of New York, the archdiocese of New York, and the State of New York.

The picture is not unique. With variations it appears over and over again in other States and school districts throughout the Nation. Cardinal Spellman's responsibilities and concern for educational excellence are, however, by no means limited to the archdiocesan, citywide, and statewide systems I have described. There are well in excess of 100,000 Catholic children in attendance at public elementary and high schools within the area of the archdiocese, and that comprises only 10 out of the counties of the State of New York, and Catholic enrollments at public and other private colleges and universities within the archdiocese represent a large part of the student bodies.

Nor is the concern of Cardinal Spellman for excellence in education, both public and private, confined to the geographical limits of the archdiocese. As one of the American Roman Catholic hierarchy, and as a citizen whose selfless concern for the spiritual and temporal well-being of the Nation, and most especially for all our children regardless of race, creed, or color, has been demonstrated time and time again, Cardinal Spellman is concerned with any development, legislative or otherwise, that is apt to have a serious impact on our country's educational systems, public or private, and, therefore, upon the future welfare of the people of the United States.

It is in the context of those concerns and responsibilities that Cardinal Spellman has evaluated pending proposals for Federal aid to education.

CARDINAL SPELLMAN'S POSITION ON S. 580

The bill which I understand to be the primary object of this subcommittee's attention at this time is S. 580, an omnibus proposal that would be known as the National Educational Improvement Act of 1963.

Its stated purpose is "to strengthen and improve educational quality and educational opportunities in the Nation." In his special message to Congress which preceded the introduction of the bill, President Kennedy declared:

from every point of view, education is of paramount concern to the national interest as well as to each individual. Today we need a new standard of excellence in education, matched by the fullest possible access to educational opportunities, enabling each citizen to develop his talents to the maximum possible extent.

This is a statement to which I am sure all heartily subscribe, including Cardinal Spellman and his fellow American Catholic bishops who as a body have made prejudgment as to the need and advisability of achieving the objective by a sweeping program of Federal aid to education at all levels.

At the level of higher education the bill conforms admirably to the standard mentioned by the President with one puzzling exception, a program in part B of title II to provide grants for junior college facilities that is unaccountably limited to public community colleges. There seems to be nothing in either the special message or the bill itself to explain the omission of private junior colleges.

At the level of elementary and secondary schools the bill contains several disappoinments. Part B of title IV, which relates to instruc

tion equipment for science, mathematics, and modern foreign languages, would continue the imbalance in the National Defense Education Act under which public schools are entitled to grants but nonprofit private schools limited to loans. Part C of title IV, which relates to appropriations for guidance, counseling, and testing, would continue the imbalance in the same act under which children in nonpublic schools are excluded from programs for counseling and guid

ance.

The third deficiency in the provisions for elementary and secondary schools is the most serious, one that is even more obviously in conflict with the stated purpose of the bill and the President's above-quoted declaration and similar remarks in his special message. It is on that particular part of the bill that I should like to center the rest of my remarks.

I am referring to part A of title IV of S. 580. Title IV relates to "strengthening elementary and secondary education," and part A relates to, indeed I should say is limited to, "public elementary and secondary education."

With regard to that part, the Presidential message states:

I recommend, therefore, a 4-year program to provide $1.5 billion to assist States in undertaking under their own State plans selective and urgent improvements in public elementary and secondary education including: (1) increasing starting and maximum teacher salaries, and increasing average teacher salaries in economically disadvantaged areas; (2) constructing classrooms in areas of critical and dangerous shortage; and (3) initiating pilot, experimental, or demonstration projects to meet special educational or demonstration projects to meet special educational problems, particularly in slums and depressed rural and urban areas.

This is substantially the language of the declaration of purpose in section 401 of the bill.

The feature of part A, title IV, that is disappointingly out of line with the spirit of the President's message and the overall purpose of the bill is the omission of provision for private schools.

It is an omission that would have the effect of excluding from the benefits of the program almost one-fifth of the elementary and secondary school children of the Nation and, therefore, one that cannot be reconciled with the reference in the special message to "Our concern as a nation for the future of our children ***”

That such exclusion of millions of private-school children was made only after sober reflection by well-intentioned men I do not question. I do, however, respectfully submit that the exclusion cannot be successfully defended.

CONSTITUTIONAL ARGUMENTS

Certainly it cannot be defended as sound national educational policy or as equal justice under law. The only ground upon which the exclusion is possibly tenable is that it is demanded by our Federal Constitution on the theory that to permit children attending churchrelated schools to participate in the program would involve Congress in the enactment of a law "respecting an establishment of religion" and thus run counter to a prohibition of the first amendment.

But if the objection rests upon the constitutionality of including children in church-related schools, I submit that it is an objection that can be satisfied by properly drawn legislation that would adopt

one of a number of constitutionally permissible approaches to aiding the nonreligious aspects of education in those schools.

An objective and fully documented study of the historical and legal aspects of the constitutionality of the inclusion of church-related schools in Federal aid to education made in 1961 by the Legal Department of the National Catholic Welfare Conference-and that has already been made a part of the record this morning-concludes that there exists "no constitutional bar to aid to education in church-related schools in a degree proportionate to the value of the public service it performs."

If the objectivity of that study be questioned, as would be understandable considering its source, I invite to the attention of this subcommittee the similar views of a number of eminent authorities on constitutional law whose opinions may be evaluated without reservations as to objectivity.

Prof. Mark DeWolfe Howe of Harvard Law School stated in a 1961 letter to the chairman of this subcommittee that it seemed to him— quite clear that there is no constitutional barrier to Federal financing of the edu cational activities of private schools which are serving the public interest by providing that kind of instruction which the States prescribe for public schools. In the same year a fellow member of the Harvard Law School faculty, Prof. Arthur E. Sutherland, was quoted in a newspaper interview as saying:

If I were President, I could think of no clear constitutional reason to veto a bill aiding church and private schools.

Prof. Wilber G. Katz, former dean of the University of Chicago Law School, has expressed the view that—

the Constitution leaves Congress free to pattern its aid to education in a way which protects the freedom of choice of students and parents as to the schools in which Federal benefits may be enjoyed.

Paul G. Kauper, professor of law, University of Michigan, has said that consistent with the nonestablishment principle of the first amend

ment

Congress may grant some assistance to (church-related) schools as part of a program of spending for the general welfare, so long as the funds are so limited and their expenditure so directed as not to be a direct subsidy for religious teaching.

According to Professor Kauper a principal reason to justify such expenditures is that church-related schools

do serve a secular as well as religious purpose

and another reason is that in assisting such schools the Government would thereby be making—

a meaningful contribution in support of the right of parents to send children to the school of their choice.

The views of these distinguished scholars are consistent with a balanced interpretation of the establishment clause of the first amendment such as was recently expressed by Dean Erwin N. Griswold of the Harvard Law School. Speaking about another aspect of the establishment clause, Dean Griswold condemned

the logical implications of absolutist notions not expressed in the Constitution itself, and surely never contemplated by those who put the constitutional provialons into effect.

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The third deficiency in the provisions fo schools is the most serious, one that is ev with the stated purpose of the bill and declaration and similar remarks in his particular part of the bill that I she remarks.

I am referring to part A of titl "strengthening elementary and relates to, indeed I should say secondary education.”

With regard to that part, th I recommend, therefore, a 4 States in undertaking under the ments in public elementary ar starting and maximum teache in economically disadvantag critical and dangerous short stration projects to meet special educational prob) urban areas.

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TATION OF THE FOUR POINTS

my interpretation of the Cardinal's four points urch-related schools to say that he would look .ch aids, individually or in combination, in an enne deadlock which seems-the deadlock which has g time, legislativewise, in getting Federal aid to eduon through Congress, and that in advocating such aid d in the four points listed by you as possible approaches De acceptable to the Cardinal, there is a recognition on his so-called general Federal aid program for church-related ould not be necessary to receive his support for legislation? JUSACK. Yes, sir, if