FEDERAL AID TO EDUCATION

TUESDAY, APRIL 22, 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), Ellender, and Hill.

Senator Aiken. The committee will come to order. Our first witness this morning is the Reverend Thomas B. Keehn of New York. Mr. Keehn, will you identify yourself, tell us whom you represent and then proceed with your testimony?

STATEMENT OF THOMAS B. KEEHN, LEGISLATIVE SECRETARY, COUNCIL FOR SOCIAL ACTION, CONGREGATIONAL CHRISTIAN CHURCHES, NEW YORK, N. Y.

Mr. KEEHN. Mr. Chairman and Senators, I am the legislative representative of the Council for Social Action of the Congregational Christian Churches.

We appreciate the opportunity to appear here this morning in relation to this bill on Federal aid to education. Our testimony is directed particularly to Senate bill 472, and to certain sections of that bill. The church organization which I represent has had a long record of interest in education, public and private. A string of colleges reaching from coast to coast, Harvard, Yale, Williams, Amherst, Mount Holyoke, Oberlin, Knox, Grinnell, Carleton, and on to the west coast, Pomona, Scripps, Whitman, testify to this interest. All of them were founded by congregational ministers and laymen, and none of them today is subject to any kind of church control.

The same could be said of more than 600 schools for Negro people, beginning with Howard University, and likewise for more than a century we have encouraged, worked for, and believed in public education, and using the wealth of the State to educate all of the citizens, as the indispensable foundation for a democratic society. Today, our church believes that the public welfare can and must be furthered by social legislation in the field of education. This means Federal financial aid to the States. May I quote from the general council of our denomination meeting in June 1946:

We recommend that it be established as a national policy that all children are entitled to the best possible education that is or may be organized, administered, and financed by the several States, and that Federal funds be allocated to the several States on the basis of need, and further, without discrimination as to race; that any such funds shall not be used to promote private or secondary educational methods or institutions. To this end we support in principle any Federal legislation to achieve this objective.

We say this, that we believe in Federal financial aid to education dogmatically, because we believe the facts prove that it can and must be done without endangering the system of public education. In fact, we believe that failure to act, failure to provide Federal financial aid may jeopardize the system we seek to save.

Educational deficiencies, population mobility, variations and economic resources, and most of all the deplorably inadequate salaries of teachers, supplies and equipment, which characterize many of our public schools, all of these facts prove the need, as evidenced by the study of such experts as Dr. Norton, whom you heard yesterday.

May I say briefly that Senate 472 generally seems to us to provide the framework for a sound program. Perhaps some sections need to be modified, in view of changed conditions altering the formula somewhat as to some of the provisions made. Representative McCowen's bill, H. R. 2953, may be better, but nevertheless, the general plan we earnestly support, and urge a favorable report to the Senate.

We are concerned about only one point and wish to emphasize this in the remainder of our time. Federal financial aid can be provided to the States for educational purposes without control. It must be so. We recognize that this is the motive behind section 6 (b) of S. 472, to avoid Federal control. It says that if the several States use their own funds for aid to aid private schools they may use Federal funds in the same manner. We submit that this is a complex and not a simple problem, for any use of public funds to aid private schools is, in a sense, or in part, an abridgement of the first amendment to the Constitution, which prohibits the establishment of religion in the United States.

The problem can be stated in this way: S. 472, section 6 (b), does not itself create any new violation of the constitutional provision requiring separation of church and state. It does acknowledge and sanction certain violations which have developed in some States and very indirectly encourages these violations in others. It does this for the purpose of avoiding Federal control. The question is, is it worth the price? Is it necessary? Is it right, in view of our constitutional limitations?

As we have said, this is a complex social and legal problem. It has been discussed recently and at great length in the courts and in public groups. Public funds have been used to aid private schools under the so-called child benefit theory, which theory uses often the slogan: "The tax money where it is must be used to educate children where they are."

I think that has been upheld in some State courts and denied as unconstitutional in others. Some said programs for health, safety, transportation, certain nonreligious books and supplies, have been approved under the general welfare clause of our Constitution. The courts generally distinguish between direct aid to building—that is, to teachers' salaries, buildings, and so on-and indirect aid for transportation, supplies, and the like. The New Jersey school bus case, which was recently decided by the Supreme Court, in the way of illustration, approved only the latter, that is, indirect aid, and it should be noted that it approved this indirect_aid only to certain kinds of private schools, and even this and here I quote the Supreme Court decision-"verged upon the limits of the State's constitutional

powers. The question-" the words there are "verged upon." The question is, how close can you get and still be constitutional? In the brief time remaining, all we can do is make certain assertions which to us seem to state the proper interpretation of this problem.

First of all, we believe that Federal aid is necessary and that it can be supplied to the States without Federal control.

Secondly, we object to any financial aid, direct or indirect, to private schools. We support health and safety protection for all children, including those that go to private schools, and States must recognize private schools if they meet certain standards, providing adequate education, but parents who choose to send their children to such schools must pay for this privilege.

It is asserted that section 6 (b) of Senate bill 472 is to avoid Federal control. We assert that it is a mixture of at least three legal questions: Federal control, establishment of religion, and concern for the general welfare. We could ask an impertinent question, perhaps, on this matter of Federal control. Section 7 (a) of S. 472 sets standards for the use of Federal funds for States, which may not separate schools for different races. It requires the use of funds on a per capita basis. This is fine. It is as it should be, but it is a change from the policies in some States which use State funds for separate schools on an unequal basis. Is it not Federal control to require the use of these Federal funds in the States on an equal per capita basis, and would it be any more control to assert that only public schools shall receive the benefits of Federal funds, regardless of the policy in the State?

In view of this, we say that we will support public education, using the resources of local communities, States, and the National Government, and we will work against State laws which permit the use of public funds for private schools.

We are critical of the Supreme Court decision which makes legal the use of tax funds for certain purposes. We are unhappy about the provisions of 6 (b) of S. 472, yet we will and we do want to support Senate bill 472.

We raise questions about section 6 (b). We realize that they are questions which must ultimately be answered, not in the Congress of the United States but in the several States and in the courts. Congress could help us by expressing a point of view, by discouraging further verging upon constitutional prohibitions, and, if it chose, to omit section 6 (b). But whatever happens, the church group intends to work for Federal aid to education, to support public education and to oppose any State laws and court decisions which violate what we believe to be constitutional prohibitions on the establishment of a religion. We will seek to build up and not tear down what we believe to be important, one important aspect of our democratic life, that is, a wall between church and state in the field of education.

Senator AIKEN. Are there any questions?

Senator ELLENDER. Mr. Keehn, I imagine you would be willing to let this matter rest with the courts, and as you have just indicated, I think you should direct your efforts to seeing to it that the States themselves do not make it possible to use public funds for private schools, nonpublic schools. I would say that in my State of Louisiana we have a constitutional prohibition against the use of public funds for private schools, and I am in agreement with you that we should not foster that

here, but I do not see how that is possible unless we transfer the control from the State back to the Federal Government. That I do not believe you would want to do.

Mr. KEEHN. No, we would not. And I agree with you that this is essentially a State problem. If this provision had been omitted from the bill, section 6(b), we believe it would set a good example, we might say, to the States.

Senator ELLENDER. Even though it were eliminated, it would not prevent the States from utilizing these funds for that purpose.

Mr. KEEHN. No, it would not, and it could not.

Senator HILL. Let me ask you this question. Have you read the decision of the Court in the New Jersey bus case, Everson versus Board of Education of the Township of Ewing? Have you read that decision?

Mr KEEHN. Yes, I have.

Senator HILL. You notice that the Court concludes the decision with these words:

This Court has said that parents may, in the discharge of their duty under State compulsory education laws, send their children to a religious rather than a public school if the school meets the secular educational requirements which the State has power to impose. See Pierce v. Society of Sisters (268 U. S. 510).

I take it you have no disagreement as to this part?

Mr. KEEHN. No, we do not.

Senator HILL. And the decision goes on:

It appears that these parochial schools meet New Jersey's requirements. The State contributes no money to the schools. It does not support them. Its legislation, as applied, does no more than provide a general program to help parents get their children, regardless of their religion, safely and expeditiously to and from accredited schools.

I take it you disagree with the Court on that?

Mr. KEEHN. We think it does, in effect, do more than that, yes. I think in Justice Jackson's dissenting opinion he says that while it is obviously the intent, in part, to provide for what we might call the general welfare of children who are going to these schools, by such statutes, nevertheless, it is also true that some children would go to those private parochial schools in many cases who otherwise would not go to such schools. That is, it is an encouragement to them to go to private schools rather than to go to the public schools; and that, we believe, borders upon a more direct kind of aid to those private schools. And I think that in the New Jersey case it should be also pointed out that the only schools that are so qualified under the statutes of the State are certain Catholic schools. A large number of other private schools are not encompassed at all within the statute or within the decision of the Court on that matter.

Senator HILL. The Court concludes by stating:

The first amendment-meaning, of course, the first amendment to the Federal Constitution— 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. New Jersey has not breached it here.

You do not agree, then, with the conclusion of the Court? Mr. KEEHN. Well, we would simply say, without trying to question the high court of our land, that we would again refer to this phrase which the Court itself used in the decision, namely, that this statute in

the New Jersey case verges upon the constitutional limitations of the powers of the State government. Now, how close can you verge and still be constitutional? We think that even the Court had some serious questions in its mind about this matter, and we think that is proven further by the four distinct opinions. It is a very complex and controversial question. We do not believe this is the place or time to be dogmatic about this, but we do seriously want to underline this problem as something that we are concerned about, making, however, our primary emphasis, as I have said in answer to Senator Ellender's question, that we realize that this is a State problem essentially. And more than that, we would still like to leave the effect of our testimony to indicate that we are for a program of Federal aid to public education. We cannot stress that too much.

Senator AIKEN. Mr. Keehn, if it should develop that the enactment of any Federal aid to education legislation depends upon the inclusion of the provisions of 6 (b), would the Congregational Council still oppose it?

Mr. KEEHN. No, we would not oppose the bill finally on that point. Senator AIKEN. I thought that would be your decision. Furthermore, you are probably familiar with the situation in New England, in my own State of Vermont, which has a great many private schools that are private schools in name only. They are the old academies established originally by the churches, the Baptist Church, Congregational Church, Methodist Church, and some parochial schools. In many cases they serve as the public high school. I can name many instances where, if it were not for these private schools which receive public support, pupils in such an area would have to go as far as 20 miles to the nearest public high school. In such cases don't you believe that public aid is warranted? I live about a mile from a private school which is non-sectarian, and 14 miles from the nearest public high school. Isn't it better for the local community to pay $100 a year tuition for the children who attend that school than it is to pay $100 tuition and send them 14 miles and pay transportation, and be assured that they will not have the opportunity to study that they would have if they could attend a school in their own town, although the school is technically a private school?

Mr. KEEHN. The key word, Senator, I think is "technically", is it not?

Senator AIKEN. Well, this particular school is actually a private school, a non-profit private school, exempt from taxation.

Mr. KEEHN. Our answer to that, in part, is that we believe that Federal aid is necessary to that the State may build up a really adequate and inclusive program of public education. That is one of the real objectives behind the whole program of Federal aid to education, as we understand it.

Senator AIKEN. Since there is no Federal aid, the percentage of pupils attending private schools is rapidly increasing, from the very fact that the public schools are just so bad that in many localities, anyone who can afford to do so, takes his children away from the public school and sends them to the private school.

Mr. KEEHN. Let us hurry up and pass this bill, Senator.

Senator AIKEN. Over 10 percent of the children are now attending private schools, and it is anticipated that that number will rise another