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B. General educational loans to private nonprofit elementary and secondary

schools It has been suggested that even if grants to sectarian elementary and secondary schools are unconstitutional, long-term low-interest loans would not be. While we believe that loans constitute a less substantial assistance to religion than outright grants, we are persuaded by the decisions of the Supreme Court that this proposal is no less a form of support than grants and is equally prohibited by the Constitution. Loans are prohibited by the rationale of the Everson decision, and this conclusion is reinforced by McCollum, where the Supreme Court declared unconstitutional the provision of classrooms in a public school for religious instruction during “released time.” 17 No measurable cost to the Government was involved in the use of such facilities, yet the Court held that the use nonetheless constituted assistance to religion by a governmental entity in violation of the establishment provision.

Low-interest across-the-board construction loans do provide measurable economic benefit to religious institutions. Moreover, there is a total failure in this proposal to distinguish between those aspects of a school which are involved with religious teaching and those which may not be. This combination of factors when applied to elementary and secondary schools places the proposal beyond the limits of permissible assistance. C. Special purpose programs

The Federal Government at present engages in a wide variety of statutory programs that have some impact on sectarian educational institutions. It is significant that the great bulk of Government-supported programs is in fields of higher education. Examples are aids for specialized training; or research connected with national defense, public health, or improving educational methods; or loans for college housing facilities or to permit needy students to attend college. In all such programs no direct connection with religion is present, and the funds in each case appear adequately separated from any religious function to stay within constitutional bounds.

Existing Federal programs at the elementary and secondary level are less extensive in number and size. Typically, such programs either bear a clear-cut relationship to children's health or promote a special purpose with a clear national defense implication. These programs are devoid of any substantial aid to the religious function, and such aid as might possibly occur is both remote and unavoidable.

To what extent a special purpose provides constitutional legitimacy to assistance to elementary or secondary schools depends on the extent to which the specific objectives being advanced are unrelated to the religious aspects of sectarian education. The problem is complicated because assistance for one purpose may free funds which would otherwise be devoted to it for use to support the religious function and thus, in effect, indirectly yet substantially support religion in violation of the establishment clause. At the present time, the National Defense Education Act permits the U.S. Commissioner of Education to make loans to private schools to acquire science, mathematics, or foreign language equipment. We believe such loans are constitutional because the connection between loans for such purposes and the religious functions of a sectarian school seems to be nonexistent or minimal. Furthermore, the money

17 Although use of the pressures of the compulsory attendance laws was a factor in the decision, Zorach indicates that use of the school facilities tipped the balance.

18 One seeming exception, more apparent than real, has been the aid given over a 5-year period by the National Institute of Mental Health under 42 U.S.C. 242a to three divinity schools to develop curricula for training clergymen in the recognition and understanding of mental illness. For the purpose of such aid, clergymen along with teachers and lawyers are looked upon as group which frequently deal with individuals in personal difficulty. The development of raining for such groups presents an opportunity to advance the practical utilization of psychiatric knowledge. Such aid would seem to fall, therefore, within the special purpose doctrine.

A more difficult case is the program for the disposal of surplus Government property which includes sectarian institutions. Certainly, measured by the criteria set out in this memorandum, this program has in some instances approached and, it can be argued, has even transgressed constitutional boundaries, In most such cases, however, the property disposed of did not dirrctly benefit the religious programs and training in sectarian schonls. In any event the general language, the long history in similar preceding programs, and the legislative a crnjescence in such disposal make quite clear the intention of Congress that sectarian institutions not be excluded altogether from the benefits of the program.

is loaned at one-fourth of 1 percent above the current average yield on all outstanding marketable obligations of the United States, thus avoiding characterization as more than a grant of credit.

There may be some other special purposes for which loans would be equally defensible, but any specific proposal would have to be evaluated against the criteria discussed above.

In considering whether an existing governmental program or a given proposal for new governmental action exceeds constitutional limits of assistance to a religious institution, no single criterion is necessarily decisive. And none of the criteria we have discussed affords precise units of measurement susceptible of easy application. Nevertheless, each criterion is an aid to judgment. What is least likely to be constitutional can readily be distinguished from what is most likely to be constitutional. In forming a judgment as to legislative proposals in the middle ground, all relevant criteria must be accorded due consideration. Ultimately a judgment is required—not a doctrinaire conclusion as to what should be done or should not be done, but a reasoned consideration of how an imprecise statement of fundamental constitutional principles is likely to be applied to each particular factual situation.

V. HIGHER EDUCATION

This memorandum has discussed first amendment principles, relevant judicial decisions, and criteria for determining the constitutionality of specific legislative proposals all in the context of elementary and secondary education. Since proposals are currently being advanced in the field of higher education, it is appropriate to give consideration to the significantly different context in which any constitutional problem concerning these proposals might arise.

The constitutional principles involved are obviously the same whether the subject is elementary and secondary school education or higher education, but the factual circumstances surrounding the application of the principles are dramatically different. The reasons are largely historical.

The history of education in the United States at the grammar and high school level is largely one of free public schools. While private institutions exist and cannot be constitutionally prohibited, the fact of the matter is that some 85 percent of children in the United States are educated in public schools. The reason for this historically lies both in the public policy perceived in educating children and in the implementation of that policy by making education at the lower levels compulsory. In order to compel the education of children, States were obliged to provide a system of education which was open to all. In addition, it was prohibited to the States to teach religion or to give a religious education in such schools. Whatever other courses might have, in theory or even in fact, been possible, the States chose to implement their policy by a system of free public schools.

The history of college and university education is almost precisely the opposite. While from a relatively early date the Federal and some State governments subsidized State universities and colleges, the bulk of advanced education has until recently been carried on by private institutions, the majority of which have a religious origin.

Primary schooling has long been accepted as essential for every American child, and secondary education is rapidly becoming recognized as almost equally a necessity. Attendance at a university or college on the other hand has always been a matter of individual decision dictated or influenced by the circumstances and preferences of the individual child and his family. Even today fewer than half of the high school graduates enter college on a full-time basis and of these 41 percent are students in nonpublic institutions. I

Reflecting these differences in history and practice State laws everywhere require school attendance of all children for a substantial period of years, whereas, needless to say, there is no corresponding requirement at the college levei. Those children whose parents so elect may satisfy the compulsory attendance laws by atendance at private schools, but they are still subject to compulsion once that election has been made. The election can be reversed if the parents wish to do so—if not immediately, then at the start of the next school

19 The U.S. Department of Health, Education, and Welfare, Office of Education, estimates that of those who graduate from high school 43 percent enter college on a full-time basis and 10 percent on a part-time basis. Of those who do enter, approximately 60 percent eventually graduate.

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term or year—but while the election stands, the child is not absolved from enforced attendance at classes, secular or sectarian as the case may be.

The position of the college student is very different. His attendance is wholly voluntary, not merely a choice between alternative commands of the State. He is mature enough, moreover, to have made the decision to attend college and to select the institution best suited to his career objectives, or at least to have participated intelligently in those decisions. Furthermore, he can better understand the significance of sectarian as compared to secular teaching. At some sectarian institutions he is not required to study religion, but if he chooses to do so, or chooses an institution where religious instruction is mandatory, he is merely asserting his constitutional right to the "free exercise thereof."

There are thus important differences between school and college, not only in terms of history and tradition but also in terms of the compulsory nature of attendance. There are differences, too, from the standpoint of the national interest involved. At the college and graduate levels the public institutions alone could not begin to cope with the number of young men and women already in pursuit of higher education, and expansion of these institutions or the creation of new ones sufficient to meet the expected increase of enrollment is out of the question. The effort which it is agreed must now be made in the field of higher education would, if confined to public institutions, force an ever more intensive selection of students and ever more concentrated effort to guide them into fields of study deemed important to the national defense and welfare. It would likely induce these institutions to overemphasize particular fields of study to the detriment of a balanced curriculum. Such warping of our educational policies is not to be contemplated lightly, and, to the extent that Congress finds it appropriate to encourage expansion of our university and college facilities, Congress must be free to build upon what we have, the private as well as the public institutions.

All these considerations indicate that aid to higher education is less likely to encounter constitutional difficulty than aid to primary and secondary schools. The same considerations apply even more forcefully to graduate and specialized education.

The administration bill to assist higher education authorizes loans to institutions, without distinguishing between public and private ones or between those under secular and sectarian sponsorship. It also provides for college scholarships awarded on a competitive basis. These scholarships may be used at any accredited college which the recipient selects. In addition, the bill provides for the payment to the college of a “cost of education" allowance to supplement the scholarship.

Governmental assistance directly to colleges for the construction and expan. sion of academic facilities perhaps raises, in the case of sectarian institutions, a closer constitutional question than scholarships. Fundamentally the distinction between assistance to sectarian colleges and assistance to sectarian elementary and high schools rests upon differences between the educational system which exists in the United States at the college and graduate school level and the predominantly free public educational system at the elementary and secondary school level. These differences create importantly different factual circumstances against which the criteria previously discussed must be considered to determine the constitutional question.

We are not, at the college level, dealing with a system of universal, free, compulsory education available to all students. The process is more selective, the education more specialized, and the role of private institutions vastly more important. There are obvious limitations upon what the Government can hope to accomplish by way of expanding public or other secular educational facilities. If the public purpose is to be achieved at all, it can only be achieved by a general expansion of private as well as public colleges, of sectarian as well as secular ones.

Loans for construction of facilities may be less constitutionally vulnerable than grants for the same purposes. But this distinction is not here the only one or perhaps even the crucial one. More important are the distinctive factors present in American higher education: the fact that the connection between religion and education is less apparent and that religious indoctrination is less pervasive in a sectarian college curriculum; the fact that free public education is not available to all qualified college students; the desirability of maintaining the widest possible choice of colleges in terms of the student's educational needs in a situation no longer limited by the necessity of attending schools located close to home; the extent to which particular skills can be imparted only by a

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relatively few institutions; the disastrous national consequences in terms of improving educational standards which could result from exclusion of, or discrimination against, certain private institutions on grounds of religious connection; and the fact that, unlike schools, the collegiate enrollment does not have the power of State compulsion supporting it.

All of the foregoing factors related to higher education are, of course, relevant to the scholarship grants. In addition, the decision as to which college is attended is entirely controlled by the student.

The additional cost-of-education grant paid to the institution is also, in effect, closer to a scholarship than a grant to support the institution chosen. Tuitions vary among colleges owing both to cost differentials and the size of endowment and annual private or public subsidy, but invariably the cost of education exceeds the tuition charged. It is to take account of this fact that the scholarship grant is supplemented by a cost-of-education allowance. In essence, it too is subject to the student's, not the Government's educational choice.

The payment to the institution is in reality merely a supplement to the scholarship, no less valid constitutionally than the scholarship itself. To regard such payments as unconstitutional would make the question of who receives the payment the one decisive criterion and sacrifice substance to form.

Weighing all these factors, we conclude that the administrations proposals for higher education are within constitutional limits.20

VI. JUDICIAL REVIEW

The constitutionality of existing Federal legislation which confers some incidental benefits upon sectarian educational institutions has never been tested in the courts. Federal spending legislation ordinarily carries no provisions for judicial review. In the absence of such provisions, the only challenges to spending legislation usually come in the form of suits by individual taxpayers. These litigants lack standing sufficient to sue in a court of the United States, and, where a party to a lawsuit lacks sufficient standing, there is no “case or contro versy" which the Federal courts may decide. This requirement of a “case or controversy” is imposed upon the Federal courts by article III of the Constitution, and there appears to be no way in which legislation can dilute this requirement.

The Federal rule with regard to standing to sue on the part of a taxpayer was established in 1923 in the case of Massachusetts v. Mellon (262 U.S. 447), and is significantly different from the position of a taxpayer in a municipality. In that case, Mr. Justice Sutherland distinguished the two positions as follows:

“But the relation of a taxpayer of the United States to the Federal Government is very different. His interest in the moneys of the Treasury—partly realized from taxation and partly from other sources—is shared with millions of others; is comparatively minute and indeterminable; and the effect upon future taxation, of any payment out of the funds, so remote, fluctuating and uncertain, that no basis is afforded for an appeal to the preventive powers of a court of equity” (262 U.S. 487).

The Federal courts are similarly barred from considering an appeal from a State court where a taxpayer's interest is not substantial (Doremus v. Board of Education, 342 U.S. 429 (1952)).

Because of the rule in Massachusetts v. Mellon, existing Federal aids to education have presumably been immune to attack in the courts on the ground that they violate the Constitution. There is, therefore, no significance to be attributed to the fact that the existing programs have not been litigated. We can regard them as precedents only for what the Congress and the President, not the Supreme Court, regard as within the first amendment.

If Congress wishes to make possible a constitutional test of Federal aid to sectarian schools, it might authorize judicial re iew in the context of an actual case or controversy between the Federal Government and an institution seeking some form of assistance.

20 It should be pointed out that decisions of the Supreme Court discussing other problems in the field of education have emphasized that different considerations apply to higher education as against elementary and secondary education. Contrast Hamilton v. Regents (293 U.S. 245 (1934)) (higher education) with Bolling v. Sharpe (347 U.S. 297 (1954)); Brown v. Board of Education (347 U.S. 483 (1954)) : Board of Education v. Barnette (319 U.S. 624 (1943)) (elementary and secondary education).

For example, Congress could direct the Commissioner of Education to make some benefit available to private schools with a requirement that such benefit shall not contribute to an establishment of religion or prohibit the free exercise thereof. The same legislation would also provide for a hearing on a written record of any application rejected and a statement of findings by the Commissioner. The Commissioner's decision rejecting any application for a benefit would be made subject to judicial review. If the Commissioner were to reject the application of a sectarian school on the ground that extending the benefit would violate the statutory provision embodying the prohibition of the first amendment, the applicant could then in effect litigate the constitutional question in court.

In the absence of some such statutory provisions, there appears to be no realistic likelihood that Federal legislation raising the constitutional issues discussed in this memorandum will be resolved by judicial decision.

ALANSON W. WILLCOX,

General Counsel, Department of Health, Education, and Welfare.

SUMMARY OF FEDERAL FUNDS PROVIDED TO PRIVATE INSTITUTIONS OF HIGHER

EDUCATION, 1957–58

In 1957–58, privately controlled institutions of higher education in the United States received 15.8 percent of their total current-fund income from the Federal Government, or 20.1 percent of total educational and general income. The corresponding figures for public institutions were 14.8 percent and 16.9 percent, respectively.

In all, privately controlled institutions of higher education, in the year men. tioned, received $319.9 million from Federal sources, including $3.7 million from veterans' tuition and fees, and $1.6 million in land-grant appropriations, $301.6 million in grants for research, and $12.9 million in grants for other purposes.

Federal appropriations for additions to plant in privately controlled institutions of higher education in 1957–58 totaled $11.1 million. Federal loans (HHFA) for additions to plants of these institutions totaled $66.2 million in 1957 and $83.7 million in 1958, or approximately two-thirds of all funds borrowed by these institutions for additions to plant ($101.8 million for 1957–58 academic year).

SUMMARY OF PROJECTS, COSTS, AND FEDERAL CONTRIBUTIONS UNDER THE PUBLIC

HEALTH SERVICE ACT (TITLE VI), AS AMENDED As of December 31, 1960, the 5,390 hospital and medical facilities projects approved under the Public Health Service Act (title VI), as amended, accounted for total costs of $4.673 billion. Of this amount, $2.854 billion, or 61.1 percent, was for facilities of voluntary, nonprofit hospitals and health units, and $1.819 billion (38.9 percent) for those of public official agencies. The total Federal share of the funds going into these projects was $1.448 billion, of which $0.807 billion (55.7 percent) was allocated to voluntary, nonprofit hospitals and health units. Of the $0.807 billion allocated to voluntary, nonprofit hospitals and health units, $0.324 billion went to church affiliated, and $0.482 to nonaffiliated. Catholic hospitals and health units received an estimated $0.220 billion in Federal funds, Protestant $0.089 billion, and Jewish $0.014 billion. Attached is a summary furnishing further detail on these amounts. The breakdowns by denomination are estimated.

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