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in the Catholic Classroom


O'Neill C. D'Amour

reprinted from America, National

Catholic Weekly Review issue of June 30, 1962


Charles M. Whelan

reprinted from America, National

Catholic Weekly Review issue of June 16, 1962

George E. Reed

reprinted from The Catholic Lawyer

Summer 1962 issue

National Catholic Welfare Conference
1312 Massachusetts Ave. N.W.

Washington, D.C.


On the Problem of Permeation

A recent story suggesting that textbooks be the criterion for determining the constitutionality of government aid to church-related schools betrays a lack of knowledge both of education and of constitutional law.

It is no secret that Catholic schools integrate religion with other subject matter. We do not deny this. We take pride in it. Otherwise our Catholic schools would lose a vital reason for existence.

The integration of religion into all subjects does not make the NDEA assistance to churchrelated schools unconstitutional. As a matter of fact, the NDEA bears out our contention that the government can aid private nonprofit schools because these schools render a public service to the community. In these schools the students learn mathematics and science, which is what Congress obviously desires through this legislation. That a religious purpose is also achieved does not nullify the public service rendered.

When Catholic educators speak of "secular" and "religious" in relation to education, they do not attempt a division between secular and religious subjects. They are speaking of secular and religious purposes in the same subjects.

These points are fully treated in a recent study (December, 1961) of the NCWC Legal Department which discusses the constitutionality of direct and purposeful government assistance to the public or secular aspects of education in church-related schools which meet reasonable state standards.

The burden of the NCWC Legal Department study is that the benefits which would result to religion from an inclusion of all academically qualified private nonprofit schools in Federal aid to education would not render such a program unconstitutional. While the No Establishment Clause of the First Amendment imposes definite restrictions on purposeful governmental support of religion as such, the Free Exercise Clause also imposes definite restrictions on the exclusion of otherwise qualified individuals or institutions from nonreligious public programs merely because they are also church-related. In order to maintain neutrality towards all forms of religion and irreligion, the government may make nonreligious benefits available to all, regardless of their religious affiliation or lack of it. Moreover, such a government policy has the additional merits of fostering parental and academic freedom as well as true religious liberty.

The argument that all reference to religion must be eliminated from publicly supported education leads to absurd consequences. Taxpayers must surely see to it, under this argument, that no more copies of Shakespeare are purchased with their funds, since there are few more powerful teachers of religion. It could certainly be proved that every school that uses Dante. Chaucer, or Shakepeare inevitably educates children in a religious interpretation of life, some aspects of religious dogma, and the moral and life values that Christianity maintains in a culture. If the simple presence of religious content in a textbook makes public purchase of the textbook unconstitutional, every school district in the nation has long been violating the Constitution.

No solution can be found in the total exclusion of religion from public education. Such an education would fall squarely into the category of secular humanism, and the Supreme Court said last year, in the Torcaso case, that secular humanism is a religion within the meaning of the First Amendment.

The problem of the proper relationships between parents, government, religious groups, and education is one of the gravest constitutional problems confronting our nation. We believe that the only solution consistent with our constitutional heritage is one which will leave the government free to provide the same assistance to education in both public and private nonprofit schools and which will also respect the academic freedom of both systems of education.

To aid in an understanding of these issues three articles follow illuminating the problems, and indicating that they are among the outstanding and challenging concerns of our times.

Director of the Legal Department
National Catholic Welfare Conference


Tempest in a Textbook

Beligion is integrated into secular textbooks used in Catholic schools! This was the amazing conclusion of a two-year study reported before the Department of Education at Syracuse University by George La Noue, a Yale graduate student. Such reports by students are commonplaces of academic life, and ordinarily they get little attention even on campus. Since, at Syracuse, hether the research nor the researcher was notable, # must be asked why so much attention was given tas seminar paper by the nation's press.

Undoubtedly, a major reason was the sponsorship of the study. Publicity releases stressed that it had been de at the request of the National Council of Churches through its Department of Religious Liberty. Then too, the involvement of the council raised the anguing issue of Church and State. Nor did the study take a chance on this issue's being overlooked. Its conclusions questioned the constitutionality of the National Defense Education Act.

But apart from the theorizing relative to the Constitution, the findings of the study are a belaboring of the obvious it will seem rather perplexing to Catholic educators that anyone should need a two-year study to arrive at such a conclusion, for it is obvious that religm the program of the Catholic school, is integrated not only into textbooks but into the entire curTulum Catholic philosophy of education sees the school as guiding the child to right understandings, attitudes and habits in relation to his fellow man, to nature to self, to God. All these relationships are involved in practically every subject of the school day. To Laut "region" to a special period would not only place it in a wrong perspective, but would also impede effective teaching in all fields.

But having admitted this, I would submit that while sach a practice might have some emotional overtones relative to legislation, it has nothing to do with constitutionality. Nor do I think it necessary to refer here to recent scholarly studies on the constitutionality of and to nonpublic schools. Rather than approach the e by asking whether religion is being taught in parochial schools, I would ask: "Are the secular subwcts being taught?" In other words, are science, litera

remathematics and social studies being taught in the Catholic school? Are the pertinent facts of these

America / June 16, 1962

fields being presented in an adequate manner? If they are, there is no issue. If the Catholic school teaches something else besides-so long as this something else is not subversive-it is really no concern of the government.

But there is one very intriguing principle underlying the study in question. The author seems to believe it possible to have a "neutral" school. Yet teaching is done by teachers. Even granting, which I would not, that it is possible to have a neutral textbook, the idea of a neutral teacher is an educational and psychological absurdity. Teachers are human beings. They have philosophical and theological positions derived from their backgrounds and from those who taught them. I am not referring here to such trivia as the use of religious symbols as illustrations in a given textbook. I am referring to the far more important matter of the fundamental premises upon which a teacher bases his or her presentation. Is it possible to teach biology without involving a concept of the origin and preservation of life? In the teaching of history or ecology, is it possible for a teacher to divest his mind of his philosophy and theology? The teacher, not the textbook, is the major instrument that brings religion into education. And if the intent of this study is to withhold tax aid from schools with religious premises of one sort or another built into their teaching, Congress will have to double the size of the FBI. Such a task force would find it fairly simple to revise textbooks. A much more difficult job for it would be completely to cleanse teachers' minds of religious predispositions.

We proudly proclaim that the Catholic schools of America provide a good education, not only in religion but in the secular subjects. We invite the author and sponsors of this study into our schools, to inspect our records. We ask them to join hands with us in Christian charity so that together we might find the best means of strengthening the education of all our youth and of preserving the religious premises upon which this nation was founded.

MSGR. D'AMOUR is associate secretary of the School Superintendents' Department, National Catholic Educational Association.


Textbooks and the Constitution

The Constitution does not prohibit an incidental benefit done to religion

Startled by Sputnik, Congress passed the National Defense Education Act in 1958. One of the major provisions was financial assistance to all academically qualified schools for the purchase of equipment suitable for use in providing education in science, mathematics or modern foreign languages. Public schools received outright grants. Private nonprofit schools were given loans. The NDEA is still in effect. Originally authorized for a three-year term, it was extended last year, without change, by a vote of 80-7 in the Senate and 378-32 in the House, for two additional years. The argument is now heard that the NDEA is unconstitutional.

Fortunately, overwhelming Congressional majorities do not guarantee the constitutionality of legislation. Only a 5-4 vote (or better) in the Supreme Court can effect that. Jefferson's view-held at least when he was President-that Congress and the Executive are coequal interpreters with the Supreme Court, lost out long ago. However, even with allowance for the primacy of the court, the constitutional opponents of NDEA have a hard row to hoe. Congressional passage of a bill implies Congressional approval of its constitutionality. When Congressmen, with virtual unanimity, agree to the extension of NDEA, it would be most unusual for the Supreme Court to invalidate their action.

What's the fuss all about? It seems that in a mathematics textbook designed for Catholic schools the following problem occurs: "If 40 fourth-grade girls say the rosary, how many Hail Marys do they say?" There is no denial that some knowledge of arithmetic is necessary in order to solve the problem. There is no allegation that any Federal law permits Federal funds to be used for the purchase of such a textbook. What is alleged is that the presence of this problem in the book makes it unconstitutional for the Federal government to lend money to the school for the purchase of slide rules.

The premise underlying this charge is that it is unconstitutional for the government to do anything in the field of education which results in assistance of any type to the teaching of a particular religion. The principal fact on which the argument relies is that many private nonprofit schools, especially Catholic schools,

FR. WHELAN, s.J., well-known student of constitutional law, is a lawyer admitted to practice before the Supreme Court.

permeate all subjects with religious instruction. The conclusion is that it is impossible to include churchrelated schools in Federal aid to education on the basis of a distinction between secular and religious subjects.

I agree. With the fact and the conclusion, that is. The premise, on the other hand, is as untenable today as it was in 1947 and in 1952. In 1947, in the Everson case, the Supreme Court held that government could transport children to all qualified schools, including Catholic schools. In 1952, in the Zorach case, the court held that government could accommodate the public school schedule of classes so that children could be released during the school day to receive religious instruction in the church of their parents' choice. In both cases the Supreme Court expressly recognized that some benefit to religious education would result Whether the court had admitted it or not, the fact would be undeniable.

The premise that any benefit to religious education is constitutionally fatal contains two fallacies. It ignores the complexity of the effects of Federal legislation, and it is completely doctrinaire.

I confess to mounting impatience with the literal proponents of the "no aid to religion" doctrine. That doctrine is part of our constitutional law. But it has to be rightly understood-and by “rightly," I mean as the Supreme Court intended it. "Neither [a State nor the Federal government] may aid one religion, aid all religions, or prefer one religion over another," wrote Mr. Justice Black when he and the court sustained the constitutionality of transportation to all qualified schools, including Catholic schools. The same sentence was repeated last year when the court upheld laws setting Sunday aside as a day of rest.

There are only two logical possibilities: either transportation and Sunday closing laws are not "aid to religion" in the constitutional sense; or the prohibition on "aid to religion" is not absolute. Of these possibilities, the second commends itself by its realism, common sense and the traditions of our nation.

If I understand the Supreme Court correctly, the "no aid to religion" doctrine means that government cannot prefer religion over irreligion, at least not by imposing an economic, civil or criminal burden on irreligion. Owing to the religious inspiration of the Decla

ration of Independence and of certain long-standing practices, some preference of religion may be permisstie-but it cannot go to the extent of isolating the atheist in a public school or of denying atheists public

In this connection, it should be noted that one of the mar conceptual problems facing the court is the defition of "religion" in the First Amendment. In the Maryland notary-public case last June (Torcaso v. Watkins), the court included Secular Humanism and Etical Culture within the meaning of "religion." If "religion" means "religion and irreligion," and government may not do anything that helps religion, Congress is impotent.

If the Supreme Court has made anything clear since the New Deal, it is that there are no absolutes in our constitutional law This may be regrettable, but it is a fact. It is one of the principal reasons why we have so many split and prolix opinions. Actually, the doctrine is not as relativistic as it sounds. The point driven home in one decision after another is that the "no" langage in the Bill of Rights means not "never," but hardly ever." "The First Amendment," wrote Mr. Justice Douglas for the court in the Zorach decision 62), "within the scope of its coverage permits no exception, the pro

tion is absolute. The First Amendment, however, dues not say that in every and all respects there shall be a separation of Church and State."



It is high time, therefore, that the pure result test be abandoned. The mere fact that one or some or all regons benefit from a law is not invariably fatal to its stitutionality. If there were any lingering doubts after Zorach, they should have been decently interred en the court sustained the Sunday laws last June. To make a single result the touchstone of constituDonality ignores all the other results of the law and the complexity of our pluralistic society. The textbook arDument against NDEA ignores the Congressional decarion of purpose and the Congressional limitation of ans to the achievement of that purpose. The textbook argument swallows Sputnik and strains out the


National defense does not justify everything. We cannot beat the Communists by becoming Commu

But surely the most resolute separationist will not begrudge the dying soldier the blessing of his chapan, nor the budding astronaut his slide rule. For my part I am convinced that no appeal to the national defense need be made to justify NDEA. With or withthe Cold War, the national government has a spe

cial interest in science, mathematics and foreign languages. But if our national defense should require measures which would indirectly and unintentionally prefer the Protestants, I am all for them.

In addition to ignoring the many important national purposes accomplished by NDEA, the textbook argument never comes to grips with our constitutional history. The argument does not rely on careful analysis of our legislative traditions or of the fabric of Supreme Court decisions. It presents no general theory within which the results of those decisions and abiding statutory patterns (like tax exemptions and chaplains) can be reconciled.

The argument is so doctrinaire, indeed, that it contains its own seeds of destruction. For within the existing Supreme Court definition of religion, any set of transcendent values, any philosophy of life, is a religion. The American way of life is a set of transcendent values, and the public schools teach it. Their textbooks, thank heaven, are full of it. If the textbook argument is valid, the public schools are unconstitutional.

In spite of all this, I am grateful that the argument was made. It provides another opportunity (or rather, goad) for the clarification of a cardinal point. In the whole Federal aid to education controversy, no solid constitutional argument can be built in terms of a division of subjects. Most private nonprofit schools, Catholic and non-Catholic, integrate religious instruction with all their courses. That is one of the reasons they exist. From the viewpoint of the churches, it may well be the principal reason. From the viewpoint of parents and civil society, it is only one reason.

The correct constitutional principle is that the Federal government may give the same things for the same purposes to all academically qualified schools for the improvement of education. There are certain areas of education in which the nation has a special interest as a nation: foreign languages and military subjects are the clearest examples. The specification of science, mathematics and modern foreign languages in the NDEA merely guarantees the legitimacy of the national interest. It has no relevance to the Church-State question.

That question arises, in the minds of some, because Congress established no religious test in the NDEA. Any academically qualified school could participate, public or private nonprofit, sectarian or nondenominational. All that Congress was interested in was the enlargement and improvement of instruction in the specified areas. All the help that Congress gave was tailored to those areas. Congress bestowed the help without any religious classifications. In so doing, Congress proved itself truly neutral toward religion, and genuinely respectful of the parental and academic freedoms involved in the choice of schools.

Last December, the Legal Department of the Na

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