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STATEMENT SUBMITTED BY C. STANLEY LOWELL, ASSOCIATE DIRECTOR OF PROT

ESTANT AND OTHER AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE

Our concern with the proposals for Federal aid to higher education is exclusively with the church-state problem. We would not care to see this, or any Federal aid program, used as a means to provide public subsidies for church institutions.

Anyone familiar with the history of college aid legislation in recent years can observe that such legislation, under the welfare banner, is being used to breach the wall of separation between church and state and that the breach is becoming larger and larger. I should like to quote a statement from Senator George R. Metcalf which he made to the New York Legislature in commenting on a scholarship grant program endorsed by Governor Rockefeller. I believe his comment is not irrelevant to legislation of the kind before you. He said :

“These projected awards bear only the slightest relationship to scholastic ability *

* *. [This is not] a bona fide scholarship plan based on intellectual attainment nor is it intended to be. It was changed from its original idea of an indiscriminate gift simply to get around the bar of aiding private colleges with public funds, which the New York Times called shocking * * *.

“There are some who, wishing to avoid the issue, prefer to brush it under the rug in hope of forgetting it. But there is no rug large enough to hide it. Whatever is done this year will be the prelude to further demands next year and the year after. If the principle is established this year of providing tuitional grants in the disguise of a scholarship program, then the gates can be pried open for ever larger contributions in years to come.”

It is our position that all programs of direct grants or loans to church colleges are unconstitutional. We clarify this statement, first, by a proper identification of a church college. We suggest three criteria : (1) Ownership of property—is the property owned by a religious denomination or a religious organization ? (2) The governing board-is the governing board or any portion thereof appointed by a religious denomination or a religious organization? (3) The purpose is its announced purpose to teach and propagate a certain religion? If the institution qualifies on any two of these counts, it should be deemed a church institution and as such should be disqualified for participation in Federal grant or loan programs.

Authentic public institutions, publicly controlled, open to all and free of sectarian control are directly related to public responsibility. There would be no constitutional objection to the participation of such institutions in Federal aid programs.

The basis of our constitutional objection to Federal aid to church colleges is that such institutions are a creature of the church which establishes and maintains them. They exist for the purpose of propagating the beliefs which are peculiar to that church. They exist for the purpose of advancing the cause of that church in the mind of the student and in the culture of the Nation. Indeed, we have never seen a catalog of a church college which failed to stress this fact. For example, in the Bulletin of St. Louis University, an institution of the Roman Catholic Church operated by the Jesuit order, it is set forth that one of the “broad objectives” of the Jesuit college is to impart “the command of the great religious truths, which contain not only the laws of personal responsibility, but which give meaning and coherence to the whole of life. Emphasis is placed upon the development of habits of living Catholicism as a creed, a code, and a culture. This end is sought through the content and teaching methods in the religious courses, through the interpretation of Catholicism in all fields of study, through the influence of a faculty chosen to advance this objective, and through the exercise of a living Catholicism in the various functions and activities provided as an integral part of the educational program."

This is quite in keeping with the purpose of religious schools as set forth by Pope Pius XI in his 1929 Encyclical, “Christian Education of Youth :" "* * * with full right the church promotes * * * schools and institutions adapted to every branch of learning and degree of culture. Nor may even physical culture, as it is called, be considered outside the range of her maternal supervision, for the reason that it also is a means which help or harm Christian education.” We contend that there is no difference in substance between Federal aid to churches and Federal aid to institutions which are admittedly integral to churches.

The churches themselves have from time immemorial insisted that their colleges were directly related to their entire denominational program. In the case of the 28 Jesuit colleges of the Roman Catholic Church every member of the governing board of such institutions is a Jesuit priest. Only the Roman Catholic faith is taught to the exclusion of other faiths and every subject is avowedly permeated with Catholic dogma. It is well known that the Roman Catholic Church has a denominational rule, Canon Law 1374, which requires all parents of this faith to send their children to a religiously segregated school of this denomination unless the bishop is willing to permit an exception. What is not generally known is that the same rule applies also to education at the college level. Last summer Cardinal Joseph E. Ritter, archbishop of St. Louis, applied this canon to Roman Catholic students of his archdiocese. In his order published in the New York Times June 19, 1960, Cardinal Ritter stated that “parents and students have the grave responsibility of choosing Catholic colleges where the atmosphere and the teaching are conducive to the proper end of Christian (Roman Catholic) education." His order required all Catholic students to attend Roman Catholic colleges unless they obtained written permission after a written application to his office.

In publishing an order forbidding Roman Catholic students to attend nonCatholic colleges unless they had a Newman Foundation on the campus, Archbishop Edward F. Hoban of the Celeveland diocese declared that “only the (Roman) Catholic college nd university is fully capable of giving our young men and women the (Roman) Catholic education so necessary in meeting to day's responsibilities in the community and the home. * * *" (Lorain, Ohio, Journal and other papers, Sept. 6, 1958.)

We have heard the strange argument advanced here that certain Federal loans-particularly those which have gone for dormitory construction at sec. tarian colleges can be considered constitutional. The fact is that no court has ever made such a ruling. The probable reason why such an issue has never come before the Supreme Court is the difficulty encountered by a humble taxpayer in getting it there. The Supreme Court has strictly limited the right of individual taxpayers to file suit in Federal court unless they can show a damage over and beyond that claimed merely as a taxpayer. If a wider loan program were to be approved by Congress, it is likely that this program might encounter like difficulty in coming before the Court.

It is argued that the use of Federal funds to erect buildings for medical schools on the campuses of sectarian colleges is precedent for general aid programs to such institutions. Here, again, there has been no constitutional challenge though such aid might well be unconstitutional in fact. A strong argument can be made for such aid to medical training under the welfare concept, though the chances of a constitutional violation are substantially increased in the case of a medical school which operates under a restrictive medical code that denies generally accepted therapies to patients and physicians. Following the Supreme Court decision on the Connecticut anti-birth-control law, it may well be possible to bring such an issue to the Court's attention.

Even the loan program for dormitories is a dubious welfare concept. Some argue that students must live somewhere and that a housing program for church related campuses might possibly stand as a phase of a larger housing program. But is it public housing? Erection of classrooms, chapels, libraries, and other instructional buildings could not remotely be considered as mere welfare aids since the activities carried on in such facilities would relate to the very heart of the sectarian concerns for which such institutions exist.

In the Everson case (1947) the language prohibiting Government aid to church institutions is so comprehensive that it rules out under the first amendment any general loan program for sectarian colleges. Its proscription of any financial aid to “any religious activities or institutions whatever they may be called, or whatever form they may adopt to teach or practice religion,” rules out loans or grants for classrooms in which religious teaching would take place. The Everson decision forbids Congress to "pass laws which aid religion." Would not the proposed general loan program for sectarian colleges be just such a law?

Again, the Federal Government is forbidden to participate in the affairs of any religious organizations or groups or vice versa. Does not one's banker participate in his affairs? How, then, can the Federal Government mount a loan program for these church colleges without doing so?

We turn now to the scholarship program. We believe that the basic concept of this program is acceptable so far as the church-state problem is concerned. Scholarships won in genuine academic competition under disinterested auspicesand certainly not under the auspices of the institutions involved-could be receive

able in any institution of higher learning which the individual might choose. We could wish that the terms under which the State agency would function in determining scholarship winners “in accordance with objective tests and other measures of ability and achievement” might be spelled out more specifically. The language here is vague and might permit of criteria other than ability in selection of winners.

We are apprehensive over the wide operational latitude which this legislation would convey to the vaguely defined administrative agency. We see in this part of the proposal the live possibility of clerical-political boondoggling in the determination of scholarship awards. The possibility is here for strong political influence on the awarding group by church educators at the secondary and college levels to qualify their students and institutions as recipients without disinterested merit competition. Church-state separation can be lost in such vast expanses of administrative latitude. We think the legislation leans so far backward in avoiding Federal control that it invites intrastate abuse.

We suggest an amendment at this point in the legislation which would eliminate as recipients any students preparing for the ministry of religion. Scholarships for such students should be specifically ruled out since it is not in the province of Government to finance training of ministers and priests. In support of this suggestion we should like to call attention to an abuse of the program of fellowship grants in connection with the National Defense Education Act of 1958. Under this program fellowship grants were made to students preparing themselves for the teaching or preaching ministry of religion at Union Theological Seminary in New York City, an interdenominational seminary, and at Emory University, a Methodist institution, and other church universities. Their fields of study were definitely religious studies, being such studies as psychology of religion, homiletics, pastoral counseling, Biblical studies, and the like. It is our understanding that both the institutions named have had such a backwash from their own constituency that they have agreed to receive no more fellowships for religious studies. The danger to church-state separation in such grants is, however, obvious. We believe that fellowships as well as scholarships should be denied for religious personnel and religious studies. Discrimination this can be termed, but it is a part of the price the churches should pay for their independence from the state and for their status as free, voluntary societies.

In regard to the provisions for “cost of education allowances” we raise serious questions. These allowances are related to the scholarships theoretically, but the relation seems to be rather nebulous. This could be the occasion of abuse. The scholarship amount is any amount not to exceed $1,000, the exact figure supposedly to be determined by some kind of need appraisal. Actually, there seems to be nothing in the legislation which would bar a State agency from giving, say 10 scholarships of $100 each rather than 1 of $1,000 per year. Each of the scholarship awards could thus, apparently, draw an automatic $350 grant to the institution admitting the student. Conceivably then, the scholarship program might work as a conduit to channel Federal funds into church institutions. We can appreciate this danger when we observe what has happened in New York.

There, in anticipation of tuition grants for students in private colleges, most of these institutions have already raised their tuition by the very amount the student is to receive from the State. Thus the conduit principle is made obvious. The language here is too loose for comfort.

That aside, it is our belief that any direct grants of this nature to church colleges would be unconstitutional as aid to religion. We believe that any scholarship aid should attach itself directly to the student and should not go to the institution as such.

We should like at this point to sound a note of warning as to what the Congress may expect in the future should it take on the function of subsidizing sectarian colleges. Once commenced, this course will admit of no retreat. Any reduction in the amounts will mark Congressmen for political reprisal and provoke criticism by the clergy that they are “against God.” These subsidies however modestly begun can only lead from more to more.

In closing I should like to recall the remark about the difficulty in reaching the Supreme Court on some of these issues where constitutionality is generally admitted to be in doubt. As a result of Massachusetts v. Mellon (1923) and the Elliott case (1928) the right of a taxpayer to seek redress in a Federal court has been curtailed. His taxpayer's interest has been adjudged insufficient to form the basis of an appeal to the preventive powers of the court. If legislation providing general loans and grants to sectarian colleges should become law, every effort would be made to assure a proper test as to its constitutionality. Because of these obstacles, however, many constitutional lawyers doubt that such a test could ever be made. If their fears have warrant, then the spotlight is thrown squarely on Congress itself. Constitutionality becomes as valid a consideration for the Congress as for the courts and there can be no shifting of this responsibility to the courts alone. Congress must assume responsibility to uphold the Constitution as to its church-state provisos. Legislation which is of dubious constitutionality should not receive the support of those who are concerned to defend and uphold the Constitution.

HOUSE OF REPRESENTATIVES,

Washington, D.C., March 14, 1961. Hon. EDITH GREEN, Chairman, Select Committee on Education, House Office Building, Washington,

D.O. DEAR COLLEAGUE: I have received a communication from Chancellor William Brantley Aycock, the University of North Carolina, Chapel Hill, N.C., who under date of March 10, writes me as follows:

“Although there is reason to be encouraged by President Kennedy's proposals for Federal assistance for higher education, I am extremely concerned about the omission of a grant program for educational facilities. The enrollment of the University of North Carolina at Chapel Hill has increased 1,700 students over the past 4 years. It is quite apparent that public institutions will have to absorb a substantial portion of the inevitable enrollment increases during the next few years. Although public institutions have profited from the loan program for dormitories and cafeterias, we do not know of any feasible way to selfliquidate classrooms, library, and laboratory facilities. I sincerely hope that it will be possible for Congress to combine a grant program for educational facilities with the loan program.”

Inasmuch as hearings on H.R. 5266 are, I understand, to begin in your subcommittee on Thursday, I felt you would be interested in Chancellor Aycock's letter, and I trust that the matter will be discussed during your subcommittee's consideration of the legislation to assist colleges and universities. With kindest regards and best wishes, I am, Sincerely yours,

HORACE R. KORNEGAY.

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INDIANA UNIVERSITY,

Bloomington, Ind., March 20, 1961. Hon. ADAM CLAYTON POWELL, Chairman, Committee on Education and Labor, House of Representatives,

Washington, D.C. DEAR REPRESENTATIVE POWELL: I am taking the liberty of writing to you with reference to legislation now pending before the Congress and concerned with Federal assistance for the construction of academic facilities at colleges and universities.

I should like to join others in urging you to support the inclusion in such legislation, if enacted, of a provision for grants as well as loans. Inclusion of a provision for grants is necessary if public institutions, as well as private istitutions, are to benefit properly and fairly from such legislation.

In this State, for instance, State-sponsored colleges and universities do not have authority to borrow for academic, nonrevenue producing structures. In States where public institutions do have such authority, they can borrow only by pledging, in payment of interest and principal, anticipated income from tuition and student fees. Such a practice obviously would lead to a sharp rise in educational costs to students at our public colleges and universities.

The construction of academic buildings at such institutions through the use of tuition and student fees, therefore, is contrary to the principle of low tuition at our public institutions of higher learning-which in turn is basic to our American system of public education and our American faith in equality of opportunity through public education.

While many private institutions, in keeping with their own and different traditions, may prefer a system of loans, public institutions on the other hand would be better served by a system of grants, outright or on a matching basis. We ask, therefore, that in fairness to each type of institution and its unique traditions and purposes any legislation concerned with Federal assistance for the construction of academic facilities provide for a combined system of loans and grants to colleges and universities. Sincerely yours,

HERMAN B. WELLS, President,

THE UNIVERSITY OF CALIFORNIA,

Berkeley, Calif., March 21, 1961. Hon. ADAM CLAYTON POWELL, Chairman, Committee on Education and Labor, House Office Building, Washington, D.C.

DEAR REPRESENTATIVE POWELL: We have followed with much interest the recommendations of President Kennedy for Federal assistance to higher education. Except on one major matter, they are in accord with the positions taken over the years by the State Universities Association and the American Association of Land-Grant Colleges and State Universities.

The exception concerns Federal aid for construction of academic facilities. The program proposed by President Kennedy calls for loans only. We urge that grants to be matched by the recipient institutions also be made available. Many public institutions will experience difficulty in making the pledges and in increasing students fees required for amortization. In fairness to both private and public institutions, we urge that a dual program of loans and grants be authorized.

Your help is sought in seeing that the legislation adopted takes into account the special difficulties that public institutions will face in accommodating to a loan plan, and that it provides the alternative of a matching grant plan for those that prefer it.

A copy of the resolutie of Federal support to colleges and universities, which was adopted by the coordinating council for higher education, is attached. This represents the official position by the California agency in which all segments of higher education, public and private, are represented. Sincerely yours,

CLARK KERR.

RESOLUTION ON FEDERAL SUPPORT OF HIGHER EDUCATION, ADOPTED JANUARY 5, 1961

Whereas American higher education, public and private, will be confronted during the 1960's with increased responsibilities and rising student loads that will exceed resources presently available; and

Whereas the Federal Government has in the past served the general welfare of the Nation by aiding higher education, directly and indirectly, through such means as provided in the Morrill Act, the GI bill, the National Defense Education Act, and the college housing loan program; and

Whereas the new national administration, by platform plank and specific statements has indicated its intention to assist the colleges and universities meet their growing responsibilities; and

Whereas the coordinating council for higher education, established by the State of California in the Donahoe Higher Education Act of 1960, and consisting of three representatives of each of the four segments, the junior colleges, State colleges system, University of California, and independent colleges and universities together with three representatives of the general public appointed by the Governor-is called upon to advise on the planning of orderly develop ment of higher education in California to accommodate by 1970 at least double the present number of students : Now, therefore, be it

Resolved, That the Coordinating Council for Higher Education of the State of California respectfully requests the appropriate California authorities to urge President-Elect John F. Kennedy and the 87th Congress to consider the following forms of aid to higher education:

(1) A program of grants-in-aid subject to such matching funds as may be required by Federal statutes from sponsoring State, district, or other institutions, and long-term loans at low interest rates for constructing and equipping college and university buildings and related facilities for general undergraduate and graduate instruction and research.

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