of Mississippi; by Jack P.F. Gremillion, Attorney General, for the State of Louisiana; by Boston E. Witt, Attorney General, and Myles E. Flint, Assistant Attorney General, for the State of New Mexico; by Ethan A. Hitchcock for the National Association of Independent Schools, Inc.; by R. Raber Taylor, Stuart D. Hubbell, and Herman Cahn for Citizens for Educational Freedom; by Edward C. Maguire for the New York State AFL-CIO; by Thomas J. Ford, Edward J. Walsh, Jr., and George S. Eaton for the Long Island Conference of Religious Elementary and Secondary School Administrators; by Charles M. Whelan, W.R. Consedine, Alfred L. Scanlan, and Harmon Burns for the National Catholic Educational Association et al.; by Julius Berman for the National Jewish Commission on Law and Public Affairs, and by James P. Brown for the Lutheran Church-Missouri Synod.

## 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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