tional Catholic Welfare Conference issued a study of the constitutionality of the inclusion of church-related schools in Federal aid to education. The study was promptly misinterpreted by two leading newspapers as advocating the distinction between secular and religious subjects, or at least between secular and religious instruction within the same subject. I was privileged to have some part in the preparation of the study, and can state categorically that no such distinction was ever proposed.

When the study speaks of the secular and religious aspects of education in church-related schools, it is using those terms in their constitutional sense. The secular aspects of education are those which government may purposefully promote-for example, knowledge and skill in mathematics, science and foreign languages. The religious aspects of education are those toward which the government must remain neutralfor example, heaven and hell. The principle on which the Legal Department study depends, and on which I think any sound constitutional argument must depend, is that government may give the same things for the same purposes to all academically qualified schools. By so doing, the government promotes educational objectives within its competence and remains neutral toward those not in its competence.

It should be carefully noted that private nonprofit schools are not the only schools with objectives beyond Federal competence. Under our constitutional system, education is a matter primarily for parents and the States. The Federal government is no more a checkwriter for the States in education than in other areas of dominantly local concern, such as the administration of criminal justice or the construction of streets and sewer facilities. Any program of Federal aid to education must be based on a distinctly national interest in education. The program, moreover, must have adequate fiscal controls to ensure the achievement of the national interest. Such has been our tradition with respect to highways, hospitals, unemployment compensation, urban redevelopment, and other areas involving a duality of local and national interest. Education is no exception.

Since the Federal government's interest in education is not coextensive with the States' interest, it is manifest that the public schools have objectives which are

not Federal in character. Since our Constitution leaves education primarily to parents and the States, the Federal government may not require the public schools to surrender their special local objectives in order to obtain Federal assistance. Neither may the Federal government require a similar surrender from the private nonprofit schools.

The fact that public or private nonprofit schools accomplish purposes of their own in addition to the national purposes is constitutionally irrelevant, so long as

their own purposes are compatible with the national purposes. If a school, for example, is organized for racial segregation as well as basic education, the extra purpose is incompatible with national obligations. But if the school is organized for religious as well as secular education, there is no incompatibility. Our Constitution binds the government to neutrality toward religious differences, not to a process of their destruction. No one has a constitutionally protected right to prac tice racial segregation in areas affected with a public interest. Everyone has a constitutionally guaranteed right to a free choice of school.

The compatibility-of-purpose doctrine is fundamental in our constitutional law. Congress cannot give public funds to business corporations for distribution as dividends, but Congress may and does subsidize businesses affected with a public interest. The coincidence of private interest with the national welfare is no barrier to the accomplishment of the common good. That was decided long ago in the Social Security cases. It is a principle imperative for our progress.

Moreover, the compatibility-of-purpose doctrine receives added strength from a simple economic fact. In the NDEA, all that Congress has done for private nonprofit schools is to provide loans for the purchase of equipment. The rate of interest on these loans has been so high that little use has been made of the loans by Catholic schools. High or low, the fact is that the school must repay the loan. The actual contribution, if any, by Congress is a very tiny part of the cost of the equipment. In view of this, by what right could Congress possibly assert complete control of the use of the equipment?

In the case of the public schools, where Congress gives the equipment outright, Congress might be justified in prohibiting (say, for ten years) any use of the equipment other than for science, mathematics or modern foreign languages. This would mean the principal could not use the movie projector donated for science films in order to show a movie about the Constitution. But in the case of private nonprofit schools, where Congress at best is bearing a small fraction of the cost, there is no economic justification for complete control of the equipment.

When John Glenn made his orbit around the earth, America regained her self-confidence. It is probably too early for NDEA to have made a significant contribution to that spectacular flight. But in the years to come, NDEA will make enormous contributions to our scientific progress. When our first settlement has been firmly established on the moon, I wonder how many people will care that some of the scientists who made it possible gazed in wonder at their Federally-financed slide rule, while some good nun said to them: This should remind you of eternity. The scales extend indefinitely to the left and the right."

distinguished historical and constitutional associations. But now the argument is being advanced that this very philosophy of education precludes the federal government from extending financial assistance.

The "No Aid” Theory

In a recent research project supported by the National Council of Churches,1 it was stated that the textbooks in parochial schools adhere to this philosophy and that even the physical science courses reflect it. On the basis of these findings it was asserted that the portion of the National Defense Education Act, which provides loans for private schools for the acquisition of textbooks in the physical sciences and foreign languages is unconstitutional; presumably on a guilt by association theory. Clothed in constitutional language, the argument is advanced that because of this association the receipt of public money constitutes aid to religion and therefore violates the no establishment clause of the first amendment. Strong reliance is placed on the "no aid to religion" doctrine of Everson v. Board of Educ. There the Court stated:

The "establishment of religion" clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.2

The "no aid" theory, frequently read and applied in an uncritical manner since it was first enunciated by Mr. Justice Black, has led to many broad doctrinaire statements and positions inaccurately implying

a prohibition of any form of economic assistance to an institution whose curriculum is integrated with religious percepts. This question was before the Court in Everson. For example, in oral argument, the attorney for appellant advanced the following proposition:

So paying the transportation cost did more than aid the child in pursuing his secular education, it put him in the one place where religious instruction was made available..... Church school has two functions; the teaching of secular subjects and the teaching of religion.*

Later in the oral argument, the point came

up most forcefully in a colloquy between Mr. Justice Black and the attorney for the appellee. Mr. Justice Black stated:

I could understand it [your argument] if you based [it on] the situation, which it seems to me exists, that it does help religious schools but . . . it helps because of public education, and we shouldn't hold that it offends the broad purpose of the First Amendment."

The decision of the Court upholding the transportation law reflects this colloquy. It held that the transportation legislation satisfied a public purpose, and then, after reciting the "no aid” language, declared that:

[O]ther language of the First Amendment commands that New Jersey cannot hamper its citizens in the free exercise of their own religion. Consequently, it cannot exclude

Catholics, Lutherans. . . or the members of any other faith, because of their faith or lack of it, from receiving the benefits of public welfare legislation."

It is obvious from this holding that the "no aid" doctrine may not be read in a 3 Record, p. 16.

* Id. at 21.

5 Id. at 50.

• Everson v. Board of Educ., supra note 2, at 16.

dogmatically literal manner and may not be applied without adverting to the fact that it is a legal term that calls for the application of the doctrine in the light of relevant judicial norms. What are these norms? First, Everson teaches us that the state must be neutral and that the "no aid" principle is conditioned by this judicial mandate of neutrality. This doctrine was given positive emphasis in the case of Zorach v. Clauson, where the Supreme Court, in upholding a New York released time statute, declared:

We are a religious people whose institutions presuppose a Supreme Being. . . . When the State encourages religious instruction or cooperates with religious authorities . . . it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs.R

The neutrality norm of Everson was thus freed of its negative characteristics and became a dynamic principle deviating sharply from the secularistic philosophy of McCollum v. Board of Educ. It must now be interpreted in light of the accommodation mandate of Zorach and the juridical philosophy underlying it—a philosophy which is predicated on cooperation between Church and State.

It is much too late to argue that legislation intended to facilitate the opportunity of children to get a secular education serves no public purpose.

10

11

In so holding it cited the case of Cochran v. Board of Educ.,11 where the Court had sustained the constitutionality of a statute which provided for the use of textbooks by all of the school children in the State of Louisiana. In this key case the Court declared:

Viewing the statute as having the effect thus attributed to it, we can not doubt that the taxing power of the State is exerted for a public purpose. The legislation does not segregate private schools, or their pupils, as its beneficiaries or attempt to interfere with any matters of exclusively private concern. Its interest is education, broadly, its method, comprehensive. Individual interests are aided only as the common interest is safeguarded.12

Admittedly, the public purpose concept of Cochran and Everson has not been used adequately as a norm for interpreting the "no aid" doctrine, probably because the Court did not in the Everson decision attempt to spell out the relationship between this concept and "no establishment." The position that the religious instruction in a parochial school is a disqualifying factor is a perfect example of the confusion which has resulted from the "wall of separation" which has been erected between the public purpose principle of the fourteenth amendment and the "no establishment" clause of the first amendment. Little effort has been made to relate and harmonize the first and fourteenth amendments. Concededly, aid to education serves a public purpose under the fourteenth amendment.13

10 Everson v. Board of Educ., supra note 2, at 7. 11 281 U.S. 370 (1930).

12 Id. at 375.

13 18 Cf. Everson v. Board of Educ., 330 U.S. 1 (1946).

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Ordinarily this would conclude a controversy over the constitutionality of public aid. The question is now asked, “Even if a public purpose is served, is there aid to the sectarian institution?" If the question is answered in the affirmative, then the tendency is to conclude that there is a violation of the first amendment.

This compartmentalized approach to problems affected by the first and fourteenth amendments results from the disposition to regard the "no aid" concept of the first amendment as an absolute. A critical and informative analysis of the validity of this attitude may be found in the June 16, 1962 issue of America. In an article entitled, "Textbooks and the Constitution," Charles M. Whelan, S.J.. makes the following comment:

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" language in the Bill of Rights means not "never", but "hardly ever". "The First Amendment", wrote Mr. Justice Douglas for the court in the Zorach decisi n (1952), "within the scope of its coverage permits no exception; the prohibition is absolute. The First Amendment, however, does not say that in every and all respects there shall be a separation of Church and State.11

The Relationship Between "No Aid" and Public Purpose With this proposition in mind we may now proceed to examine the interrelationship between the first and fourteenth amendments. At the outset we are con

14 America, June 16, 1962, p. 400.

fronted with the fact that the very application of the principles of the first eight amendments to the state is through the medium of the fourteenth amendment. Moreover, the concept of liberty now frequently associated with the first amendment was first articulated in connection with the liberty clause of the fourteenth amendment.15 In short, we do not have two basically different and unrelated principles. The public purpose concept has a definite relationship to the concept of aid. Mr. Justice Rutledge saw this quite clearly in his dissenting opinion in Everson. There, he stated:

We have here then one substantial issue, not two. To say that New Jersey's appropriation and her use of the power of taxation for raising the funds appropriated are not for public purposes but are for private ends, is to say that they are for the support of religion and religious teaching. Conversely, to say that they are for public purposes is to say that they are not for religious ones....

Now it [the Court] declares in effect that the appropriation of funds to defray part of the cost of attending these schools is for a public purpose. If so, I do not understand why the state cannot go farther or why this case approaches the verge of its power.16

It is therefore submitted that if educational legislation satisfies a public purpose, then any "aid to religion" must be substantial and directly intended before it may be held 15 262 U.S. 390 (1923). See also Hamilton v. Regents of the Univ. of Cal., 263 U.S. 245 (1934); Cantwell v. Connecticut, 310 U.S. 296 (1940). In the latter case the Supreme Court declared: "The fundamental concept of liberty involved in . . . [the Fourteenth] Amendment embraces the liberties guaranteed by the First Amendment." Id. at 303.

16 Everson v. Board of Educ., 330 U.S. 1, 51 (1946).