vastly differing views on the basic subject of Federal aid to education, and, of course, have no objection whatever to sectarian colleges as long as they do not receive tax funds, they are united in being deeply disturbed by the following.

SECTARIAN COLLEGE-JUDICIAL REVIEW

Under the 1963 Higher Education Facilities Act, a great many millions of dollars have been channeled to sectarian religious colleges. Second, the 1963 act did not make any provision for judicial review. The Senate did pass a judicial review amendment on this which was introduced, I believe, by Senator Ervin, but it was weeded out in the conference committee with the House.

Further, we are disturbed by the fact that the Higher Education Amendments of 1966 make no provision either for judicial review or for the elimination of benefits to sectarian institutions under this legislation.

We see no constitutional objection to grants or loans to public colleges, to nonsectarian private colleges, or even perhaps to those colleges which have only a nominal connection with a church. We believe, however, that grants or loans to sectarian colleges, even with the sectarian disclaimer used in the present legislation, are of very doubtful constitutionality.

I need not remind the subcommittee the language the Supreme Court has used on numerous occasions on this subject to the effect 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.

"SCHEMPP" OPINION

We further feel that Justice Douglas spelled out the meaning of the first amendment very well in his concurring opinion in Schempp 3 years ago when he said.

The most effective way to establish any institution is to finance it; and this truth is reflected in the appeals by church groups for public funds to finance their religious schools.

Mr. Justice Douglas went on to say:

Financing a church either in its strictly religious activities or in its other activities is equally unconstitutional *** budgets for one activity may be technically separable from budgets for others. But the institution is an inseparable whole, a living organism, which is strengthened in proselytizing when it is strengthened in any department by contributions from other than it own members. Mr. Justice Douglas also pointed out that what cannot be done directly cannot be done indirectly, lest the establishment clause of the first amendment become a mockery.

HORACE MANN LEAGUE V. BOARD OF PUBLIC WORKS

At this point, I think it is relevant to call attention to an important ruling handed down just 6 weeks ago on June 2, 1966, by the Court of Appeals of the State of Maryland in the case of Horace Mann League v. Board of Public Works.

In this case, Maryland's highest court struck down, as violating the 1st and 14th amendments to the U.S. Constitution, three special Mary

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land laws providing grants of taxpayer funds to three church-related colleges. The decision itself is appended by my testimony.

The Maryland Court of Appeals' decision in this case certainly cast grave doubt upon the constitutionality of all Federal grants to sectarian institutions, since the decision was based upon several earlier rulings by the U.S. Supreme Court. The Horace Mann ruling, further, I think would be useful to this committee for it furnishes a set of criteria for differentiating between religious colleges which may not be constitutionally granted aid from tax funds and other private colleges to which Government grants may constitutionally be given.

I need not quote from the Maryland court decision, as it is in my written testimony.

In applying these criteria to the Maryland laws granting funds to four colleges, the court of appeals found that one of them, Hood College, was not run by or slanted to any church and, therefore, it could constitutionally receive grants from the State of Maryland; but the court ruled, using the same criteria, that the other three colleges were so obviously religious and sectarian that a State grant to them would be an aid to religion prohibited by the first amendment.

SECTARIAN AND PRIVATE COLLEGES

It would be, we believe, useful to Congress to bear in mind this important distinction between sectarian colleges and private colleges which are only nominally sponsored by a church and have only the most tenuous connection with a church.

It might be noted that the Maryland Court of Appeals based its ruling on the U.S. Constitution rather than the Maryland constitution because the Maryland constitution is not violated by State grants to religious institutions.

It is too early for us to tell whether or not the Horace Mann case will be appealed to the Supreme Court and it would be foolish to attempt to guess what the Supreme Court would do if the case is appealed. But we find it difficult to imagine that the Supreme Court would reverse the Maryland high court.

It is also interesting to note that shortly after the Maryland court ruled unconstitutional a State grant of $500,000 to Western Maryland College, a Methodist institution, the Department of HEW announced that this very same institution would be the recipient of a $278,730 grant under the Higher Education Facilities Act of 1963, which the present legislation is seeking to extend.

This situation highlights the ambiguities and contradictions of the present situation in regard to Federal aid to education programs and vividly demonstrates the need for Constitutional clarification, either by Congress or by the Federal courts.

SAFEGUARDS

We appreciate the problems of the Nation's colleges and universities and realize the difficulties of administering grants and loans to hundreds of institutions. To clarify the law and simplify Congress' task, we believe Congress should include safeguards in the Higher Education Amendments of 1966, to bar grants or loans to sectarian colleges and thereby protect the citizens' first amendment right not to be taxed for the support of religion-his own or anyone else's. We

respectfully suggest that Congress make use of the criteria accepted by the Maryland Court of Appeals for determining whether particular colleges are sectarian in character.

FLOW OF FEDERAL FUNDS TO SECTARIAN INSTITUTIONS

In conclusion, our members and a great many other Americans are deeply concerned about those aspects of various Federal programs which are allowing an ever-increasing stream of tax funds to flow to religious institutions. This is happening under the Higher Education Facilities Act of 1963, the 1965 Elementary and Secondary Education Act, the Defense Education Act, the Economic Opportunity Act, and various Federal programs for the disposal of surplus Government property and for the distribution of agricultural surpluses in needy nations. We feel that what began as a trickling stream has become a raging torrent which may one day sweep away the wall of separation between church and state erected by the first amendment. As Senator Sam Ervin said last February at a national conference sponsored by our organization, quoting Elihu Root: "We have staked the very existence of our country on the faith that complete separation between the state and religion is best for the state and best for religion."

We hope that Congress will see fit to amend S. 3047 and H.R. 14644 to the end that no grants or loans be provided to sectarian religious institutions, and that the criteria laid down by the Maryland Court of Appeals be utilized to differentiate between institutions to which grants or loans may be constitutionally provided and those to which they may not be constitutionally provided.

JUDICIAL REVIEW AMENDMENT

If such an amendment is not added to S. 3047 and H.R. 14644, then we strongly urge that a judicial review amendment be added to these bills similar to that amendment to the 1963 Higher Educational Facilities Act which was added by Senator Ervin, and passed by the Senate, but was defeated in the conference committee.

The Senate is aware of the need for judicial review as a result of the hearings on S. 2097, which is cosponsored by two members of this subcommittee, Senators Morse and Yarborough, so that it is not necessary to repeat the arguments for judicial review here. Surely, if there are differences of opinion as to the constitutionality of grants to certain institutions, taxpayers should be accorded access to the courts to challenge the constitutionality of expenditures for the benefit of sectarian institutions. After all, a right without a remedy can hardly be called a right.

That is the conclusion of my oral summary.

Senator KENNEDY of Massachusetts. Well, I want to thank you, Mr. Doerr. We want to include your complete statement in the record and it will be so included.

I will also include in the record the Court of Appeals decision of the State of Maryland, The Horace Mann League of the U.S.A. v. the Board of Public Works of Maryland.

(The material referred to follows:)

Court of Appeals of Maryland

No. 356, September Term, 1965-Filed June 2, 1966

THE HORACE MANN LEAGUE OF THE UNITED STATES OF AMERICA, INC., ET AL.

VS.

BOARD OF PUBLIC WORKS OF MARYLAND ET AL.

Appeal from the Circuit Court for Anne Arundel County. O. Bowie Duckett, Judge.

Argued by Leo Pfeffer, member of New York Bar and Melvin J. Sykes (Walter R. Tabler, on the brief), both of Baltimore, Maryland, for appellants.

Argued by Thomas B. Finan, Attorney General (Robert C. Murphy, Deputy Attorney General and Edward L. Blanton, Assistant Attorney General, on the brief), for Board of Public Works of Maryland, part of appellees; by William L. Marbury (Lewis A. Noonberg, on the brief), for The Saint Joseph College of the Daughters of Charity of Saint Vincent de Paul, Inc.; College of Notre Dame of Maryland, Inc.; and Hood College of Frederick, Maryland (Francis X. Gallagher, George T. Tyler and J. Nicholas Shriver, Jr., on the brief for The Saint Joseph College of the Daughters of Charity of Saint Vincent de Paul, Inc.), all of Baltimore, Maryland (Alfred L. Scanlan, Washington, D. C., and George W. Constable, Baltimore, Maryland, on the brief for College of Notre Dame of Maryland, Inc.; Parsons Newman, Frederick, Maryland, on the brief for Hood College of Frederick, Maryland, and Arthur E. Sutherland, Cambridge, Massachusetts, on the brief); and argued by Ridgely P. Melvin, Jr., Annapolis, Maryland, for Western Maryland College, other appellees.

Amicus curiae brief filed by Protestants and other Americans United for Separation of Church and State. Franklin C. Salisbury, Washington, D. C., on the brief.

Argued before PRESCOTT, C. J.; HAMMOND, HORNEY, MARBURY, OPPENHEIMER and THOMAS J. KEATING, JR., (Specially Assigned) and RALPH W. POWERS (Specially Assigned), JJ.

PRESCOTT, C. J.