Earl Warren: Number 660, Board of Education of Central School District number 1, et al. appellants, versus James E. Allen, Jr. as Commissioner of Education of New York, et al. Mr. Pollock.
Marvin E. Pollock: May it please the Court. The issue in this case is where a consonant with the religious clauses of the First Amendment of the United States Constitution. The State of New York may furnish textbooks purchased with tax raised funds for use in religious schools. The material facts in the case are not in dispute. Prior to 1965, Section 701 of the New York Education law, authorized local school boards to purchase textbooks and either to loan or sell them to pupils in the public schools in the state. In 1965, the provisions relating to textbooks in Section 701 were amended effective September 1, 1966. The effect of the amendment was to turn a permissive practice into a mandatory one and to extend the coverage of the law to private schools. Under the law as amended, each school board in New York must purchase and long free of charge to all children residing in its district enrolled in a grade from 7 through 12 of an accredited public or private school any textbook requested by the child so long as the textbook was one designated for use in any public school in the state or by any school board in the state. As originally enacted, the law contained no limit on the number of books required to be purchased and no limit on the amount of money that had to be spent for the books by the local school district. It did however provide for state reimbursement or state allocation to the extent of $10.00 a pupil. In the view of the East Greenbush School Board which had children residing in its district who were enrolled in grade 7 through 12 accredited private religious schools. The provisions of Section 701 as amended violated both the New York State Constitution and the First Amendment to the Federal Constitution both of which each member had sworn to uphold. Failure to implement the law on a part of this board would have subjected the members a removal from office and also would have subjected the school district to a loss of state funds. To resolve this conflict, the Greenbush School Board filed an action in the Supreme Court Albany County. The relief sought in the complaint was a judgment declaring the Textbook Law to the extent that related to church schools unconstitutional and in violation to both the New York State Constitution on the First amendment to the Federal Constitution. It also sought an order in joining the State Commissioner of Education from implementing the provisions of the law.
Speaker: You're objecting only to the adaptation of the statute in the parochial schools, are you not?
Marvin E. Pollock: That's correct, Your Honor.
Speaker: You had no constitutional objection to furnish the nonsectarian schools?
Marvin E. Pollock: These boards have raised no constitutional objection. After the suit was filed and the suit incidentally was filed April 29, 1966 which is about four month before the law was to go into effect, after the suit was filed, the Textbook Law was further amended in two respects. The first respect was to reduce the financial book on the local school boards. The second respect was to define a textbook as used in the statute to mean a book which a student is required to use as a text for a semester or more in a school he legally attends.
Earl Warren: In schools what, I didn't understand?
Marvin E. Pollock: In a school he legally attends. The state answered the complaint, did not raise any material issue of fact but did deny the allegations relating to the unconstitutionality of the law. The state also raised a number of affirmative offenses, principal one of which was that the Greenbush School Board lacks standing to sue on the ground that it was an instrumentality of the state and could not challenge State Law. After issue was joined, five parents of children who resided in the East Greenbush School Board were permitted to intervene in the action. In their answer, they too did not raise any material issue of fact but did deny the allegations of unconstitutionality of the law. And in addition, they raised a number of affirmative defenses. The thrust of these defenses was that to deny the books to them and their children while permitting the furnishing of these books to pupils attending private nonsectarian schools constituted an interference with the free exercise of their religion and a denial of due process and equal protection. All parties then move for judgment. In substance, judgment on the pleading, they were in all affidavits. At the time of oral argument, the Board of Education of Union Free School District No. 3 was joined as a party plaintiff and was deemed to have adopted all the pleadings in the case. The Supreme Court Albany County granted the plaintiff's cross-motion for judgment. It ruled that the Greenbush -- the two school boards had standing to sue, and also that the law as amended in 1965 and in 1966 violated the State Constitution and both the establishment of free exercise clauses of the Federal Constitution and a judgment was entered to that effect which among other things enjoined the state from implementing the statute. An appeal was taken to the Appellant Division, third department. Three of the justices constituting a majority of that court voted to reverse the judgment of the Supreme Court Albany County and dismiss the complaint on the sole ground that the appellants lack standing to sue. Two remaining justices would have found that the appellants had standing and would have voted to reverse on the merits. They would have found a law constitutional in all respects. The case was then appealed to the New York Court of Appeals. That court reached the merits of the action. It ruled that the appellants had standing to sue. And by a four-to-three vote, it ruled that the Textbook Law as amended did not violate State Constitution, did not violate the establishment clause of the Federal Constitution. Approximately 20 years ago, this Court for the first time defined the scope of the establishment clause's coverage.
Earl Warren: Before you get to your main argument, are you going to discuss the question of standing to sue in this Court?
Marvin E. Pollock: As far as I know, I would rest on the record.
Earl Warren: I beg your pardon?
Marvin E. Pollock: I said as far as I'm concerned, since the standing has been decided and no issue has been raised by the appellees.
Earl Warren: Well need the standing to sue issue would be the same in this Court as it was in New York?
Marvin E. Pollock: No, it need not, Your Honor, but --
Earl Warren: Is it in the same posture as it was in New York?
Marvin E. Pollock: I think it is, Your Honor. I think this case comes --
Earl Warren: I thought in New York that they took the school board out of its dilemma by saying that the act was constitutional and they were no longer subject then to any sanctions for not obeying the law of New York, which was the reason that they granted the standing to sue, isn't that right?
Marvin E. Pollock: Well, I didn't understand it that way, Your Honor. I -- as I understood it, they ruled that a state board is not –
Earl Warren: I beg your pardon?
Marvin E. Pollock: As I understand, the ruling of the Court on the standing question, they said that the state board has standing to sue and to challenge to the State Law.
Earl Warren: Yes, but you come to this Court, do you not? And asked us to take jurisdiction because your Board of Education is faced with a dilemma that it cannot out of, namely that if it obeys the law of New York -- I mean if it refuses to obey the law of New York that it's subject to sanctions. And then the Court of Appeals of New York has now availed that the law is constitutional and they can go forward without any danger of sanctions.
Marvin E. Pollock: Well, as far as I can say here, I think if they went ahead and violated the Federal Constitution, it is quite conceivable that they might be subject to other liabilities which have not so far been asserted. I would think that they might have taxpayer cases exposure if they're spending federal funds in violation of the Federal Constitution or spending state funds in violation of the Federal Constitution. So I don't think the case would be at an end on that question. I think that they're not out of the dilemma yet and I would think that if -- until the federal question was decided, this would be an open question.
Earl Warren: Well, it might for some people.
Marvin E. Pollock: That's correct, Your Honor.
Earl Warren: But is it for this Court?
Marvin E. Pollock: I would think so, Your Honor. I think that there are people in these school districts who might well attack the active spending funds in violation of the -- of what they deem to be in violation of the Federal Constitution. And that might raise the involved issue again so that they would then be in jeopardy. They would have the same dilemma that is to risk the violation and to spend the funds or not to risk the violation.
Abe Fortas: May I ask you a preliminary -- another preliminary question, please?
Earl Warren: Yes, Mr. Justice.
Abe Fortas: I'm not certain as to whether the act and the regulations make it clear that the only textbooks that can be purchased and furnished to a parochial school are textbooks which are approved by a state authority as distinguished from the governing authority of the parochial schools. Are you telling me that that is clear in the law and (a) in the law, (b) in the regulations?
Marvin E. Pollock: I -- I'm not saying that it's clear on the law. I think Justice Van Voorhis pointed this out in his dissent on the Court of Appeals.
Abe Fortas: Alright. Now what about the regulations? They seem -- I can't look at where they --
Marvin E. Pollock: The regulations are attached as an appendix to the appellant's brief beginning at page 4a.
Abe Fortas: Because when I read them, I thought that the ambiguity to say the least was carried over.
Marvin E. Pollock: I think in part --
Abe Fortas: Into the regulations.
Marvin E. Pollock: I think in part, it is. The --
Potter Stewart: What did the Court of Appeals say about it? Not to the center but the New York Court of Appeals?
Marvin E. Pollock: I don't think that they raised the question. They assumed that the books would be secular. I think that they're saying that the statute -- construing the statute to require the giving of secular books --
Abe Fortas: That's right, but that's the same.
Marvin E. Pollock: -- as designated --
Abe Fortas: I'm pointing out the difference between secular textbook and who prescribes it.
Marvin E. Pollock: I understand, Your Honor. I think the New York Court of Appeals, as I understand it, did not get into that question. They just said that the books would be prescribed by public authorities without -- I don't think that they found any problem with the language of the statutes in majority of places.
Abe Fortas: Well, I confess that that bothers me because the statute does read as if the statute says that the textbooks should be those that are designated for use or are approved by any Boards of Education trustees or other school authorities. It might make substantial difference in this case if the parochial schools have the power to designate the textbooks, secular textbooks that are then purchased by the state funds.
Marvin E. Pollock: I think that would raise a definite problem, Your Honor. And as I said, Justice Van Voorhis was bothered with that in the Court of Appeals. The majority I think this one had on the basis that the statute meant to them that it was the public authorities who designated the book. They did not do anything more than quote the language of the statute as I read the opinion and said that this is what it is, that the public authorities are the ones that designate the books.
William J. Brennan, Jr.: Well then, may we take that as an interpretation for the New York statute regulations?
Marvin E. Pollock: I don't think so.
William J. Brennan, Jr.: What the Court said, what the majority said.
Marvin E. Pollock: That's what -- I don't know why. I think that --
William J. Brennan, Jr.: If they said, as I gather and you believe they did, whether they assumed to however they did it in effect that they must be textbooks designated by the public authority, why isn't that an interpretation upon which we should proceed?
Marvin E. Pollock: I think for federal questions involved in this case, I don't know why we should bound here by the construction --
William J. Brennan, Jr.: But we can't construe the New York statute and regulations if the Court of Appeals has given that definitive construction, can we?
Marvin E. Pollock: Well, I'm not sure that it did and I've read that opinion and I don't know that it did. I think it cited the statute and then said that they went into the secularity of the books but didn't do anything more than that. As I understand it --
Byron R. White: Do you think it's satisfactory how that the books to be improved happen to be secular books?
Marvin E. Pollock: I think that's what it said. That's what it said the statue has.
Abe Fortas: Well, I don't want to take any more of your time. I agree with you on page 67a of the appendix. The Court of Appeals said that textbooks have to be secular, but I -- perhaps I overlooked or have forgotten where they said that they have to fix – such the books have to be designated or approved by a public authority.
Marvin E. Pollock: I think again, if I may read from the Court of Appeals' opinion, they say that only textbooks designated for use by the public schools are approved by Boards of Education, trustees or school authorities may be lent and inside the statute.
Abe Fortas: That's just according to statute.
Marvin E. Pollock: That's correct. They do not go on to say --
Abe Fortas: The phrase “school authorities” --
Marvin E. Pollock: They do not define that in this opinion.
Abe Fortas: So that I haven't been able to find in here any narrowing down of this troublesome language as I see it that appears in the statute.
Marvin E. Pollock: That's correct. I don't think the Court did define that in the opinion.
Earl Warren: Well, for the purposes of your argument, what interpretation of the statute do you want us to assume here?
Marvin E. Pollock: Well, I would say that we could assume here that the books are designated by the public authorities and not the parochial schools --
Earl Warren: And not by the religious authorities.
Marvin E. Pollock: Religious authorities of the parochial schools. We could assume that and still find the statute to be unconstitutional.
Earl Warren: And do you think we're entitled to take that position?
Marvin E. Pollock: I don't think so but I think --
Earl Warren: What position do you want us to think we ought to take?
Marvin E. Pollock: I think you ought to take the position that the statute is vague and is susceptible of the construction of the parochial schools may actually designate the books. I think in implementation, this is probably how in part it could work out anyhow. But I think that even if the statute is not construed that way, I think that the law is still bad so that I would be satisfied if this Court were to construe the statute to mean that the public authorities designate the books.
Earl Warren: Have you argued this in your brief?
Marvin E. Pollock: I have not. I have --
Earl Warren: Have you assumed in your argument below and in this Court that these books were to be prescribed by a public authority?
Marvin E. Pollock: I have maybe -- I have assumed that's the case, but I have also argued that religious schools may play a role in the selection –
Earl Warren: I beg your pardon?
Marvin E. Pollock: May play -- the religious schools may play a role in the selection of books.
Earl Warren: In what?
Marvin E. Pollock: In the selection of books.
Earl Warren: Prescribed by whom?
Marvin E. Pollock: Well, prescribed by the public authorities, but I have argued that the public authorities in many cases consist of a Board of Education elected by the residence of the particular school district and in some cases, I think where -- particularly where some religious group has let's say an ethnic majority, they do have power to elect the people to the board who are more prone to follow their views. And once this board is elected and does have the power to designate books, it would not be unusual to have these books. These boards designate books which are not contrary to the face which they hold. I think to that extent, you have some involvement or some possibility of involvement. So whether the books are designated by a public authority, the public authority itself is made up of people.
Potter Stewart: On the brief of the appellee, it stated categorically that the statutory reading on the footnote on page three of the intervener appellee's brief, the statutory definition of “school authorities” in Education Law Section 2 Subsection 12 makes it plain that this phrase, that is the phrase school authorities, which means the public school authorities. Do you quarrel with that?
Marvin E. Pollock: I think I quarrel with the statement that it makes it plain.
Potter Stewart: It's statutory definition. The statutory -- what is the statutory definition in Section 2(12)? I refer to that on page three of school authorities.
Marvin E. Pollock: Trustees of a Board of Education or corresponding officers, whether one or more and by whatever name known of a city school district or other school districts however created.
Potter Stewart: Is there a definition there of school --
Marvin E. Pollock: Yes, there is. The term school authorities means that trustees or Board of Education or corresponding officers, whether one or more and by whatever name known of a city school district or other school districts however created. Now that that might -- that would define, presumably define school authorities.
William J. Brennan, Jr.: Will public schools are in addition there?
Marvin E. Pollock: Yes, it would.
William J. Brennan, Jr.: And only public schools?
Marvin E. Pollock: That's correct. That would define the term “school authorities”. But not define the term boards of education --
Earl Warren: What conclusions does that lead you to then on this thing that we've been discussing?
Marvin E. Pollock: I take it that there is a question in my mind, and I don't know that anybody can solve it by even going to the construction laws to whether or not the books must be designated by a public authority. I think there's some question in the statute and I think even if there is no question, that there is -- the books must be designated for use by a public authority, I think you still have the problem that the public authority could consist of eight Board of Education anywhere in the state who has the right to designate books. And I think I have suggested in my brief that this does make the act susceptible to parochial interference. If a school board is dominated by a faith, it can designate books for use. Then, school boards anywhere else in the state or children anywhere else in the state can order that book. And once the book is on the list --
Earl Warren: In other words, your position is that if the school board in Buffalo, New York prescribed certain books that the children in New York would demand those books and you got them and used them in a manner that the statute contemplates.
Marvin E. Pollock: That's correct, Your Honor.
Earl Warren: That is your concern of the statute?
Marvin E. Pollock: That is my construction of the statute.
Earl Warren: Was that argued below?
Marvin E. Pollock: Yes.
Earl Warren: Was that argued here --
Marvin E. Pollock: Yes, it is.
Earl Warren: -- in your brief?
Marvin E. Pollock: Yes, it is.
Potter Stewart: The Court is quite apart from this statute that we're talking about now, is that if the members of a particular religious sect got control of any public school board, they could I suppose voice upon the public school system and -- over which they had jurisdiction in all sorts of religious propaganda in the form of textbooks, if that's your imaginary horrible, and I suppose that could happen –
Marvin E. Pollock: It could happen.
Potter Stewart: -- with or without this statute, right in the public schools.
Marvin E. Pollock: But I think in --
Potter Stewart: They could begin indoctrinating public schools children and these tenants of the Lutheran Church for example if the little three missionaries got control of the particular school board.
Marvin E. Pollock: I think it could well happen. I think what's happened in a good many of the school districts in New York, textbooks are not supplied by the schools. And I think where you have tax funds raised to be spent for books you might have more action in this area if you do at present.
William O. Douglas: I suppose that you're answer to Justice Stewart's question would be that if that happened, if this was a school board, a public school board funneling religious tracks with public money to protect your school, that could be on the constitution.
Marvin E. Pollock: That's correct. The same problem would exist and that would be the one step. I have posed the two step situation, but that would be an infirmity in spending in that instance, too.
Potter Stewart: So that would set the courts out there to judge it as to how much of any religious propaganda that were in any particular textbook?
Marvin E. Pollock: No, I think that would -- we would have to -- we would have to find out what the -- where the public funds are being used.
William O. Douglas: You might suggest we might do a better job with that than we've been doing in the Senate.
Potter Stewart: That would be at least as difficult.
Earl Warren: Does the State Board of Education in New York have anything to do with the textbooks in the various districts?
Marvin E. Pollock: They have a right of oversee generally.
Earl Warren: What was that?
Marvin E. Pollock: They have a right of supervision of all the local board and Boards of Education.
Earl Warren: As to what books are you --
Marvin E. Pollock: I take it that they would decide questions of as to whether a particular book ought to be used or should not be used. They would be the ultimate authority on it I see on that connection.
Earl Warren: They're the ultimate authority. Thanks.
Abe Fortas: I beg your pardon. What is the status of this opinion of the counsel that perhaps to your brief, is that to be considered as a regulation of the Board of --
Marvin E. Pollock: I think it is. I think the counsel is charged with the implementation --
Abe Fortas: What bothers me then is that the statute uses only the term “textbooks”. It does not say “secular textbooks”. That's number one. Number two, the opinion of the counsel as I read it, which it says to be considered as a regulation, and provides that textbook shall be non-sectarian. It just eliminates, it says, denominational editions and those carrying the “imprimatur” or “nihil obstat” of a religious authority. It says non-sectarian and does not say secular and there is a difference, isn't there?
Marvin E. Pollock: Yes, there is.
Abe Fortas: And it's only when you get to the opinion -- majority opinion of the Court of Appeals here so far as I know that you find the qualification on the word “textbooks” meaning that -- as saying secular.
Marvin E. Pollock: That's correct.
Abe Fortas: There's nothing in the statute that I see and there is the possibility of difference in the substance with the opinion of the counsel or regulations to which I have referred.
Marvin E. Pollock: These have the -- these have binding force on the school boards throughout the state, the opinion of counsel, I understand.
Potter Stewart: Well at least--
Marvin E. Pollock: It was issued after the case was argued about it.
Potter Stewart: If there is an inconsistency between the opinion of counsel and the judgment of the New York Court of Appeals, which would prevail as to the construction of this statute?
Marvin E. Pollock: The New York Court of Appeals.
Potter Stewart: That's what I thought.
Marvin E. Pollock: In the Everson case, which was decided by this Court 20 years ago, the Court defined the scope of the establishment clause as coverage. The definition consisted of seven sentences that appears at 330 US 15 and is quoted at page 10 of appellant's brief. One of the sentences reads that no tax in any amount, large or small, can be levied to support any religious activities or institutions whatever they may be called or whatever form they may adopt to teach or practice religion. While four justices in that case disagreed with the application of that definition to the facts of Everson, all of the justices agreed with the definition, and the definition has been repeated and reaffirmed at least three times, once unanimously until a Castle against Watkins in 1961. In applying the Everson definition to the facts of the case, the majority started out by saying that state legislation should not be overturned if it was within the state's constitutional power even though it approached the verge of that power. Said on the one hand New Jersey could not, consistent with the establishment clause, contribute tax funds for the support of any religious institution which teaches the tenants in faiths of any church. Presumably here, it had in mind church schools. On the other hand, New Jersey could not interfere with the free exercise of religion by their citizens such as by excluding believers or non-believers because of their faith or lack of it from the benefits of any welfare legislation. But the issue does pose it remained only for the majority there to determine the nature of the benefit, which was bus transportation, of where and how it was used. And it determined that bus transportation was like certain other government services such as police and fire protection, sewage disposal, streets and highways. The reason that it was no different than these other services the Court suggested was that it was separate and indisputably marked off from the primary function of the school, which was the teaching of religion. In other words, funds, tax funds were not being used by or within the confines of a religious institution in connection with functions associated with religion. Having determined that the funds -- that the benefit was marked off from the religious function, the Court concluded New Jersey did not support religion, although Justice Rutledge agreed to the definition of the scope of the establishment clause, he disagreed with the majority's conclusion that the busing law did not support religion. For him, the primary reason children was sent to a church school was to obtain a religious education. The payment of transportation not only helped them get there and their parents to send them, but it aided them in this objective. And any aid to religion was outlawed and was intended to be outlawed. The dual prohibitions for Justice Rutledge to the first amendment made religion a private matter and it could not be made public by legislation. The question of whether the tax funds or funds were raised for a public purpose was for him a false issue, clouding a real issue of the first amendment span. In summary, Everson said as I read the case that busing or the providing of bus transportation approached the verge of New Jersey's constitutional power but that it was permissible because it was separate and marked off from the religious function of the church school.
Earl Warren: Well are you asking us to take the opinion of Everson or the dissenting opinion Mr. Justice Rutledge that you've just been talking about?
Marvin E. Pollock: I think that the -- if the majority opinion were accepted in Everson, it would require that textbooks -- textbook aids would be prohibited.
Earl Warren: And you stand on the --
Marvin E. Pollock: I would stand on the majority --
Earl Warren: -- in the Everson case?
Marvin E. Pollock: That's correct, Your Honor, I would.
Earl Warren: I wonder if you would mind telling us just what difference on the facts there is between the Everson case and this one.
Marvin E. Pollock: I think in this case, a textbook, unlike bus transportation, is not separate and marked off from the primary function of a church school, which is the teaching of religion. The very opposite is true that transportation takes children to the door of a school but textbook aid spills over to the classroom. A textbook is an integral part of the educational process which takes place in a church school.
Earl Warren: Isn't getting the children there an integral part of it?
Marvin E. Pollock: I do not think so, Your Honor. I do not think it has -- relates at all to the educational process which takes place in the school. And I think that's the difference between giving textbooks and giving bus transportation. Textbooks are an essential element of education.
Earl Warren: What would you say of the health programs that they? Or take -- let's take the school lunch program that they have in the schools. What would you say about that as to whether that is in accord with Everson or not?
Marvin E. Pollock: I would think assuming there was no proselytizing in connection with him -- with these benefits I would say that the benefits were not impermissible because while they might be used in a religious institution, the benefits, they are not used in connection with the teaching of religion, which is the primary function of these schools. They are not connected to the teaching of the tenants of that church which is the primary mission of that school.
Earl Warren: Well then supplying non-religious books, is there any proselytizing --
Marvin E. Pollock: I think there is, Your Honor.
Earl Warren: -- in that act?
Marvin E. Pollock: I think there is, Your Honor.
Earl Warren: What -- to what extent and what effect?
Marvin E. Pollock: A textbook, unlike a reference book or a book in general is not intended to be used by a student alone as a rule. Its contents cannot be fully utilized until subjected to the interpretation and analysis of a teacher. The book is used in a place where the syllabus that teacher, the curriculum and the whole atmosphere is oriented toward a religious objective. The fact that it's secular makes no difference. It makes no difference because if the states supply desks, blackboards, chairs, or other so-called secular items of education, it would still be aiding in the educational process which takes place in the school. These are other items which are directly related to the educational process taking place in the school.
William J. Brennan, Jr.: That would include school lunches?
Marvin E. Pollock: It would not include school lunches.
Earl Warren: What about the health facilities for schools?
Marvin E. Pollock: I do not think it would include health facilities. Again, if the aid is not used in connection with functions associated with religion, it does not necessarily fall -- it would depend I assume on whether -- well, if it doesn't, if it's not used in connection with functions associated with religion, it would not be impermissible.
Thurgood Marshall: Would it be alright to give free eyeglasses so they could read?
Marvin E. Pollock: I think it would be, Your Honor.
Thurgood Marshall: Well, wouldn't it be just as easy to give them the books so they could read with their new eyeglasses?
Marvin E. Pollock: I think one is related to a health matter and I think it is more like health than like a tool in the educational process.
Thurgood Marshall: It's pretty hard to get education if you can't read.
Marvin E. Pollock: I agree with you, Your Honor.
Earl Warren: What about if they did -- how about if they gave hearing aids to the youngsters so they could -- so they could better hear in school?
Marvin E. Pollock: I think --
Earl Warren: Would that be contributing to it because of the idea of religion?
Marvin E. Pollock: I don't think so, Your Honor. I think again that our position has been that certain kinds of benefits which are not directly related to the teaching process which goes on in that school are permissible. These would include some health measures -- I think the in-school dental treatment, in-school medical treatment, those programs are usually not susceptible to the kind of proselytizing that goes on in connection with what goes on in the classroom.
Earl Warren: I suppose you'd make a difference between a posture chair for the children on the one hand and the hearing aid on the other because one chair would have nothing to do with hearing anything or seeing anything or religion -- religious, but the other would.
Marvin E. Pollock: I think if it had to do with the teaching process and forwarded that and it was connected with the teaching process, whatever the item is --
Earl Warren: Well, you use them in schools.
Marvin E. Pollock: The posture chairs --
Earl Warren: They would use them in the school class, of course.
Marvin E. Pollock: I think with the textbooks, we have no problem. I think textbooks are quite different than a chair. And I think again, you can get into many categories. One, you can talk about medical items. You can talk about physical items that is -- such as a posture chair, but I think here, we're talking about one of the three essentials of a school. A school cannot do without pupils, teachers, and textbooks.
Earl Warren: Yes. Without pupils getting to the school.
Marvin E. Pollock: No, it can't do without pupils in the school, Your Honor. I think too, the one thing that's important to observe is that a church school -- that if books are an integral part of the educational process and a church school is a religious institution, then the furnishing of books constituted -- constitutes a use of tax raised funds for the support of religion. I think that textbooks are indeed an integral part of what takes place inside of a church school.
Byron R. White: This record does -- does this record show how secular books are actually used in a parochial school to further the school's religious aims?
Marvin E. Pollock: No, it does not.
Byron R. White: There's no evidence of the record in that?
Marvin E. Pollock: No evidence in the record at all.
Byron R. White: Well, what about an algebra book?
Marvin E. Pollock: I think I --
Byron R. White: Or a geometry book, is that -- is that book when it's being used by a teacher in a parochial school so intimately related to teaching religion?
Marvin E. Pollock: I think it is, Your Honor. I think that the -- the basic purpose of a church school --
Byron R. White: You have to sustain this. I mean, this is hard -- this is your toughest case isn't it? Geometry book or --
Marvin E. Pollock: I don't know that it is. I -- I think it's less -- less tough that idea of giving a religious missile --
Byron R. White: Tell me about that book as to how it furthers the religious aim of the school.
Marvin E. Pollock: Well, I think the religious -- as I understand it, the basic purpose of a church school is to teach religion. For example, in Justice Jackson's dissenting opinion in Everson, he referred --
Byron R. White: Let's accept that for the moment. Now, tell me --
Marvin E. Pollock: Are we going to accept the moment that a church school is a religious institution and that it's dedicated to furthering only religious objectives? Because if we accept that I think, Your Honor, I think that the textbooks cannot be given to a church school.
Byron R. White: Nor anything else.
Marvin E. Pollock: Nor anything else --
Byron R. White: Alright.
Marvin E. Pollock: -- that's related to the educational process of the school. That's all we're asking here.
Earl Warren: Where do you -- we have read that it furthers only religion, is that what you said?
Marvin E. Pollock: As I understand it, the basic purpose of a school, of a religious school is the teaching of the tenants and faith of the church in all courses and in everything. And I think that any educational aid that's given to them is used to further that mission.
Thurgood Marshall: What authority do you have in that state?
Marvin E. Pollock: I think -- as I understand it, no one has denied that a church school is a religious institution, that it's --
Thurgood Marshall: Is it true that they have people of other faiths in there?
Marvin E. Pollock: I understand that there are -- there are people of other faiths sometimes in a --
Thurgood Marshall: And they survived.
Marvin E. Pollock: I understand they do survive.
Byron R. White: So you think --
Thurgood Marshall: But you say that the only thing they teach is religion.
Marvin E. Pollock: I think that the orientation in these schools -- the basic --
Thurgood Marshall: Didn't you say the only thing they teach is religion?
Marvin E. Pollock: Not a course called religion but I think that the concepts of the --
Thurgood Marshall: When they were examined by the state board, aren't they required to maintain the same amount of teaching as the public school had maintained?
Marvin E. Pollock: I don't know that they're required to maintain. They are required to meet, as I understand it, certain minimum standards. I don't know the amount of oversee and supervision in this connection, so I can't say. They are required to meet certain minimum requirements, but they can do so. As I understand it, the law is liberally applied to permit them to do so.
Thurgood Marshall: But I'm getting trouble with this as you understand it. You are charging that the parochial schools exist solely for the purpose of teaching religion.
Marvin E. Pollock: I think primarily they do.
Byron R. White: Well, the statute then I would suppose is that you would suggest it's just unconstitutional on its face. Now, are we getting to any questions of whether the books are secular or not or who approves them or anything else?
Marvin E. Pollock: That's correct.
Byron R. White: That the state's detestation that the goal is lost to -- to further a secular goal of education. It's just false. It should not be accepted at all.
Marvin E. Pollock: I think that the effect of the law is to (a) that the teaching process which goes on in this school, and I think that the principal teaching process is the teaching of religion. I do not think -- I think that religion permeates at a religious school and everything that's taught there.
Byron R. White: Including geometry?
Marvin E. Pollock: Including geometry, and --
Byron R. White: You don't have any --
Marvin E. Pollock: I think that if you -- the kind is for example, with respect to --
Byron R. White: What are we supposed to do, take the judicial notice of that or?
Marvin E. Pollock: I think so. I don't know whether this Court has taken judicial notice. I think the courts thus far have. I think for example, the kind of law the church -- relating to church schools for the Catholic church will, one example, provide -- which I understand --
Byron R. White: Well, in your position -- and we would have to first -- the predicate for your argument is that this is -- that these are religious schools.
Marvin E. Pollock: Religious institution, that's correct.
Byron R. White: And that if -- I suppose some schools could be less related to a sect vis-à-vis.
Marvin E. Pollock: I don't know. I would not -- I would say that any school chartered as a religious school would fall within the ban.
Byron R. White: Chartered as a religious school?
Marvin E. Pollock: That's correct. I think there are special laws that cover these. I think that any -- I think it's clear where a school is connected with a sect and there may be some cases where it might be difficult to determine whether there is some formal sect in action. But I think in most cases, it isn't, that it's clear that this school is operated as a part of the church.
Byron R. White: Well then why would you say that if a religious school was furnishing free lunches and the state suddenly came along and furnished the free lunches for the children in this religious school, why wouldn't that be bad? Because they're certainly aide to the school and the school is totally a religious institution.
Marvin E. Pollock: Because I would say that does not further the education -- that's not connected with the educational process of the school and I'd say that that is the difference but it does in further religion.
Byron R. White: What do you mean, if not connected with the functions which aide religion.
Marvin E. Pollock: That is correct. And I would say functions that aide religion teaching out --
Byron R. White: And you think the Algebra class is a functionating religion although the lunch would --
Marvin E. Pollock: Yes I do.
Earl Warren: Do you make any distinction between the elementary schools and the higher education?
Marvin E. Pollock: No Your Honor.
Earl Warren: Collegiate education.
Marvin E. Pollock: No Your Honor. This statute applies to -- as I understand it to junior high school students alone -- so of course -- this would cover children in 12-year-old to 16-year-old.
Earl Warren: How can you distinguish the exemption, tax exemptions from the thing of this kind?
Marvin E. Pollock: I can't Your Honor. I think that the tax exemptions is something that had been imbedded in our history and perhaps due to lack of taxpayer standing or litigants in some cases, they haven't been raised in other cases of -- they have existed and I don't distinguish. I think it would be difficult except of course an exemption is not a direct grant of money, so negative, yes.
Earl Warren: So if you are to prevail, you believe that we would also be required to take away the exemption of all church taxation, all church school taxation.
Marvin E. Pollock: No, I don't Your Honor. I think you could limit yourself in this case by giving of textbooks.
Earl Warren: Well, I'm speaking about your principle. I ask you what you believed and you said, you believe that if you were right here that they had -- or not entitle to any taxation or any exemption of taxation, now, that being true wouldn't the principle apply there?
Marvin E. Pollock: Your Honor, I haven't gone. I haven't explored the question of tax exemption in this case. It's not been an issue and I don't pretend to be an authority on it. The -- what we're asserting here is that textbooks which are given for use in a church school violate the constitution.
William J. Brennan, Jr.: On that theory, would the action of the zoning board in zoning an area to permit building of a practical school be an aid to establish into it?
Marvin E. Pollock: In this case -- I would argue only in this case. The issue here is whether a textbook should be given to parochial schools.
William J. Brennan, Jr.: But I suppose we have --
Marvin E. Pollock: The definition --
William J. Brennan, Jr.: I suppose we have to consider doubling the -- were you principle if we agreed with you to carry us.
Marvin E. Pollock: The principle could be I think narrowly drawn if necessary in this case to outlaw textbooks only.
Earl Warren: How narrowly could we draw so as to take your position on textbooks and not interfere with anything else? Will you give us the formula that we could use?
Marvin E. Pollock: I suggest that the rule that the text -- that giving of textbooks for use in church schools violates the establishment clause of the First Amendment on a ground that it constitutes a use of tax funds for the support of religion. Now, that is the rule I'm suggesting that this Court adopt.
Potter Stewart: That is part of the very educational classroom process --
Marvin E. Pollock: That's correct.
Potter Stewart: -- that you're distinguished -- you could distinguish that from this other kind of situations on that basis, couldn't you?
Marvin E. Pollock: That's correct. I have reserved ten minutes for rebuttal.
Earl Warren: You may.
Thurgood Marshall: How about scientific equipment for laboratory?
Marvin E. Pollock: Although that's not involved in this case, I would say that if it were given for use in connection with the teaching functions in the school, the further the mission of the school, teaching the tenants in the face of its religion, it would not be permitted.
Thurgood Marshall: That would go for the blackboard school too?
Marvin E. Pollock: Yes Your Honor that would go for blackboard--
Thurgood Marshall: Anything.
Marvin E. Pollock: That's correct Your Honor to church schools.
Earl Warren: Mrs. Coon.
Jean M. Coon: Mr. Chief Justice and may it please the Court. Initially, I think what I would like to do is to give some observations to some of the questions of this Court which were directed to Mr. Pollock. As to the issue of standing to sue being raised in this Court, no one has raised it. We have considered that the issue withstanding to sue was one of State law. It relates to the peculiar problems and provision of State law and the interpretation which the State Courts have placed upon standing to sue and that the decision by the New York Court of Appeals that under these particular circumstances, the East Greenbush and School Board had standing to sue that it was foreclosed from consideration in this Court.
Earl Warren: I thought I did see your motion of James E. Allen, Jr. to dismiss one of jurisdiction.
Jean M. Coon: It's for one of jurisdiction based upon what we felt were prior decisions of this Court which involved not a question -- it was not a question of standing the sue it involved the merits of the sue itself.
Earl Warren: One that involved the merits?
Jean M. Coon: Yes sir.
William J. Brennan, Jr.: How do you reconcile the agreements?
Jean M. Coon: Pardon me.
William J. Brennan, Jr.: How do you reconcile the proposition with the state of the agreements of standing as foreclosing this Court by reason --
Jean M. Coon: The standing to sue which was raised was standing to sue under state law and now a question of the general right of a taxpayer as may have it raised in this Court.
William J. Brennan, Jr.: No, but it wasn't the (Inaudible) that questions standing the sue in New Jersey which New Jersey sustained what this Court said. That's a problem here that federal question.
Jean M. Coon: Yes but I think that it has been considered I think by all the parties in this case if this was --
William J. Brennan, Jr.: Well, I don't suppose -- I don't suppose what the parties considered if the standing question is considered -- that the parties don't want us to consider which --
Jean M. Coon: Certainly, if this Court were, itself, to consider that standing to sue is a problem of this Court, you certainly decide it on that basis. But the issue that was raised --
William J. Brennan, Jr.: That's what happened in -- wasn't it?
Jean M. Coon: Yes, I believe it was.
Earl Warren: I'm just wondering. In the statement of the case here in the jurisdiction -- statement as to jurisdiction, it's contended that these people were in a dilemma and that they were obliged either to obey the New York law or be subject to sanctions and that's what got them into and still they have the duty to take care of the children now. Your Court of Appeals held that they were no longer in a dilemma. They held that the Act was constitutional and how was that give them standing here?
Jean M. Coon: Well, I would assume that the initial problem which raised their -- which started the sanction was that the members of the Board themselves, felt that the law was unconstitutional both under the state and Federal Constitutions. And that while the New York Court of Appeals as the final arbiter to the state constitution provisions that they will still consider that there is a question and a dilemma raised for them under the Federal Constitution that if they still believe that the Court of Appeals was an error as to the Federal Constitutional question then and until they got a decision on the merits from this Court, they would still be faced with their own personal dilemma of either refusing to bail a law which they consider it to be unconstitutional federally or face the sanctions of the Education law.
Earl Warren: But the fact is that they state in their statement of jurisdiction that they are in a legal dilemma that they cannot act without subjecting themselves to some kind of sanctions and the New York Court of Appeals has held that they are -- they can be subject to no sanction for the simple reason that the law in which they are obliged to act under the Court of Appeals order is constitutional. So doesn't that quite bother the premise upon which they come to this Court?
Jean M. Coon: But certainly wipe out the premise if they were contending to accept the decision.
Earl Warren: I beg your pardon.
Jean M. Coon: They would wipe out that premise if they are willing to accept the decision of the New York Court of Appeals on the issue of constitutionality which apparently they are not since they are here.
Earl Warren: But certainly, they don't expect us to say that the New York statute is unconstitutional according to New York Constitution do they?
Jean M. Coon: No sir but they were hoping that you will say it's unconstitutional in the Federal Constitution and since they as public officials in New York not only to uphold the statement but also the Federal Constitution. That would be if they would have an issue in there. As to the questions to who designates these books. Mr. Justice Fortas question was one that somewhat a surprise to us because I don't think anyone in New York has ever assume that anyone -- other than the public school officials and public school boards for the final -- once we have the control over the designation of the books. The terms --
William J. Brennan, Jr.: But you don't suggest that the books that are maybe designated are books that are actually used in the public school.
Jean M. Coon: No sir.
William J. Brennan, Jr.: They maybe any kind of a book as long as the public authority will approve them.
Jean M. Coon: That is true.
William J. Brennan, Jr.: And except that they must be secular?
Jean M. Coon: No, a secular text.
William J. Brennan, Jr.: You mean that's what the court says?
Jean M. Coon: That's what the court said and I think this is what the statute had in mind because when the -- when the statute said --
William J. Brennan, Jr.: This is what the Attorney General said?
Jean M. Coon: Yes sir.
Abe Fortas: The Attorney General said nonsectarian that's different isn't.
Jean M. Coon: I suppose it is but I think we were -- this is not what we were --
Abe Fortas: Well, it's an important --
Jean M. Coon: Yes, I think that the Attorney General has said not sectarian in this --
Abe Fortas: And he's made it clear by that parenthetical remark in 6(a) of his ruling that he's talking about in anyway, when he says nonsectarian, he means nonsectarian and not secular.
Jean M. Coon: Oh sir. I'm sorry Mr. Justice Fortas that I do not know you're referring to that. The opinion of the counsel of the education department is not an opinion of the Attorney General.
Abe Fortas: Well, what is a rule? What's the status of this?
Jean M. Coon: Well, the status of this is, is that as an opinion actually from our office, it's an advisory opinion only.
Abe Fortas: Well your adversary said that he didn't spend that this was binding but correct me if I'm mistaken.
Jean M. Coon: I think that the counsel –-
Abe Fortas: You think it's not?
Jean M. Coon: -- no, the counsel of the education department like the New York Attorney General would like very much to have his opinions binding but they are entered in an advisory capacity only. The only authority that an opinion of the counsel to the education department has is that it maybe supposed to represent the policy of the education department and the commissioner and therefore in a proceeding before the commissioner to appeal from a determination of a local school board.
Abe Fortas: Where are the regulations of the board of region stand that are referred to in the statute? The statute says that such textbooks are to be loan free to such children such rules and regulations that fare maybe prescribed by the Board of Regents and such Board of Education trustees or other school authorities. Now where the regulation -- or the Board of Regents is this is not --
Jean M. Coon: As far as I know, the opinion of the counsel -- it's the only thing approaching a rule of regulations --
Abe Fortas: No ma'am, but I want to know what the opinion of the counsel is why it's here. Is this to be considered to be the regulations of the Board of Regents prescribed by the expressed language of the statute or is it not -- there would be an answer to that?
Jean M. Coon: This is not as far as I know that adopted as the rule and regulation of the board. The counsel of the education department is of course also accounts into the Board of Regents.
Abe Fortas: And you say there are no regulations prescribed by the Board of Regents despite the language of the statute.
Jean M. Coon: No. I believe that the language of course also refers to regulation to be adopted by local school boards and I think it has been left to the local school boards within the framework of the advisory opinion of the education department.
Abe Fortas: The statute used the word end here. It's something of a miss. Now, is there anywhere that we can get access on the official source of which we can take notice to a list of the books that have actually been approved or whatever it may be. It's not in this record.
Jean M. Coon: No sir. As far as I know, there is no compilation of these texts. They are determined by individual school boards. Each public school board in the state has the authority to designate the textbooks to be used in that particular school district to public school district and they also, under the statute, approved upon request of the individual students to request additional textbooks which are not authorized -- already designated for use in public schools but may also request that time an additional book which the board may approve or may not approve as it see is fit.
Abe Fortas: Well, let me get clear about this. I'm sorry to take time on this but we have one kind of case here if this statute means in his reply so exclusively with respect to secular books. By that, I mean secular books. I don't mean nonsectarian books. We have another kind of case in my judgment if the statute is used to public funds to purchase either religious books or sectarian -- in the sectarian sense or in a nonsectarian sense but it's still religious books. I think we've got the quite different considerations that apply in those two instances. And so far as I am concerned here as I said here, in the absence of any regulations by the Board of Regents, the situation is far from clear and now, as I understand you, you're telling me that the actual approval of these books is by the local boards of education public bodies, is that right?
Jean M. Coon: Yes sir.
Abe Fortas: And that -- does that ever go to the Central Board of Regents?
Jean M. Coon: It would only go to the Board of Regents or particularly to the Commissioner of Education if a local taxpayer in one of the school districts disputed a termination of the local school board, possibly someone who objected to a book which they felt was sectarian or religious and nonsectarian sense.
Abe Fortas: Right. And now --
Jean M. Coon: They can appeal to the commissioner --
Abe Fortas: Now, you're also telling us though that there no directions to the boards of education that within a broad word of the statute which regarding with textbooks. There has been no instruction of the Board of Education of this various communities that the word textbook in the statute means only secular textbooks.
Jean M. Coon: No sir except from the framework of this opinion which has been given.
Abe Fortas: Well, this opinion was handed down that the statute has been an operation whatever that opinion means.
Jean M. Coon: No sir. It was handed down after the original argument of this case in Supreme Court Albany County but not after the statute went into operation.
Abe Fortas: I see.
Jean M. Coon: This was an advice to the school districts on how they were to go about purchasing the textbooks, what book are to be involved and how also you will see in there the process for processing the reimbursement provisions.
Abe Fortas: And you're also telling us in any child -- any school of the child if he decides that he wants such and such a book, is that right?
Jean M. Coon: Yes sir.
Abe Fortas: It can apply to the Board of Education?
Jean M. Coon: He may if it is a textbook which he is required to use in a school. He can't decide that some book he seen in the library would make a good book and bring to him at home and apply for that one.
Abe Fortas: I see.
Jean M. Coon: But I think that it should be made clear that the distinction here is between these textbooks are by law required to be provided to the students and not to the schools they attend. And that it is the individual request of the student which is involved here.
Abe Fortas: Can you say that there's no way at all for us to have access to a list that shows whether in fact the word textbook in the statute has been construed in its broad sense in which without qualification, it's used in the statute in the sense of nonsectarian as used in the opinion of counsel to the Department of Education or in the still narrow sense of secular as used in the majority opinion of the Court of Appeals.
Jean M. Coon: I could inquire of the education any problem where there has been any further implementation since the decision of the Court of Appeals which refers to secular. As far as I know, there has not and as far as I also -- as far as I know that there have not been any list of what textbooks are involved. But I can inquire of the department to find out if they have any list but I don' believe that they have.
Abe Fortas: Is there any implementation of 704, I think it is that says it can have subversive textbooks? Is there any regulation or anything of the sort of the Board of Regents?
Jean M. Coon: I don't know whether there has been any list promulgated of any textbooks which they consider subversive or not. I think the question usually arises in relation to a request to the counsel of the education department or an opinion to whether or not a particular textbook is permissible in use or may arise an issue of a taxpayer bringing a proceeding an appeal to the commissioner from a determination of a school board to use a text which they would consider to be subversive.
Hugo L. Black: What agency in New York has supreme authority in finding the cause to determine what textbooks will be used by the student?
Jean M. Coon: The Commissioner of Education.
Hugo L. Black: What about the regents?
Jean M. Coon: Well, the regents of course, the Commissioner of Education. Some of the regions could adapt regulations also with the general authority -- administrative authority over the administration of the education law is in the Commissioner of Education.
Hugo L. Black: But what about the Board of Regents?
Jean M. Coon: As supervised by the Board of Regents -- the Board of Regents is a general policy making organization. I don't think they -- as a rule, do not get down to the individual question.
Hugo L. Black: Do they not have authority over the books even in going to libraries as well as the schools?
Jean M. Coon: Oh yes sir, they would have that.
Hugo L. Black: What?
Jean M. Coon: They would have authority.
Hugo L. Black: That's the Board of Regents?
Jean M. Coon: Board of Regents, yes sir.
Hugo L. Black: And that's what they have about the school books in there.
Jean M. Coon: Yes sir.
Earl Warren: I asked Mr. Pollock if this act should be able to interpret to say that the school board in Buffalo, New York could furnish school children in the City of New York. The books that they chose rather than the books that were chosen by the -- and approved by the school board of New York and they said, yes. Do you subscribe to that?
Jean M. Coon: I would say as far as students who are enrolled in the private schools in New York City as distinguished in public schools that they could request a textbook which might be used in the public schools or approved by the public school board of the City of Buffalo but has not been approved or designated for use in the public schools in New York City and be entitled to receive it under this law.
Earl Warren: Who would have to give -- who would have to loan them the books?
Jean M. Coon: The New York City School Board under those circumstances.
Earl Warren: And they have to buy them or get them from Buffalo.
Jean M. Coon: Well, from the same publisher, the Buffalo buys it from. I don't know to what extent there is uniformity throughout the state in textbooks that are used in the public schools.
Speaker: Do you know the number of books that have been distributed?
Jean M. Coon: No sir.
Speaker: Do you know the total of book agents, the total books involved?
Jean M. Coon: I believe it's something on the line of what, $13 million or $14 million I think since --
Louis J. Lefkowitz: In last year was about $19 million figures in our brief.
Speaker: In one year.
Jean M. Coon: No. I think that's the total that is total since they program one into effect.
Potter Stewart: The statutory of limitation is so much dollar in how many dollars for pupil I think then?
Jean M. Coon: It works this way. For the first three years of the statute, the local school board was limited to a requirement that it spend $15.00 per pupil -- not more than $15.00 per pupil and it was entitled to total reimbursement from the state in that amount. The school boards also had the option to provided additional textbooks. Above and beyond is $15.00 limit on which they are reimbursed upon a reimbursement formula which involves total school expenditures related to the tax rolls of the district and so forth which amounts to something less than total reimbursement. In some districts, it amounts to something less than 50% of their school cost and others that maybe as high as 75% to 98% depending upon the economic status of the district itself. The total gives me the figures on total textbook expenditures in 1966, ‘67 for the state was nineteen million and tow hundred and thirteen thousand dollars and this is the total expenditure so far of the product and it was of course initially considered that the initial expenditures in the first few year would be highest because of the fact of the new statute --
Speaker: Those books were to be returned to some stage by the child?
Jean M. Coon: The child must return either to the public school district or to a designated point of storage for them at the end of each semester of each school year.
Earl Warren: We'll recess.
Jean M. Coon: Please the Court. I would like to devote the remaining time to hitting some of the highlights or what we believe are the important things for this Court to consider and to bear in mind to decide in this case. First of all, it is the problem with which New York State was faced and is facing in the time when we adopted the statute. There is an educational crisis developing not just in New York but in this country as a whole and it has developed to the point where not only the local government but also the State and the Federal Government are pouring immense amounts of money into the school systems primarily to help the educationally disadvantaged. The private schools children who are involved in this case are not simply children or parents who can afford to send them to tuition paying schools. There are among them also the educationally disadvantaged. And in this particular instance, New York in deciding that it was important that students in the schools -- the school children of the state have available to them up-to-date textbooks, consider the question of not only to provide them but to whom.
Potter Stewart: Mrs. Coon, one thing that's not entirely clear to me is this. What was the situation before the enactment of this law in 1965? This law as I read it, provides for the furnishing of textbooks to students in both as it says in public or private schools which comply with the Compulsory Education law. Prior to the enactment of this law, were textbooks furnished to students in public schools?
Jean M. Coon: In some cases, yes. Prior to the enactment --
Potter Stewart: It was local option wasn't it?
Jean M. Coon: It's local option.
Potter Stewart: I remember that.
Jean M. Coon: They had three options to purchase the textbooks and then rent them to the students, to sell them to the students, to require students to purchase their own textbooks or if the voters of the school district approved, the school district could provide free textbooks.
Potter Stewart: Now this law is applicable by its terms to both public and private schools and requires now the school boards --
Jean M. Coon: And requires them to do so.
Potter Stewart: All over the state.
Jean M. Coon: It should be --
William J. Brennan, Jr.: And before the law of either was for free textbooks, the rule has any exception?
Jean M. Coon: Before the law, there were free textbooks in some cases and not all.
William J. Brennan, Jr.: Well I mean I understood you say not at all but in most, were they?
Jean M. Coon: I would say in most, they probably were.
William J. Brennan, Jr.: New York City they were.
Jean M. Coon: In New York City they were. Although we point out in our brief, we list 12 of the school districts which range from small rural school districts to those involving cities as large as the City of Syracuse in which free textbooks were not provided prior to this time and in many of those districts. There were areas especially in the new -- area where there have been large packets of unemployment -- large unemployment problems. The Syracuse area which has been subjected to considerable in flow of migrants from not only from the south but also from mining areas in Pennsylvania in the appellation area.
Potter Stewart: And those school districts, books were not provided even in the public school.
Jean M. Coon: They were not provided and even in public schools.
Byron R. White: But there was authority in the state law to provide school books in public schools for Alston?
Jean M. Coon: There was if the voters of the district would approve and this was one in which the school board itself have no control. This was one solely within the control of the voters in the district.
Earl Warren: I suppose I should know by now but I like to ask you this question again. Under this Act, would a religious school have the right to prescribe its own textbooks as long as they were not religious in character according to their appraisal and submit them to the -- those textbooks to the board and then could the board spend public moneys to loan those books to the parochial school children.
Jean M. Coon: Let me put it this way. That certainly -- any of the school, the parochial school could tell any students what textbooks it wanted them to get. In other words, for this particular course, you're going to want X textbook. And the school child then can fill in a form which he request this of a public school district. Now, the public school district then has two options. One, if this is a book which has been designated for use –
Earl Warren: If it is what?
Jean M. Coon: Designated for use in the public schools by the public school board and then there's no problem about the student getting the book. If it is not then the public school district, the Board of Education district has under this law the option to approve or not to approve that book.
Earl Warren: Yes but they could approve --
Jean M. Coon: But they could approve it and then --
Earl Warren: The entire textbook system of the broken schools in that way.
Jean M. Coon: They could in those courses which would be not religion course. It's not teaching religion.
Earl Warren: I beg your pardon.
Jean M. Coon: In those courses which did not teach religion, yes.
Earl Warren: Yes.
Jean M. Coon: Assuming also this would be only for Grade 7 through 12, in other words junior and senior high schools.
William J. Brennan, Jr.: Well, do you mean they could approve only books which came within the statutory definition?
Jean M. Coon: Yes sir.
William J. Brennan, Jr.: And the statutory definition is?
Jean M. Coon: Our statutory definition is while the statutory definition if you take the preamble of the statute, it refers to nonsectarian textbooks but I think this has been interpreted in the Court of Appeals has interpreted all of these to require secular textbooks in that regard. So that to the extent that over a course of time, it's been highly possible that within the range of a statute be -- with the exception of courses teaching religion that the parochial school children could get all of their textbooks in Grade 7 through 12.
Byron R. White: Suppose your argument would also -- I suppose you would say that an educational allowance or a book allowance in cash to all students in the state would be alright.
Jean M. Coon: That maybe. What raises problems is of course is to what they would use these books for.
Byron R. White: You would take that educational allowance by having some question of the child was free to buy a religious book with a big amount.
Jean M. Coon: It might have some problem else, along the same lines of course is the question of a tuition allowance which was raised in Vermont I believe which the students were -- people are using this to attend the religious schools.
Byron R. White: You would suggest the G.I. Bill then may have some question about?
Jean M. Coon: That if this is -- if this we're going to go in that matter. Now, of course one of the things with G.I. Bill the same thing with New York scholar and set a program, these are open to all students unlike without regard to where they go. The same situation here, the textbooks are available to all children regardless of the school they attend and in that regard, it is not a -- it is a law which does not discriminate between the religion and not religion between the sectarian and nonsectarian schools. It is neutral as between -- not only as between religions but it is between religion and non-religion. How we think to that extent, it means to test them and lay down by this Court in cases like Everson and some of the others. And also of course is I would bring out the secular purpose of providing this means of educating a child, excess of the child through education material in the sense of a textbook. To children regardless of their -- the school they attend that this is a purpose within -- what was in the Sunday closing cases for example is a purpose which is secular in origin and it is a primary purpose of aide to the school child in this particular case of helping him to get a better secular education and not an education sectarian or religious subjects but in those subjects which he needs to enjoy and to further his competitive advantage economically as he gets older and gets out of school. The problem has been pointed out and we've pointed out in our brief. The problem of a child from an economically disadvantage family with several children in school and maybe required to spend $15.00 to $20.00 per child in purchasing textbook but they don't have a their set money for their necessities of life. They certainly don't have the money to spend on textbook and this maybe a cause of a child dropping out of school.
Abe Fortas: Mrs. Coon, you mentioned the preamble to the statute as referring to nonsectarian textbooks.
Jean M. Coon: Refers to nonsectarian subjects in schools.
Abe Fortas: Where is that?
Jean M. Coon: It's quoted on page 20 of our brief at one point anyway. And it refers to the -- the term by the correcting of education on balances which have read to an insufficient portion of our population educating the field of science, mathematics, foreign language and other nonsectarian subjects.
Abe Fortas: Well, the term is a very -- that term is not very direct description of the kind of textbooks embraced in the statute. All it says is that it's a recital that the calls on educational opportunity have led to an insufficient proportion of our population educated in nonsectarian subject and then there's no reference to whatever.
Jean M. Coon: Now, I think this is -- we have to read the preamble in line with what has been -- what was said in the statute itself about the approval of the books and so forth and this has been interpreted.
Abe Fortas: I don't see anything in the statute that --
Jean M. Coon: Well, the statute talks --
Abe Fortas: And I appreciate you showing it to me.
Jean M. Coon: Well, the statute refers to textbooks. It's cited at page -- let's see, 1(a) of the appellant's brief.
Abe Fortas: It refers to textbooks and it doesn't say whether they're to be restricted by nonsectarian or secular so far as this statute is concerned, why does -- why is the language brought in that include sectarian or religious books.
Jean M. Coon: I would say this Justice Fortas that if in a relation here that the use of the words here textbooks which are designated for use in any public elementary or secondary schools of the state are approve by any boards of education trustees or the school authorities, meaning public school authorities that this has been interpreted by the administrative agencies in the state of New York and -- New York Court of Appeals, to mean only secular textbooks, in other words, nonreligious textbooks. I think on this basis, I think will leave the rest of the area to Mr. Chandler.
Porter R. Chandler: May it please the Court.
Earl Warren: Mr. Chandler.
Porter R. Chandler: Picking up for a moment what Mrs. Coon has just said, the question that Mr. Justice Fortas has been concerned about. The statute does not say specifically what kind of books they are to be but the statute has been conclusively construed by the Court of Appeals of New York as requiring secular textbooks and that interpretation arises out of the long history of New York under which public schools are not supposed to teach religion and are supposed to confine themselves to secular education. I must remind the Court also that this case comes here on an attack on the whole statute without regard to its administration, without regard to particular books, the position of opposing counsel is quite flat that this statute is bad on its face. It is so bad that no amount of good administration could make it better or save it. It is so bad that no amount of maladministration could make it worse and there is no distinction raised between this book and that book in our friend's complaint. The attack is on all books and the secular definition comes out of the long experience of New York which is taken for granted that the public schools should not teach religion and should not buy religious books.
Abe Fortas: That long experience has been with respect to public education and not parochial.
Porter R. Chandler: That's right but the theme of this law is that the book that are to be provided are books uphold by public school authorities on the same standard that the public schools have been using for a long time. Take the illustration that one of the other judges may have mentioned a particular school district, let us suppose somewhere, goes crazy and decides they want to put a course of religion. In the public schools and take a district where there is no private school in the area. The public school district decides, we will have religious courses in the public schools and they start ordering religious books. That immediate result would be that any taxpayer in the district could stop it by a court proceeding. If you didn't like a court proceeding, you could stop it by an appeal to the Commissioner of Education and the Commissioner of Education has very broad powers of the school districts. He has not hesitated to use them in the field of religion. Let me give you a couple of instances. The Commissioner of Education of New York on his own authority banned the on premises release time, religious education before this Court ever had the McCollum case following Engel versus Vitale, the Commissioner of Education took very strong action on so called religious practices. He even forbid the use in the public schools of the last stanza of the Stars Spangled Banner when it was being sang under circumstances that gave it a religious rather than a patriotic connotation so that the idea that a particular school district is to act as a rubber stamp for parochial school and order all kinds of religious textbooks is an idea -- a divorce from reality and divorce from the practicality of the situation that any such action would be amount claim a piece of maladministration under the Act and it would be very instantly crack down upon by the Commissioner or by the New York courts.
Byron R. White: But even if it weren't I suppose that even if the statute were sustained that specific practice could be attack in the constitution.
Porter R. Chandler: Yes.
Byron R. White: Is it clear in this record that parochial schools involved here were not previously furnishing the textbook?
Porter R. Chandler: Yeah, I'm glad Your Honor asked that question. I represent the group of parents in this district. There are joint intervening affidavit which is in the record that states without contradiction that each of these parents was paying out of his own pocket for the textbooks that were used in the school where this child is attending.
Byron R. White: But the law covers -- the law would permit this furnishing of textbooks --
Porter R. Chandler: Yes.
Byron R. White: And even toward those parochial schools which were themselves buy the textbooks and --
Porter R. Chandler: There's no evidence or claim that that happens anywhere in the state.
Byron R. White: What if it did? You wouldn't --
Porter R. Chandler: I don't think it would -- I think it would be a matter of -- well, first of speculations of facts not shown on this record and I suppose that if a public school -- I would say that if a public school, a parochial school had been furnishing textbooks to children that the children in that school would still be covered by this law and would be entitled to get it. I am --
Byron R. White: You would say that it was wholly valid.
Porter R. Chandler: I would say it was valid but I add that in this particular case and as far as we know towards the general practice throughout the state has been that the parent individually pays the bill for the textbooks. It's un-contradicted on this record that that is the situation. Now, questions asked earlier in the argument, I think had been laid at rest, the language of the statute about other approval by other school authorities. I emphasize that school authorities is a word of art. It has been specifically defined in Section 2 of the Education law which covers all succeeding sections. May I have that Section? I'll read it again. The term school authorities means the trustees or a Board of Education or corresponding officers whether one or more and by whatever name known of a city school district or other school district, however, created plainly a reference to public authorities and the reason they have that catchall phrase is because in New York, we have a number of school districts with a vastly varying terminology. We have urban school districts, we have rural school districts, we have united school districts, we have common school districts, we have high school districts and a whole series of districts with various names and this catchall phrase refers to authorities of a school district however created. We have special situations for example a reform school. In a reform school, the superintendent of the school is vested by law with the powers of the local Board of Education. He is the Board of Education for a reform school, the same thing with other school for handicapped and so on. The terminology in New York is greatly confused --
Byron R. White: Is the entire area of New York covered by at least one school district?
Porter R. Chandler: Yes it is. I think yes it is.
Byron R. White: Is there a school district covering it --
Porter R. Chandler: There's a school district with widely varying terminology covering the entire state, yes. There are school district, there's not one -- all districts under the supervision of the Board of Regents. Sorry, I mislaid one piece of notes. Now, as to the question -- as to the list of books as Mrs. Coon pointed out the basic fact to New York State is that there is not a statewide approved list. The list of books depends upon the particular district. Perhaps, the most all embracing one is the official list that has been got out by the City of New York that's referred to in our brief and some illustrations are given and it would be of any concern or interest to the court. I can have copies of the New York list furnished. That is a very widespread --
Byron R. White: Do you know what percent of the books on that list are actually used in the public schools?
Porter R. Chandler: No sir, I don't.
Byron R. White: The small percent of schools.
Porter R. Chandler: Your Honor, this is the public school list -- what percentage. This is the list of books prescribed by the New York public school board for use in the public schools -- for use in the public schools of New York.
Byron R. White: So this doesn't include the least that they approve for parochial schools with the public school list.
Porter R. Chandler: The parochial schools I think in almost every instance withdraw from that list unless there were some very special reason. Now, the reason, among the reasons by the way for --
Byron R. White: Well, these are books that are approved for use in public schools, but maybe not that any of them were used.
Porter R. Chandler: This is the list from which any local school board of New York can order and from which by the same token, any local parochial schools stood in order and it will be approved automatically without checking to see whether the book is on the list and a mention is made at page --
Earl Warren: To what extent can they add books in that list for parochial schools?
Porter R. Chandler: If the list. If the book -- there is no special parochial school list that the parochial school felt that it wanted some books that might not be on that list. It could ask for them. The local school board would then decide whether to approve it or not and the local school board would have as one major guideline is the book a secular book or does it have any religious training in it. Illustrations of why a local school board books might not be required -- might not precisely fit on parochial school with this. Let's suppose the only local public high school in the district has classes in French but not in German. The parochial high school would like to get German textbooks. The next school district up the line where the public high school does teach German will have German books. What would be more natural or easier than for the public school book -- private school pupils to say that we like the German books that are used up to the line, you haven't got any available here. The obligation to furnish the books is on the -- another reason. The obligation to furnish books is on the district in which the child resides not on the district where he goes to school. That is illustrated in the cases of my client's children. They leave in East Greenbush. There is no catholic high school in East Greenbush. Those are my clients children and there are a couple of them who are going to catholic high schools, consequently, have to go to the next district which maybe either across the river to Albany or to the town of Rensselaer and they go -- they will want high school books corresponding to the ones that are used in the public schools in Albany and Rensselaer, the districts which they attend school which is not necessarily the same district in which they reside and there's the district in which they reside that has the obligation to furnishing the books. The approval of other school authorities by the way, I advice one reason why I've got into that statute in the term of what it did was that the draftsman of the New York statute wanted to conform the language to the contemporaneously enacted federal Elementary and Secondary Education Act which presents problems quite analogous to this and Your Honors will find them that rather the luminous pile of briefs before you, a brief fro the Solicitor General of the United States dealing with this case and its relation to some extent with Title II of the Federal Act which also provides textbook of service for children in all schools.
Earl Warren: Suppose that the religious school said, you don't teach German in the schools in this district, we want to teach German.
Porter R. Chandler: Yes sir.
Earl Warren: But we don't want any of the books that any of the public schools use for German. We want our own. We want our own German book. Could they then go to the school board and get that book approved and distribute it to them?
Porter R. Chandler: I think they could provide it and certified as passing the test of not being a religious book and not having religious connotations in it. It couldn't be a so called catholic edition with an “Imprimatur” or anything of that sort and if the local school board felt that it was not within the secular definition, it would not only have the right but the duty to refuse to buy it.
Byron R. White: Do you think they could get approve toward this history approved.
Porter R. Chandler: Get what sir?
Byron R. White: Get Twine B's history approved as a textbook in a parochial school.
Porter R. Chandler: I can only say that I don't know. I haven't been faced with that.Among my responsibilities is not that of the member of Board of Education. I do have other educational.
Hugo L. Black: Do you have in this record the number of parochial schools there are in the state of New York?
Byron R. White: Yes sir, I do.
Hugo L. Black: Probably up among the state?
Porter R. Chandler: I don't have it in the record but I can answer the question. And before doing that, I wanted to point out one other very important factor. There are of course here three classes of schools that are enrolled and we mustn't forget the three classes. They are the public schools, there are the private schools that do not teach religion and there are the private schools that do teach religion and the attack on constitutionality here is based solely on the furnishing of books to the third class of students. There is no objection in furnishing them free in the public schools. There is no objection to furnishing them free to children in the private schools so long as the private school doesn't teach religion. I think I have my statistics here. I can answer that.
William O. Douglas: I suppose the Darwinian Theory that --
Porter R. Chandler: What's that?
William O. Douglas: I suppose the Darwinian Theory would shock some religious groups isn't it?
Porter R. Chandler: Your Honors have that case on the docket for later on in this term I believe.
William O. Douglas: I don't ask you to decide it but I'm saying, what is the policy of the Board of Regents on that kind of issue?
Porter R. Chandler: I'm teaching the Darwinian Theory?
William O. Douglas: Or some competing theory.
Porter R. Chandler: I think the Board of Regents would probably provide it. Again, I don't speak for them. They could order the Darwinian or the Twine B theory I think that parochial or private schools can get buy that --
William O. Douglas: Is there anybody here speaking for the Board of Regents by the way?
Porter R. Chandler: Mrs. Coon.
William O. Douglas: You do.
Porter R. Chandler: Mrs.--
William O. Douglas: I thought you were trying to distinguish yourself from the board.
Porter R. Chandler: No sir.
William O. Douglas: I'm sorry, I misunderstood.
Porter R. Chandler: Mrs. Coon represents the Commissioner of Education who is the record defendant in this case.
William O. Douglas: I understand.
Porter R. Chandler: The Commissioner of Education is the administrative arm of the Board of Regents. He is appointed and removable by the regents. The regents under New York law are the head of the education department.
William O. Douglas: But they're not a part here are they?
Porter R. Chandler: No because the relief could be obtain fully against their executive official by the Commissioner.
William O. Douglas: Unless they discharge the commissioner.
Porter R. Chandler: What's that?
William O. Douglas: Unless they discharge the commissioner.
Porter R. Chandler: I see. I was trying to find my figures on -- there are as I recalled Mr. Justice Black. I think there are about 1400 religious schools throughout the state of various denominations.
Hugo L. Black: You know how they divide it out?
Porter R. Chandler: Among religions? I have to figure here somewhere and I --
Hugo L. Black: Are any Presbyterian colleges?
Porter R. Chandler: I call it Presbyterian and I am not--
William O. Douglas: Schools I mean.
Porter R. Chandler: There are several religious -- find that somewhere in this book.
Hugo L. Black: Can I ask you one other question in that connection?
Porter R. Chandler: Yes sir.
Hugo L. Black: Is there in the record that can be obtained?
Porter R. Chandler: In the record of sir?
Hugo L. Black: Is that in the record partly obtained, specifically at there, but you might call the charter of these parochial schools which states what their purposes is and limits their duties and their activities?
Porter R. Chandler: Yes, I would like to elaborate on that. The figures that I have is of schools, Roman Catholic 1445, Jewish 135 --
Hugo L. Black: What is that one?
Porter R. Chandler: Jewish 135, Lutheran 57, Episcopalian 48, Seventh-day Adventist 45, other religion and that includes Quakers, Mennonites, Eastern Orthodox and Methodist, other religions, 11 and non-religiously affiliated 246 of which 204 have children who are getting textbooks under this program that is of the non-religiously affiliated private schools.
William O. Douglas: 206? 206 you say?
Porter R. Chandler: 204 out of 246 non-religiously affiliated schools are having their children get books.
Hugo L. Black: Now, the Catholics have 1435.
Porter R. Chandler: 1445 Your Honor.
Hugo L. Black: 45, is there anyway we can get or is there a charter gotten out by the church itself. Gotten out by the school itself as to what they can do in those schools and watch their duties?
Porter R. Chandler: I have gone at some length into my brief on the extent of state control over these schools and I think that might answer Your Honor's question.
Hugo L. Black: I don't think it would but I would be interested to know what it is.
Porter R. Chandler: When I get through perhaps because I haven't done something further. All education, public and private in New York State is under the very broad powers of the regents. Their basic statute describes them as having legislative functions. They are -- they rule over institution which is highly misnamed as the University of the State of New York. Now the University of the State of New York has been in existence since 1784, no campus, no students, nothing that an ordinary university has. It is by definition includes all the educational institutions public and private within the state and such allied institutions is libraries and so forth. The schools have to be charted by the Board of Regents. There are subject of hesitation by the regents. Catholic schools have to be charted by the regents. They are subject to visitation by the regents. The curriculum as described in great detail.Perhaps the most startling illustration that I can give you Your Honor is this. These students and let us say a Catholic school. They draw down these books from the publics -- of the public school tithe and they use them to study courses prescribed by the regents. When they get through -- I'm referring to pupils in a catholic school. They take an examination. Who sets the examination? The regents. If they pass, they get a diploma. Whose diploma do they get? The diploma signed by church authorities? No. They get a diploma in the name of the University of the State of New York bearing the seal of the education department signed by the Commissioner of Education.
Byron R. White: Is this true of theological school?
Porter R. Chandler: Except theological schools. No, I was talking about high schools.
Byron R. White: Yes.
Porter R. Chandler: I was talking about high school diplomas.
Byron R. White: Were you also –
Porter R. Chandler: A catholic high school board if it passes an examination set by the regents and he gets a regents diploma and the sample of it is in the Appendix to our brief.
William O. Douglas: I think this is one of the theories expressed by the centers of the Court of Appeals of this old system perhaps in the long run to secularize the education in the parochial schools.
Porter R. Chandler: Well --
William O. Douglas: Did I misread that opinion?
Porter R. Chandler: The minority in the Court of Appeals indicated that it might in the long run secularize education in the parochial schools by getting parochial school parents accustomed to using secular books instead of the religiously oriented books they would have been suppose to be using otherwise. That is not a danger of which we are conscious and that it doesn't fit very well with the theory of my friend.
William O. Douglas: Well, he was talking about the future and not the --
Porter R. Chandler: My brother Pollock talks about the parochial school being practically a seminary of religion and nothing else. He talks about permeation and all that and that doesn't seem to fit very well with the theory of the Court of Appeals which is that a danger as they view it, of the statute will be that it will be un-permeated.
William O. Douglas: Well, there is that danger and maybe the danger that Mr. Pollock spoke of would be more realized.
Byron R. White: Either danger is suspected in the First Amendment.
Porter R. Chandler: Either the danger is highly speculating.
Byron R. White: I mean to suspend.
Porter R. Chandler: What?
Byron R. White: Under the First Amendment, either danger might have validated --
Porter R. Chandler: Yes and the business which my friend is also raised in his brief about being no way of distinguishing between the secular and the religious in the text would cast out on the whole theory of education even in the public school.
William O. Douglas: How does the Board of Regent -- thus the Board of Regents differentiate the curriculum it prescribes for say a Methodist parochial school and a catholic school?
Porter R. Chandler: No. They prescribed and brought outlines and in some detail it has been form with the instruction. The regulations know in our brief and for that --
William O. Douglas: Are they anti-religious the Board of Regents?
Porter R. Chandler: What did you say sir?
William O. Douglas: Is the board anti-religious?
Porter R. Chandler: I would not think they were anti-religious. I would not think they are pro-religious. But the examination and let us say a boy in the Methodist high school would take the regent's examination. It would be the same examination that is given to a boy in a public school and to a boy in a catholic.
William O. Douglas: When it comes to a book say on teaching the reformation, what kind of a decision would the Board of Regents make?
Porter R. Chandler: I think they would probably say that the book must be highly neutral or else not on the list at all. That's the problem they have to confront with public schools.
William O. Douglas: Then it would be anti-religious.
Porter R. Chandler: You got -- well, may I ask Your Honor this question back. What kind of a book would be allowed for use in the public school teaching the reformation? And the answer I think is whatever kind of book they find as sufficiently neutral on that subject to use in the public school would be alright to use in the private schools and I think that's --
William O. Douglas: The public school by definition is not serving any religious cause.
Porter R. Chandler: No.
William O. Douglas: Any particular sectarian cause.
Porter R. Chandler: If I haven't answered Mr. Justice Black's question.
Hugo L. Black: How do you understand is the basic purpose of a religious school?
Porter R. Chandler: The basic purpose of religious school is to give an adequate secular education plus religious instruction and the fact that it was given --
Hugo L. Black: I was wondering why is there been any charter that we can get hold of why these parochial schools doesn't show us? What are the lines that they must stay within and when they could get out?
Porter R. Chandler: Get out from what sir?
Hugo L. Black: The lines of the charter of parochial schools. They may not call into charter but there must be something, someone that would let us know, what's the basic object in those schools that they are talking about, according to the people who organize the school?
Porter R. Chandler: Yes.
Hugo L. Black: Not according to secular education.
Porter R. Chandler: But they have to meet the secular requirements laid down to the state or they can't exist.
Hugo L. Black: But what about the other? Can we get a charter or something that shows how they have to work to be a parochial school?
Porter R. Chandler: It doesn't immediately come to my mind just what there is but I will look and see. I could try.
Hugo L. Black: If you get it would you send it to us?
Porter R. Chandler: I will sir. But I bear in mind that they have to fill this -- the private -- the secular standards of the state. I see that the light is on and I shall not discuss our cases fully discussed in our brief. We think this case is completely alright under the Everson test which we accept fully and I agree with the Chief Justice in all submission that there's no difference in the facts between Everson and this and in line with the test --
Hugo L. Black: I didn't understand that he said that.
Porter R. Chandler: Well, I beg your pardon. He asked my friend whether there was any difference. I beg your pardon. Well, I submit there is no basic difference. Everson did --
William O. Douglas: But there's nothing ideological about a bus I suppose.
Porter R. Chandler: And I don't think there's anything ideological about a book called Hallet's Machine Shop Practice which is one of the books that is approved for use in the public schools of New York and which probably becomes bad the minute it is used by a parochial school student. I'd like to take just two minutes remaining. My friends have talked about the Establishment Clause. They did not raise the Free Exercise Clause in their complaint below at all. They have raised in their brief here and in closing, I simply want to remind the Court of the fact that what they are seeking to do is to single out that the bar from the benefits of this one -- of this broad general welfare statute, one particular class of children and to bar them on the ground, the sole ground of the religious nature of the school which they attend. I suggest that the only Free Exercise question involved in this case is the Free Exercise question which they have raised by such a type of discrimination and which runs squarely into the language of Everson that the Court in regarding against the Establishment Clauses must see to it that it does not prevent a state from extending the benefits of a broad general welfare statute to all people whether they be Mohammed, Lutherans, Jews or others.
Byron R. White: You're really arguing then that before this law was passed in New York providing any constitution?
Porter R. Chandler: No sir. My position is this and I have authority for this --
Byron R. White: Why wouldn't your argument be the same if New York is going to give free school books to public children -- public school children have to give it to --
Porter R. Chandler: No sir. I think -- I must clear that out. I take the line that the court took in Everson, the state can if it wishes confine the benefits to public school children.
Byron R. White: Well, how can they enter the Free Exercise?
Porter R. Chandler: The court said in Everson that that could be done but then I say that if the court goes outside there as it did here and extends the benefit to all children then there's always carrying it to all children that cannot exclude one particular task, the religious ones and while still going on to give the same books to show the attending non-religious private schools. The New Jersey statute would have been plainly wrong if it said, buses are alright for children going to public schools and to private schools as long as they don't teach religion. The statute would be all wrong if each had buses maybe descent, buses maybe used or books maybe used to children in public schools and parochial schools leaving out the private ones.
William J. Brennan, Jr.: Do you rely it all in Sherbet and Verner for your --
Porter R. Chandler: I rely very much so on Sherbet v. Verner and I cited in that section of our brief.
Byron R. White: Yes but Sherbet would more support the idea that New York was violating the constitution before this law passed.
Porter R. Chandler: I wouldn't -- by providing it only for public schools. I wasn't taken out sir under the Everson doctrine and I don't think that Sherbet would affect that. I think New York's actions quite constitutional. Incidentally, one more thing that I forgot to mention, to correct the New York law as it was before 1935, New York did have a law in 1934 which provided free textbooks for everybody along with transportation, clothing and shoes, provided that the child's parents were indigent and the Attorney General of New York handed down an opinion that that applied to parochial school children. So if my friend is correct and if he wins here, he will stricken out the provision of the 1965 Act but left the 1934 one standing so that according to that construction, a child who goes to a public school gets free books whether he is rich or poor. A child who goes to a private school that doesn't teach religion gets free books whether he is rich or poor. A child that goes to a religious school will go on getting free books provided that he can prove that his family is on relief. In that I submit rather serious questions of equal protection and free exercise.
Hugo L. Black: May I ask you, suppose this law provided that states paid the wages or the salaries of all the teachers who teach at schools that taught mathematics?
Porter R. Chandler: Your Honor, I don't think I can generalize on hypothetical statute that against the background of necessities or judgments that I cannot --
Hugo L. Black: There's either argument about mathematics.
Porter R. Chandler: It's been -- argument about mathematics. They may well be a distinction but my only answer to that would be that when you're faced to the facts in that situation, the thing is to see whether it squares with the dual test that this Court laid down in Schemp. A primary secular purpose that in effect which neither advances nor inhibits religion, if it meets that test as we think this program does then it would be alright. I would find it difficult -- I would find it difficult to express an opinion Your Honor without knowing all the facts.
Hugo L. Black: Well, all the facts that I've suggested is that the State of New York supposed to be all the wages or salaries of all the teachers of mathematics and all the church schools in New York.
Porter R. Chandler: If they say all the church schools in New York, I would think that that would raise a very serious question it would have to be a program as this one is for all children in all schools whether they're church schools or public schools or other.
Hugo L. Black: Is this refers to church school?
Porter R. Chandler: What did you say sir?
Hugo L. Black: Is this law -- does not this law refers to church school?
Porter R. Chandler: No sir.
Hugo L. Black: What does it refers to?
Porter R. Chandler: All schools which make the compulsory education law -- if that includes church schools --
Hugo L. Black: What's the basic things involved in it. I thought we had a question here of contributing to church schools.
Porter R. Chandler: Sir, the statute provides free book to all children and all schools submit the compulsory education law.
Hugo L. Black: That's right.
Porter R. Chandler: There are three classes of such schools. There are the public schools, there are the private schools that don't teach religion and it's still complying with the compulsory education law, and there are the private schools that do teach religion.
Hugo L. Black: Which is what I thought we have here.
Porter R. Chandler: That is the only attack that is being made here. The statute -- my friend is attacking only the distribution of books to children in church schools. He is not attacking the delivery of such books to children in other private schools. That I say raises a very serious question under equal protection and the free exercise religion. I hope I made myself clear. Thank you sir.
Earl Warren: Mr. Pollock.
Marvin E. Pollock: Your Honor. In this dissenting opinion in Everson, Justice Jackson set forth the cannonball of the church relating to Catholic schools by which all Catholics were bound so far as I know, these are still the cannonball of the church relating to church schools. One of those cannons reads as follows. Catholic children are to be educated at schools where not only nothing contrary to catholic faith and morals is thought but rather in schools where religious and world training occupy the first place. I like to comment too on something that Mrs. Coon said having to do with the pupil request under the statute of the pupil that requested the books. The way the statute is first written. It did not contain the definition of textbooks and requested one would have to ask is what role can a 12-year-old play the selection of books which he's going to use it in school. The way the statute read then, it would have to be argued that the student could go to the school board and ask for any book and any number of books so long as they were books designated for use. But the statute was amended to make clear that the only book as student could request is one which is legally required to use as a text for a semester more in a school he legally attends making it absolutely clear that it is this school that is ordering the books. In conclusion, I would like to say briefly that there are many advocates of aide to parochial school who seek to further purely the religious objectives by masking their appeal for funds in the rectory for public purpose. Thus, their appeals many times are wrapped in the mantle of the educational problem or poverty problem. While no one would dispute the need for these programs, we must be careful not to sacrifice constitutional principles in the process. The principle in church and state separate has served this nation well attesting to the wisdom of those who fought hardest for its acceptance in our constitution. It is part of our fabric not because we paid the lip service but because we continue to give it vitality. We should not permit the principle to be eroded by mouthing its words while stripping it of all significance. I submit that this Court should rule that the furnishing of textbooks by the state of New York with funds raised by taxation constitutes a use of state funds to a religion in violation of the First Amendment. Thank you.