Warren E. Burger: Mr. Nolan.
Richard E. Nolan: Mr. Chief Justice, and may it please the Court. I argue here on behalf of the intervenor schools, four of which are religiously affiliated. I'd like to say one thing in the beginning, with respect to the statement that Mr. Pfeffer made to the effect that these schools discriminate in admissions against persons not of their religious faiths. The four religiously affiliated schools have each executed answers to plaintiffs' interrogatories, answer # 5, denying that they imposed religious restrictions or preferences on admissions. I think that that is borne out at least as to the Roman Catholic schools, by the fact that in Manhattan, in the elementary schools conducted by the Archdiocese of New York in Manhattan, 16-1/2 percent of the children in those schools are non-Catholic. And there are various other statistics for other areas. But I think at least the schools in New York take great pride in the fact that, far from discriminating against non-Catholics inadmissions, they have consciously kept open schools in inner city core areas, where the population of Catholics has declined. They have kept those schools open, and they have taken care, in an educational sense, of significant numbers of non-Catholics. And I think that is--
Byron R. White: Has that fact been found or not found in the record?
Richard E. Nolan: There's nothing in the record, Your Honor, with respect to that. There are the answers to admissions. But I checked yesterday as to what the percentages were--
Byron R. White: Well, how about in the opinions or the findings in this case?
Richard E. Nolan: I don't believe so, no, sir. But there is no evidence--
Byron R. White: So how should we judge it? That they do discriminate, or that they don't?
Richard E. Nolan: There is no evidence to support any claim that they do discriminate.
Byron R. White: I take it then--
Richard E. Nolan: And there is affirmative evidence with respect to the four religiously affiliated schools, in answers to interrogatories, in which they each deny that they discriminate on the basis of religion in terms of the--
Byron R. White: Was this argument presented below?
Richard E. Nolan: No, sir.
William H. Rehnquist: Well, if this case has gone to trial, I take it a trier of fact would have been at liberty to disbelieve the statements made.
Richard E. Nolan: That is right.
William H. Rehnquist: But it didn't go to trial?
Richard E. Nolan: It did not. It went off in the context almost of a summary judgment.
Byron R. White: But in this case at any time has it been argued that because--because these schools--one of the reasons why this money may not be given to these schools is that they discriminate?
Richard E. Nolan: Not my understanding, Your Honor.
Byron R. White: Has that claim ever been made in this case?
Richard E. Nolan: No, no; I do not believe so.
Byron R. White: If it had, and the court didn't decide, you would think the court had said - Well, even if they discriminate--
Richard E. Nolan: That point was never raised, to my knowledge, either in the first or second phases of this case.
Warren E. Burger: And if you went to trial--
Richard E. Nolan: If we went to trial--
Warren E. Burger: --whose burden would it be to show exclusion of--
Richard E. Nolan: I would think it would be the plaintiffs' burden, but I think we would put in statistical evidence with respect to the number of non-Catholic children in the various Catholic, Jewish, Lutheran and other schools that are involved in the program under review. Getting back to this program, and I don't want to go over again what Mrs. Siegel has said, but I think it is worthwhile talking a little bit about just what this program is. First of all, it involves attendance-keeping and reporting. This is required by the State of New York. This is not something the schools do on a voluntary basis, or they very well might. But it is required, to insure compliance with the compulsory education law of New York. The people who keep these records, or compile these records--and this is based on the stipulation of fact which is a part of the appendix--the people who compile these records are typically secretaries in the main office or the front office of the school. They are not people who have anything to do with the education or the instructional function. They are simply counting heads on a daily basis to be able to make the reports that are required by the State of New York. And I fail to see any ideological content in that type of activity. I may say that, as the district court found, that the great bulk--the lion's share, I think they said--of the money that is paid, 85, 90 percent, somewhere through there, is for the maintenance of attendance records, preparation of attendance reports.
Warren E. Burger: What percentage?
Richard E. Nolan: 85-95 I think was the phrase used in the district court opinion. But it's the great bulk, the lion's share, as Judge Mansfield said.
Harry A. Blackmun: Are these records identical to those required from the public schools?
Richard E. Nolan: As I understand it, they are, Your Honor; they are the same forms that are used. The parochial schools are required--and it may also be that the public schools are also required--to submit various reports based on those records; and also to submit the so-called BEDS report which goes in once a year, the Basic Educational Data System report, which shows on a yearly basis people's faculty, courses given, and other information concerning the schools. And I think that is done both for the public and the nonpublic schools.
Potter Stewart: Mr. Nolan, why is Horace Mann-Barnard School here at all, when the plaintiffs, through Mr. Pfeffer, concede the validity of the application of the state law to a school--to that school and schools like it?
Richard E. Nolan: Horace Mann-Barnard School was initially joined because of the attack on the statute. Horace Mann is a fairly large school with a stake in the financial side of this.
Potter Stewart: It is non--non-religious?
Richard E. Nolan: It is nondenominational. And I think that--
Potter Stewart: Concededly so, isn't it?
Richard E. Nolan: Yes, yes. And I think that Mr. Pfeffer, for the first time in the proceedings, oh, before the Court on the second phase of this case, agreed that he really sought no relief against Horace Mann. But basically what I am here talking about--
Potter Stewart: They're just here as a historic vestige?
Richard E. Nolan: Historic vestige. What I'm here talking about are the religiously affiliated schools, which to some degree conform, and to some degree do not conform, according to the answers to interrogatories, with the profile that has been used by this Court in the past. But getting back to what this statute does, apart from attendance, it provides for various testing--standardized, state-prepared tests, which are prepared by the Department of Education for the State of New York to be made available to public and non public schools, they are the same tests but are made available used in the public schools. These basically involve several types of tests. The Regents scholership examinations which are given to persons seeking New York state Regents examination at the end of high school, these are prepared by and graded by the personnel of the New York state education department. The only thing that the schools do, the non public schools do it would be to recieve the test under very secure circumstances sealed kept in under lock and key distribute those tests at the place of testing, pick them up send the test back to and I suppose people order in the class room. We also have the people evaluation progragm, the PEP, and that is the test that is given I think in third, perhaps sixth and ninth grade to measure confidence in reading and mathamatics and is basic, in fact its completely an objective multiple choice type test. It is given again to children in non public and public schools, it is graded in the non public schools either by machine or by hand by the personnel of school but basically what you are talking about is simply the teacher putting at overlay and I am reffering now to exibit 11 to the stipulation of fact which is the one of the New York state test in reading for grade nine, simply put the overlay over and see which places the child has marked properly. There's no discretion at all involved in this. Then you have the Regents Examination, which are the end-of-course examinations that are given in a number of secular subjects in the public schools and in the private schools. And these are the ultimate measures, if you will, of educational competence in secular subjects in New York.
Warren E. Burger: Is that an optional test?
Richard E. Nolan: I believe all students take it, but you can only get a Regents degree if you have passed the Regents examination. But I believe it is required for all children. But this is, again, to a very large extent, as found by the district court, an objective, multiple choice examination type of test, where there is no discretion in the grading process. There are a few, as found by the district court, a very few, essay questions on various topics relevant to the particular examination. Those are graded by the school personnel. But the state provides, along with the examinations, the state provides rating guidelines, specific rating guidelines, as to how these people are to do it. And in addition, the schools are required to send both the passing and failing papers to Albany, where they are checked by state personnel on a random basis. So again, there is minimal--minimal opportunity for any involvement. There certainly--at that stage in the game, these tests have nothing to do with the instructional phase of education. The only thing that I can think of would be the possibility that some child might try to curry favor with a teacher by using a religiously oriented answer. But that is indoctrination, if you will, coming back the other way. It is not indoctrination of the child. I think that this statute is, in all respects, constitutional under Wolman, as I think it is is modified by Meek. Even if it is not modified by Meek, I think it is constitutional under Meek.
Warren E. Burger: Very well, Mr. Nolan. Mr. Pfeffer?
Leo Pfeffer: One of the questions put by Mr. Justice Rehnquist is--deals with whether these schools--and it was also asked by Mr. Nolan--whether the schools which have intervened in this case do discriminate in their admissions policy in respect to religion. We didn't sue these intervenors. They voluntarily intervened, and therefore, those who intervened, I would assume were intervened because they reflected the best possible picture. And I think that's really the issue. I think that avoids the issue. It's a basic--
William H. Rehnquist: They're the only litigants that we have before the Court in that aspect of the case.
Leo Pfeffer: Yes. The--I must say that evidence is irrelevant, for the reason which I will state in a moment.
William H. Rehnquist: Why don't you state it right now?
Leo Pfeffer: I'm stating it right now. I mean right now. The constitutional issue in this case is not whether these schools or other schools do or do not discriminate on the basis of religion. The constitutional issue in this case is predicated on the fact that they have a right, a constitutional right, to exclude on the basis of religion. Whether or not--
William H. Rehnquist: But wasn't how you phrased your argument on your original submission, during your direct. You stated it--discrimination--as a fact.
Leo Pfeffer: If I did that, I apologize. My argument is that they have a constitutionally protected right, under Pierce v. Society of Sisters, and others, to exclude on the basis of religion. Whether they exercised that right or not, is noted in the factual--of this case. They should not constitutionally be allowed to receive taxes at all, irrespective of religion, if they have a constitutional right to exclude. This is the foundation of our case.
Byron R. White: You say that whether these schools exclude on the basis of religion or not, these payments are unconstitutional?
Leo Pfeffer: Yes, because they have a right to exclude; that's what I'm saying. Because they have the right to exclude on the basis of their religion, then I say you cannot tax all people to pay for the maintenance of a school which can exclude you if they want.
Byron R. White: So it isn't because these schools are religiously connected that you--
Leo Pfeffer: Oh, yes; it is because they're religiously--
Byron R. White: Well, what about a private school that isn't controlled by any religion--
Leo Pfeffer: There's no constitutional--
Byron R. White: --that just decided that it doesn't like Methodists. And they--and here's a private school that just excludes Methodists.
Leo Pfeffer: Well, Methodists is an exclusion on the basis of religion.
William H. Rehnquist: Well, Pierce was decided long before the First Amendment was held applicable to the states. It was on the constitutional Fourteenth Amendment right, you have a right to send your child to a private school.
Leo Pfeffer: No question about it. And as a matter of fact, Pierce involved a secular school as well as a religious one.
William H. Rehnquist: Yes.
Leo Pfeffer: There's no question about it. But the issue in Pierce, and I don't think that any member of this Court would say that--or should say--that a school which is constitutionally permitted to exclude persons because of their religion--
Byron R. White: Well, what about Horace Mann in this case. Horace Mann has the constitutional right to exclude on the basis of religion if it wants to.
Leo Pfeffer: If they have a constitutional right?
Byron R. White: Well, doesn't it?
Leo Pfeffer: Yes. But if they do that--
Byron R. White: Well, then, I don't understand why you don't say that--
Leo Pfeffer: Well, if Horace Mann receives money, it has a constitutional right to exclude on the basis of religion. But it has no reconstitutional right to receive public funds if it does exclude on the basis of religion.
William H. Rehnquist: Well, you've changed your position.
Leo Pfeffer: No, I do not think--
William H. Rehnquist: You've changed your position completely. Which is all right. That's the way lawyers go.
Leo Pfeffer: Well, I don't believe my position--
William H. Rehnquist: You've vacillated all over the lot.
Leo Pfeffer: Oh, I don't think so. I'll repeat what I said at the beginning. I'll repeat it. It's been our position all along that if you have a constitutional right to exclude because of religion, you cannot constitutionally use funds raised by compulsive taxation of all irrespective of their religion. This is the categorical imperative which I believe the First Amendment stands upon. Now--I suggest, too, that independent of that, surveillance which is forbidden in respect to religion is necessary--state surveillance--is necessary to its--if public funds are used for that school, whether it's record-keeping, whether it's instruction, if you use public funds, then the public, the state, has a right to see that those funds are used in accordance with the rules of the state. The very involvement, entanglement, of the state to check whether--the law in this Court has said so; I'm not inventing this--to check whether or not the law's complied with, that very surveillance constitutes impermissible entanglement, which forbids the use of public funds in that case. That's what this Court has said time and time again.
Warren E. Burger: Your time is up.
Leo Pfeffer: Thank you very much.
Warren E. Burger: Thank you, gentlemen. The case is submitted.