PREPARED STATEMENT OF EDD DOERR, ASSOCIATE DIRECTOR OF ORGANIZATION, PROTESTANTS AND OTHER AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE

My name is Edd Doerr. I represent and serve on the staff of Protestants and Other Americans United for Separation of Church and State, a nonprofit educational organization dedicated solely to the preservation of religious liberty through the observance of the principle of church-state separation embodied in the First Amendment.

Americans United, as it is generally known, has a nationwide membership representing every state in the Union, every religious faith, and a wide range of political beliefs. It has more than one hundred chapters, study groups, regional offices, and clearing houses. Representatives of Americans United have often appeared before Congressional and State legislative committees to provide background information on the rights of citizens under the First Amendment.

Although our members have differing views on the basic subject of federal aid to education, they are united in being deeply disturbed by the following: (1) the Higher Education Facilities Act of 1963 has allowed the granting and loaning of many millions of dollars of tax funds to sectarian religious institutions; (2) the 1963 Act made no provision for judicial review at the instance of aggrieved taxpayers; and (3) the Higher Education Amendments of 1966, S. 3047 and H.R. 14644, make no provisions either for judicial review or for the elimination of benefits to sectarian institutions under this legislation.

We see no constitutional objections 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 a "sectarian disclaimer", are of very doubtful constitutionality.

The United States Supreme Court has repeatedly said, as it did in Everson v. Board of Education (330 U.S. 1, 1947), that:

"The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. . . . 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. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organization or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and state'."

Justice Douglas further spelled out the meaning of the First Amendment in his concurring opinion in Abington School District v. Schempp (374 U.S. 203, 1963): "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. Financing a church either in its strictly religious activities or in its other activities is equally unconstitutional, as I understand the Establishment Clause. 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 its own members." (Emphasis in the original.) We wholeheartedly concur with the Supreme Court and believe, with Jefferson that:

"*** to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical ***"

At this point it is relevant to call attention to the important ruling handed down on June 2. 1966. bv 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 First and Fourteenth Amendments to the United States Constitution three special Maryland laws providing grants to taxpayer funds to three church-related colleges. (The Maryland Court of Appeals' ruling is appended to this testimony.)

The Maryland Court said:

"We think they (the facts) clearly show that the operative effect of the Bills (if the grants are permitted to be made) demonstrates, in a legal and

constitutional sense, a purpose to use the State's coercive power to aid religion; that the grants, if made, would constitute a contribution by the State of taxraised funds to support institutions which teach the tenets and faith of a particular church; and that the taxes levied to raise the funds for the grants would be levied to help support religious activities and religious institutions.”

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

The Maryland Court said:

"The experts on both sides are in general accord that the following factors are significant in determining whether an educational institution is religious or sectarian: (1) the stated purposes of the college; (2) the college personnel, which includes the governing board, the administrative officers, the faculty, and the student body (with considerable stress being laid on the substantiality of religious control over the governing board as a criterion of whether a college is sectarian); (3) the college's relationship with religious organizations and groups, which relationship includes the extent of ownership, financial assistance, the college's memberships and affiliations, religious purposes, and miscellaneous aspects of the college's relationship with its sponsoring church; (4) the place of religion in the college's program, which includes the extent of religious manifestation in the physical surroundings, the character and extent of religious observance sponsored or encouraged by the college, the required participation for any or all students, the extent to which the college sponsors or encourages religious activity of sects different from that of the college's own church and the place of religion in the curriculum and in extracurricular programs; (5) the result of the college program, such as accreditation and the nature and character of the activities of the alumni; and (6) the work and image of the college in the community."

In applying these criteria to the Maryland laws granting funds to four colleges, the State Court of Appeals found that one of the instiutions, Hood College, was not run or controlled by any church and could not be considered "religiously slanted", and that it was therefore constitutionally permissible for Maryland to grant funds to that institution. Using the same criteria, the Maryland court found 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. It would, we believe, be useful for 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 that church.

It might be noted that the Maryland Court of Appeals based its ruling on the United States Constitution rather than on the Maryland Constitution for the reason that the latter is not violated by state grants to religious colleges.

It is too early to tell whether or not the Horace Mann League ruling will be appealed to the United States Supreme Court, and it would be presumptuous to attempt to predict what the Supreme Court's decision would be or even if the Court would accept the case for review. But since the Maryland court based its ruling squarely on interpretations of the First Amendment made by the United States Supreme Court during the past twenty years, it is difficult to imagine that the Supreme Court would reverse the Maryland Court.

It is most interesting to note that shortly after the Maryland Court ruled unconstitutional a state grant of $500,000 to Western Maryland College, the Department of Health, Education and Welfare announced that that institution would be the recipient of a $278,730 grant under the Higher Education Facilities Act of 1963. This highlights the ambiguities and contradictions of the present situation in regard to federal education aid programs and vividly demonstrates the need for constitutional clarification, either by Congress or the Supreme Court.

We appreciate the problems of the Nation's colleges and universities and we realize the difficulties of administering grants and loans to hundreds of institu

tions. To clarify the law and simplify their task Congress should include safeguards in the Higher Education Amendments of 1966 to bar grants or loans to sectarian colleges and thereby protect the citizen's 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.

Attention might also be called to the fact that the Internal Revenue Service allows businesses controlled by churches the same tax exemption as churches themselves. If a church-controlled business is considered by the Treasury Department to be a church, with regard to the flow of tax funds in one direction, why should not the Department of Health, Education, and Welfare consider a church-controlled college to be a church with regard to tax funds flowing in the other direction? Congress, of course, has the power to resolve this strange inconsistency.

In conclusion, our members and a great many other citizens 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 Elementary and Secondary Education Act of 1965, 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 overseas. 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. 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 which was dropped, I believe, by the joint conferees at the insistence of members of the House

The Senate is aware of the need for judicial review as a result of the hearings on S. 2097, so that it is not necessary to repeat the arguments for 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.

As a parent and as a public school teacher, I am gratified by the Congress's interest in education. But I agree wholeheartedly with the many citizens I represent here today that nothing should take precedence over our First amendment liberties, described by Senator Ervin as "the greatest contribution this nation has made both in the realm of politicies and of religion."

Senator KENNEDY of Massachusetts. As you well know and pointed out in your testimony, there is every reason to believe that the Supreme Court will take this under advisement in the fall session and give us some kind of determination of their attitudes. I think many of us are looking forward certainly to their declaration. I think it will be extremely illuminating and important as well as clarifying this whole area. And so I want to thank you very much for your appearance here this morning and for taking the time to come. I know that the organization that you represent is extremely interested and has been extremely helpful to many Members of Congress and the Senate in helping to bring material and information to them which provides for a more balanced and informed judgment.

I personally received letters from your organization and have always found them to be helpful and constructive, and so I want to thank you on behalf of the subcommittee for taking time to appear here on a matter which is of great importance and urgency. I think you made a very comprehensive and enlightening presentation. I want to thank you for it.

Mr. DOERR. Thank you, Mr. Chairman.

Senator KENNEDY of Massachusetts. Our next witness is Miss Carolyn Whitenack. She presently is associate professor at Purdue University, Lafayette, Ind. Previously she had been associated at the University of Kentucky in the Department of Library Science, University of Illinois, a teacher in the Kentucky public schools; she is the president-elect of the American Association of School Librarians and a member of the American Library Association Council. She has an A.B. degree from the University of Kentucky, an M.S. degree from the University of Illinois, and many other parts to her biography. Needless to say, she is qualified to make this statement, and I think that perhaps her interest and her dedication is quite clearly demonstrated by her determination to arrive at this hearing in spite of the airline strike and has gone to some extra effort to be with us here this morning. And I want to tell you on behalf of the members of the subcommittee and certainly the full committee that we are extremely appreciative of the efforts that you have made.

STATEMENT OF CAROLYN WHITENACK, ASSOCIATE PROFESSOR OF LIBRARY SCIENCE AND AUDIOVISUAL EDUCATION, PURDUE UNIVERSITY

Miss WHITENACK. Thank you very much, Senator Kennedy, for your very kind remarks.

Needless to say, I was terribly frustrated not to be here as your first witness because I could always consider it an honor to be the first witness, and I feel a little chagrined that the airlines could not come through.

Senator KENNEDY. Well, let me say that the subcommittee puts a priority on your testimony whether it comes first or second or in any order, so we are delighted to have you.

Miss WHITENACK. Thank you very much. I bring you greetings from the more than 7,000 librarians meeting now in New York City in their national conference.

I am associate professor of library and audiovisual education at Purdue, and I am here today to testify on behalf of the American Association of School Librarians, a division of the American Library Association.

The American Library Association is a nonprofit, professional organization of over 31,000 members including librarians and citizens devoted to the cause of developing school, college, public, and other types of libraries so that these agencies can carry out their essential role, contributing to the Nation's steady advancement. It is my privilege and pleasure to appear before this committee in support of those aspects of S. 3047 and H.R. 14644, which are of particular concern to libraries and librarians.