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United States Supreme Court. The issue occupies a considerable part of the transcript of the oral arguments before the Court. Justice Rutledge, in his dissenting opinion in Everson gave recognition to the specific religious element in the Pierce decision.158

The true significance of Pierce was never stated in the Department Memorandum. Pierce not only upholds the liberty of parent and child freely to choose for the education of the latter a church-related school; it also denies a power in the state to monopolize education:

The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.159

It is not, of course, intended here to suggest that the economic compulsion which would be visited upon the Catholic parent and child by massive expenditures for public schools only would be legally comparable to a cumpulsory public education scheme such as was employed in Oregon. It is important to point out, however, that the same standardization of which the Court warned would be the probable eventual result of such a one-sided spending program. The great question of policy, upon which the Court in Pierce puts its finger, is whether the public interest lies in the creating of a unitary Kultur.

Irrelevant Criteria

The "criteria" for "aid" given in the Memorandum are, of course, nowhere to be found in the cases. They represent, rather, the Department's attempt to make the cases fit its thesis. The Department is able to create a thinly plausible reconciliation of the cases and the constitutional principles involved principally by refusing to define "religious function" and by refusing to state the specifics of how some sort of “aid” does in fact result in aiding "religion" or the carrying out of "religious functions." At this point in its Memorandum, of course, the Department assumes that it has conclusively established that nothing in the way of what it dubiously calls "across-the-board" aid can be made to religion.

The Memorandum thus justifies (as it must) Everson in that the aid there given was for a "legitimate public concern." But if aid is

158 330 U.S. at 51.

159 268 U.S. 510, 535 (1925).

to be justified upon this basis, then aid to any form of state-approved schooling should be upheld.

The Memorandum lays great stress upon the views of the dissenters in Everson, who "characterized the statute as having the purpose of getting the child to school-an indispensable part of his education."100 But if the dissenters were right in this, and the majority upheld the statute, then Everson plainly holds that that which is indispensably necessary to the educating of a child in a church-related school is constitutional. This consideration is not reflected in the Memorandum.

The Memorandum, as has been indicated, is totally unable to support its distinction between such aids as police, fire and sewerage on the one hand, and tuition, books, grants or loans on the other. The problem is not solved by semantics. Calling one form of aid "incidental" and the other "direct" changes no fact. Sewerage, to which the Department refers, is a sine qua non to the teaching of religion to groups of children. The providing of a school bus trip to the child who cannot otherwise attend a church-related school is actually as much an aid to his getting a religious education as there being a classroom in which he may be instructed at the trip's end. The Department's talk about "side effects of benefiting a religious institution" is meaningless unless (1) we are supplied with specific facts showing how-not a religious institution, but a church or sect-comes to be benefited, and (2) whether that benefit must not be ignored when seen in relation to the benefits to the citizen-student.

Although the Department furnishes many examples of aids which it says are not aids to religion, it is at a loss to show how financial aid is any the more essential to the church-related school than the aids which the Department would sanction.

The sections of the Memorandum respecting "criteria," it must be said in brief, are so shot through with categorical generalizations that little is served by attempting detailed analysis thereof. The controlling premises are found in such unsupported statements as "the State may not aid the religious instruction of a child"; 161 a "legislative proposal ... [must not be] a mere subterfuge for religious support"; 162 the "means employed [must not] result... in support of religious institutions."163

160 HEW Memorandum 366.

161 Id. at 368.

162 Id. at 365.

163 Id. at 366.

♫t recess taken.)

serator Morse. The subcommittee will come to order.

The text witness is Mr. Lawrence X. Cusack, attorney for the Catholic archdiocese of New York.

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sak, we are delighted to have you with us. As you know, Javits and Prouty were very desirous of having you testify. they talked to me, I also desired to have your testimony. We are very g`ad to have you this morning. You may proceed in your

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M: Crack. I am very pleased to be here this morning, thank you. I was very pleased to see that Senator Javits was able to spend sretime with us.

I am a ivsed also that there is a representative here from the A of Senator Keating, who is also from our State.

Mr Chairman, I am an attorney in private practice in the city of New York and I am also chairman of the Archdiocesan Education

tee of the Roman Catholic Archdiocese of New York. the behalf of His Eminence, Francis Cardinal Spellman, whom I ged to represent, I would like to thank this subcommittee nation to testify and state his views concerning the proposals Feteral aid to education now under consideration." An ambishop of New York, Cardinal Spellman has responsibiliregard to a private educational system with hundreds of instiesrang from the graduate school level to the kindergarten. Jan the area of the archdiocese, which comprises 10 counties, in.: 3 within the city of New York, there is a Catholic educational Prem consisting of 1 university and 15 colleges with approximately ients and 1,300 faculty members, 99 high schools with ap~xately 47,000 students and 2,000 faculty members, and 328 rary schools with approximately 172,000 students and 5,000 'y members

The entire system is privately supported by citizens who have been g. at considerable personal sacrifice, to give tangible evidence

belief in and commitment to the values of a system of church- ated education which conforms in all respects to State requireers pertaining to the secular aspects of its curriculums but whose -ark is that it also provides orientation toward the spiritualan's relation to his Creator and his eternal destiny.


If I may interrupt my formal remarks at this point, Mr. Chairman, dike to respond to a question raised earlier this morning by cator Javits. He later asked specifically that I reply to his

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asked a question which, as I recall, was along these lines: Wiit be feasible and helpful to the problem of aid to church→ated education to include in whatever legislation eventually is de

d upon by this committee a clause which might make it clear and amandatory that if any aid is given to education in church

related schools, it should be done on a basis that would require those schools to conform to the requirements of a particular State pertaining to the curriculums of the schools? My response to that is that I believe that, such substantially, is in fact the case today. At least, it is in the sense that in most States of our country with which I have some familiarity, there is already a requirement that private schools conform their curriculums to the basic requirements of State law, or at least in the sense that these schools are required to submit their curriculums to State authorities and obtain the approval of the State authorities to the subjects that they are teaching and the contents, at least the general contents, of those subjects.

I see no objection to that, no objection to the inclusion of a provision along those lines in any bill that might eventuate. As a matter of fact, I think that the existence of such a provision in the legislation might make clear what is already the fact.

I would, however, as an immediate response to the suggestion, say that I would regard it preferable that such language take the form of requiring church-related schools to submit to State authorities the curriculums that they propose to adopt, rather than have the curriculums mandated from State authorities to the schools.

I should think that by thus permitting the church-related school authorities to make their own decisions within a general area that permits some flexibility of approach, they could then mold their own curriculums in the way they best think the subjects can be handled within their own school system, submit them then to the authorities of the particular State, and allow the authorities of the State to pass on the suggested curriculums, as I think has been the case in the past. I think it would universally result in the approval by the State authorities of the curriculums.

Senator JAVITS. Would the Chair allow me to put a question?
Senator MORSE. Yes.

Senator JAVITS. In short, therefore, to sum it up, there would be no objection on the part of Catholic parochial schools to be subject to the rule that teaching of a secular subject which rates within the national interest for aid should be completely divorced from any, not only religious teaching but religious implications, religious indoctrination?

And the way to assure that is by making it subject to the supervision, as it were, and approval of the State curriculum authorities, and that that would be an acceptable solution of that phase of the problem?

Mr. CUSACK. I would like to respond to that, Senator, by saying it this way I would like to restate in my own words what you have just said so as to make it quite clear the way in which I see the probÍem and the solution of the problem.

I would consider that it would create more problems than it would solve if any legislation were to state the solution of this problem in terms of what the curriculums should not contain, because, as previous witnesses have testified, at least in our opinion it is not possible to teach subjects within the framework of the school system without teaching those subjects with relation to a scale of values. And that

scale of values must, we believe, necessarily involve either positively or even negatively a system of moral and spiritual values.

For example, we believe that an attempt to teach a system which is devoid of any reference or relationship to moral or spiritual values is, in itself, the inculcation of a system of values devoid of moral or spiritual values, so therefore, in that sense, you are really teaching a set of values devoid of something which we believe an educational sysem should not be devoid of.

Therefore, I think that the approach to the problem which would prohibit the teaching of certain values would create some really serious problems and I would not be in favor of approaching it from that standpoint.

I would, however, be very much, let us say, amenable to the idea of expressing what I already believe to be the case; namely, that private schools and church-related schools, in which I am particularly interested, already do conform to State requirements as to the general nature and content of the curriculums in those schools.


That being the case, I can see no objection to appropriately phrased language in any bill which would make it a requirement that the authorities of church-related schools who are receiving any aid under a Federal program be required to submit the curriculums of those schools to the State authorities in order to enable the State authorities to determine whether the curriculums so submitted would conform to State educational requirements.

Now, in that general approach, I would prefer that it be done from the standpoint of the submission of proposed curriculums with State approval coming thereafter and on that submission, rather than to have the State curriculums in detail mandated upon the church-related schools within the State.

I think that permitting the church-related schools to formulate their own curriculums in a way that will allow them to move within an area of flexibility, and then permitting the State authorities to determine whether, in formulating their own approach to the teaching of these various subjects, such schools would conform with State requirements, I think, would be better.

It would, I think, achieve the objective of conformity to State law without necessarily overly restricting the authorities of the churchrelated schools.

Within that context, I can see no objection to such a provision in a bill, although I should add as a footnote that in speaking, of course I am speaking only as the representative of His Eminence, Cardinal Spellman, who is the Archbishop of New York.

Senator JAVITS. May I pursue the subject, Mr. Chairman?

Senator MORSE. Yes.

Senator JAVITS. I have no desire to imply negative coverage. I find myself in agreement to what you set forth. It has always been my idea that the curriculum, the course should be submitted, rather than that the mandate be that the course conform to the State curriculum. Mr. CUSACK. Thank you, Senator.

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