FEDERAL AID TO EDUCATION

WEDNESDAY, APRIL 30, 1947

UNITED STATES SENATE,

SUBCOMMITTEE ON EDUCATION OF THE

COMMITTEE ON LABOR AND PUBLIC WELFARE,

Washington, D. C.

The subcommittee met, pursuant to adjournment, at 10 a. m., in room 357, Senate Office Building, Senator George D. Aiken presiding. Present: Senators Aiken (presiding), Donnell, Ellender, and Hill. Senator AIKEN. The committee will be in order and we will continue with the hearings on the Federal aid to education bill.

Before calling any witnesses, the Chair will place in the record a statement of George T. Trial, national director of education, Veterans of Foreign Wars of the United States. He was unable to be present, but has submitted this statement, which will be included in the record. He endorses the principle of Federal aid to education.

(The brief referred to appears at the close of the day's proceedings.) The first witness to testify this morning is Mr. E. Hilton Jackson of Washington, D. C. Mr. Jackson, will you state whom you represent this morning? We know whom you are representing, but sometimes people represent one organization and another one later.

STATEMENT OF E. HILTON JACKSON, ATTORNEY AT LAW, WASHINGTON, D. C.

Mr. JACKSON. I am representing at this hearing no organization. I have not been requested to appear on behalf of any organization. It has been suggested that on account of my participation in the argument of the Everson case that came up in New Jersey before the Supreme Court, it might be desirable that I discuss this proposed bill in connection with the constitutional aspects that are inherent in that decision, in its relation to Senate bill 472.

While much has been said with respect to the dissenting opinions in the Everson case, I shall make no reference to the dissenting opinions. I shall simply confine myself to the pronouncement and holding of the Supreme Court, as reflected in the majority opinion pronounced by Mr. Justice Black. That case, while adopting the principle in all of its statements of the separation of church and state and the inability to give aid, either little or great, to parochial or denominational schools, did go to the point of making declarations in the opinion that I think are of the first importance in any consideration of the constitutionality of the proposed bills.

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I would say that the heart of the decision of the majority, to which there was no dissent, of course, except that the language might be made more emphatic, is in these words of the Court:

The establishment-of-religion clause of the first amendment means at least this: 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.

Then Mr. Justice Black says: "The first amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach. New Jersey has not breached it here."

Now I read a further quotation from the opinion of Mr. Justice Black:

New Jersey cannot consistently with the "establishment of religion clause" of the first amendment contribute tax-raised funds to the support of an institution which teaches the tenets and faith of any church.

Now, when we come to this bill, in the light of that declaration that New Jersey cannot consistently with the establishment of religion clause of the first amendment contribute tax-raised funds to the support of any institution which teaches the tenets and faith of any church--when we read this bill, a section of which we think should be amended and would come within the language of the Supreme Court, we find that the bill contemplates-I am discussing only section 6 (A)-the bill contemplates, subject to certain definitions and rules. of procedure, that the funds created by this bill shall be available for disbursement by that State to local public jurisdictions or other State public education agencies for all types of current expenditures, excluding interest, debt service and capital outlay, for the public elementary school and public secondary school education. Following that up we find that the funds paid to a State under this act shall be expended only by public agencies and under public control, except that in any State in which funds derived from State or local revenues are disbursed to nonpublic educational institutions.

So we have here in this bill direct authority to let this money go, subject to certain regulations, for all types of current expenditures, excluding interest, debt service and capital outlay, and leave it to the State law or the State constitution as to what disbursements may be made, if any, to the nonpublic schools or educational institutions at large.

Our direct proposal for the amendment of this law may be found on page 7 of the bill, line 6, beginning with the word "public," where we suggest a modification or amendment of the statute to read: “disbursed to nonpublic and nonsectarian." So we suggest only the interlineation of three words which would avoid the inevitable conflict that would result if the amendment is not made between the express language of this bill and the declaration of the Supreme Court of the United States in the Everson case.

New Jersey cannot consistently with this establishment-of-religion clause of the first amendment contribute tax-raised funds to the support of any institution which teaches the tenets and faith of any church. We say that that language is a caveat by our highest tribunal, of this proposed bill unless it be amended in the way we have suggested, namely, to add three words which would avoid any objection

to the bill on the ground that it would be unconstitutional, as permitting direct aid to ecclesiastical denominations.

It is true the Supreme Court in the language that I have quoted says the State of New Jersey can not consistently with the establishment of religion clause of the first amendment contribute tax-raised funds to the support of an institution which teaches the tenets and faith of any church. While that language is in express terms an inhibition against the State of New Jersey, and by consequence, in view of the language of the first amendment, an inhibition against any other State, yet we must bear in mind that while the first amendment in terms constitutes an inhibition or prohibition against Congress in the following language: "Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof, yet we now know that the Supreme Court in decisions primarily having to do with the fourteenth amendment has brought the entire inhibitions or provisions of the Bill of Rights down to the broad language of the fourteenth amendment, so that by successive adjudications of the Supreme Court of the United States, beginning with the case of Cantwell versus Connecticut, 310 U. S. 296, it is held that the fourteenth amendment to the Constitution makes applicable to the States the prohibition of the first amendment. So that while this bill, No. 472, undertakes to create a situation whereby Federal tax money may, under such procedure, go to nonpublic schoolswhich of course, would include all ecclesiastical schools-while it would do that and leave it to the State, the State law, we will say, to settle that question and then equalize it, yet the Congress of the United States may not thus put this responsibility of invading the mandate of the first amendment upon the States, because the sixth article of the Constitution would seem to dispose of that proposition, which provides that the Constitution and laws of the United States shall be the supreme law of the land and if anything comes in conflict with the laws of the United States, then we go back to the Constitution to say whether the law is inconsistent with the supreme law of the land.

I expressly refrain from any discussion of the merits of this bill apart from that single consideration. Broadly, like many others, I am in favor of strengthening the educational program throughout this Nation, but am not prepared to discuss any other provisions of the bill.

Senator AIKEN. Thank you, Mr. Jackson. Are there any questions? Senator DONNELL. Mr. Jackson, you were quoted on yesterday by Dr. J. M. Dawson, Executive Secretary of the Joint Conference on Public Relations, who made a statement, in substance, to this effect before this committee: "The Congregationalists and Unitarians of Massachusetts, meeting in State Convention at Boston yesterday, listened approvingly to Mr. E. Hilton Jackson of Washington, D. C., as he set forth the reasons why such-" I think by "such" he meant Federal- "tax funds should not be made available to sectarian institutions."

I will ask you, did you speak to that group in Boston day before yesterday?

Mr. JACKSON. I did.

Senator DONNELL. And the question was asked of Dr. Dawson whether or not any resolutions were adopted by that convention of

Congregationalists and Unitarians in Massachusetts on this general subject, and he thought, as I remember it, that you could give us information as to whether any such resolution was passed.

Mr. JACKSON. If I may answer that directly, I am not aware that any resolution of express endorsement was passed, if it was passed. I was not there at all of the sessions.

Senator DONNELL. But you did address the convention?

Mr. JACKSON. I did address the convention, and the only expression of approval or comment that I heard in the convention on my address was made by the president of that convention, to the effect that both he as president of the convention, and the convention at large, were very much indebted to me for my discussion of the subject.

Senator DONNELL. Thank you, Mr. Jackson.

(Mr. Jackson submitted the following memorandum:)

MEMORANDUM OF E. HILTON JACKSON IN RE: THE UNCONSTITUTIONALITY OF PART OF SECTION 6B, AND SUGGESTING AN AMENDMENT WHICH WILL BRING SAID SECTION WITHIN THE MANDATE OF THE FIRST AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES

The first amendment to the Constitution provides:" Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof * * * ""

The Supreme Court of the United States has recently on a number of occasions (Cantwell v. Conn., 310 U. S. 296, and other cases) held that the fourteenth amendment to the Constitution makes applicable to the States the prohibitions of the first amendment. In the recent case of Everson versus Board of Education, No. 52-October Term, 1946, decided February 10, 1947, the Supreme Court laid down some additional principles relating to the first amendment that have a direct bearing upon the proposed legislation to give Federal aid to educational institutions.

In the Everson case the Court decided definitely and conclusively as to what the "establishment of religion" part of the first amendment means. The Court held unequivocally that it applied to the educational activities of the religious organizations as well as to their purely church activities and that public funds (i. e., tax money) could not be used to aid or support sectarian schools.

While the members of the Court disagreed as to the application of the first amendment to the payment direct to children to secure their transportation to school, there was no disagreement on the fundamental principles which the Court laid down in interpreting the first amendment as meaning the "asbolute separation of church and state" in educational matters as well as in other functions of the church. In the "heart of the decision" of the majority to which there was no dissent (except that the language should be more emphatic and the basis of it explained more fully), the Supreme Court said:

"The 'establishment of religion' clause of the first amendment means at least this: * * * 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. * *

*

That

"The first amendment has erected a wall between church and state. wall must be kept high and impregnable. We could not approve the slightest breach."

It seems abundantly clear from this decision of the Supreme Court that direct support to religious organizations for their school activities would be violative of the first amendment and that all the Justices of the Court would agree to that proposition. In view of this, we suggest that the apparent unconstitutionality of part of Section 6 B be removed by inserting in line 6 on page 7 of S. 472 after the word "nonpublic" the words "and nonsectarian". It would seem like flying in the face of the unanimous view of our highest Court to direct now that Federal funds-and indirectly suggest to the States that it would be proper for them to use State funds-be disbursed to sectarian institutions and in turn disbursed by the officials of such religious institutions for their activities.

By providing that the money should not be used for sectarian purposes, as we suggest, we would remove this objection and prevent a question of constitutionality arising every time any State requested Federal funds or disbursed them.