STATEMENT OF THE AMERICAN CIVIL LIBERTIES UNION ON S. 1241

The American Civil Liberties Union has examined S. 1241, a bill to authorize assistance to public and other nonprofit institutions of higher education in financing the construction, rehabilitation, or improvement of needed academic and related facilities, and to authorize scholarships for undergraduate study in such institutions.

As a civil liberties organization we do not pass upon the propriety of the extension of Federal aid to either public or independent institutions of higher education. We address ourselves primarily to the question as to whether advantageous loans (which in our view are no different in principle from outright grants) for the building of academic facilities by church-related institutions of higher education, the granting of scholarships to students who attend such institutions, and the payment of an accompanying stipend to a church-related institution, are permissible under the "no establishment" clause of the first amendment.

TITLE I. LOANS FOR CONSTRUCTION OF ACADEMIC FACILITIES

We note that S. 1241 authorizes the granting of low-interest long-term loans for academic facilities including sites, which may total in the aggregate $300 million the first year and rise to $1,200 million by 1965; that not more than 121⁄2 percent of each year's appropriation may be allotted to institutions of higher education within a single State, and that the Commissioner is left free to decide how loan funds in each State shall be allocated among public, independent, and church-related institutions of higher education.

Title I as a whole constitutes an unprecedented massive Federal aid program designed to strengthen the country's colleges and universities, both public and private, and is so drafted as to give the Commissioner maximum discretion in the selection of recipient institutions.

Section 106 merely specifies that to qualify as an institution of higher education, a college or university must (1) admit as regular students only individuals who have a certificate of graduation from a secondary school, or its equivalent; (2) be authorized by the State government to provide education beyond the secondary level; (3) provide an educational program leading to a bachelor's degree; and (4) have been accredited by a nationally recognized accrediting agency listed by the Commissioner.1

S. 1241 sets down no guidelines whatsoever to aid the Commissioner in determining whether a loan may be granted to a particular church-related institution of higher education without violating the "no establishment" provision of the first amendment. The ACLU believes such guidelines are needed to distinguish between institutions whose function is palpably a religious one and those others which, though church-sponsored, offer an educational program than can be defended as such.

In function and program, it is possible to draw a line of demarcation between church-controlled elementary and secondary schools, on the one hand, and on the other, those church-related colleges and universities which are education-centered. In a statement on the Federal aid to education bill, submitted on March 23 to your subcommittee, the union said in part: "Our belief that subsidization of church schools would violate the establishment clause of the first amendment rests upon the very nature, and understandable purpose, of church-controlled schools. They are created for the precise purpose of communicating a body of religious teaching. They are meant to nurture and fortify the faith of children already linked with the religious group. They have additional functions to be sure. . . . But they exist primarily to assure that children of school age will receive religious instruction and will be shielded from competing ideologies and values.

As compared with church-controlled elementary and secondary schools, churchrelated colleges and universities may in some instances be sufficiently different in degree to be different in kind. Institutions of higher education may be distinguished from the typical church-controlled lower school if (a) students and faculty members are not required to be adherents of the religious group with

1 The last sentence of (e) (4) of sec. 106 reads: "For purposes of this paragraph the Commissioner shall publish a list of nationally recognized accrediting agencies or associations which he determines to be reliable authority as to the quality of education or training offered." On grounds of academic freedom, the ACLU believes that the Commissioner should "list those accrediting agencies which to his knowledge are regarded in educational circles as reliable authority concerning the quality of education or training offered."

which the institution is linked; (b) indoctrination in the tenets of a particular faith is not a required part of the curriculum; and (c) determination of the instructional program is committed to the hands of those charged with educational rather than religious responsibilities. An institution that unconditionally meets those minimal standards may properly be characterized as educational, whether or not it was founded by or is now governed or financed (in whole or in part) by a religious group.

It is the union's view that Federal aid to institutions of higher education which truly meet the above criteria, even though conducted by religious groups, would not be contrary to the separation mandate of the first amendment, whereas Federal aid to institutions which place the inculcation of religious doctrine over and above the demands and standards of higher education should clearly be denied such aid on constitutional grounds.

The union therefore urges your subcommittee to incorporate in title I of S. 1241 a new section setting forth the criteria which a church-related institution of higher education would be obliged to satisfy in order to qualify for Federal aid. Each such institution should be required to present evidence in proof of its having met the conditions. It would then be the duty of the Commissioner to evaluate the evidence and determine whether the institution was primarily concerned with providing a higher education administered by a faculty for the benefit of students, without regard to the church or nonchurch affiliation of either group; or alternatively, with indoctrinating the tenets of the sponsoring religious group. Such a test would automatically rule out schools of theology, schools of divinity, or religious seminaries sponsored by one or more denominations.

TITLE II. SCHOLARSHIPS FOR COLLEGE STUDENTS

With regard to the scholarship program covered in title II of S. 1241 (in the form of amendments to title II of the National Defense Education Act), the union sees no civil liberties objection to the provision in section 207 that "an individual awarded a scholarship under this part may attend any institution of higher education which admits him." Just as we have held that under the free exercise of religion clause of the first amendment, students receiving funds through the GI bill of rights should be allowed to choose their institution without regard to whether it was public, independent, or church related, we believe that on the same grounds students qualifying for either loans, scholarships, or fellowships under the NDEA should be left free to choose the institution of higher education at which they wish to study, with the sole exception of schools of theology and religious seminaries.

In S. 1241, equal treatment of applicants for Federal scholarships is insured by the provisions (secs. 221 and 226) that recipients be selected by State commissions on the basis of "objective tests and other measures of ability and achievement." This is consistent with section 108 of title I, which precludes Federal control of a beneficiary institution of higher education. Both provisions meet with our approval on civil liberties and in particular academic freedom grounds. We urge, however, on church-state separation grounds, that section 228, which provides for a $350 "cost of education allowance" to be paid annually to the institution as an accompanying stipend for each scholarship student, be revised to exclude church-related institutions of higher education which fail to meet the criteria outlined on page 3.

THE CONSTITUTIONAL QUESTION

It has been argued that large-scale, long-term, low-interest loans for the building of academic facilities by institutions of higher education, including those which are church related, is a justifiable and proper extension of the dormitory loan program authorized by the Housing Act of 1950. While the ACLU did not in 1950 challenge this section of the Housing Act, we hold that a provision which is of questionable constitutionality should not be extended indefinitely. It is the union's view that in enacting the Housing Act of 1961 the Congress should have amended title IV so as to make loans to church-related colleges for the building of dormitories and other student facilities, dependent on the same conditions which we urge for the granting of loans for academic facilities.

Whether or not your subcommittee sees fit to revise S. 1241 so as to restrict the granting of loans and accompaying stipends to those church-related institutions which satisfy specified educational criteria, the union trusts that you will at least revise the bill so as to provide for prompt judicial review of a suit

filed by a taxpaying citizen. Such a provision was included in S. 1482, a bill introduced on March 20 by Senator Clark to authorize general building loans for private, nonprofit elementary and secondary schools, on which hearings were scheduled by your subcommittee for April 18, but canceled.

We note that S. 1241 in section 105(c) (2) provides that the Commissioner may "be sued in any court of record of a State having general jurisdiction or in any district court of the United States, and such district courts shall have jurisdiction of civil actions arising under this title without regard to the amount in controversy. * Our interpretation of this provision is that it would enable an institution of higher education or a college building agency which had a contract with the Commissioner to sue him, but that it would not give the same right to an aggrieved taxpayer. Without such a specific provision as was inIcluded in Senator Clark's bill, a citizen who believed either that the act was in contravention of the first amendment, or that the Commissioner had erred in his application of such educational criteria for church-related institutions as may have been included, would have no standing in court.

The union concedes that public and congressional interest has been focused on the School Assistance Act and a proposed expansion of the NDEA which would authorize special building loans to nonpublic, including parochial schools. In our view the church-state aspects of the college bill, S. 1241, also call for your subcommittee's-and the Congress'-most earnest consideration. As recently as June 19 of this year, the Supreme Court made clear that it holds to its dictum in Everson (330 U.S. 1, 1947) that: "No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion."

While the Torcaso case concerned not education, but a religious oath, Justice Black in his opinion went out of his way to say for an undivided court that it has not altered its view on either its dictum in Everson or its decision in McCollum (333 U.S. 203, 1948) where it said:

"We are all agreed that the 1st and 14th amendments have a secular reach far more penetrating in the conduct of government than merely to forbid an 'established church' ***. We renew our conviction that 'we have staked the very existence of our country on the faith that complete separation between state and religion is best for the state and best for religion"."

Should the Congress, ignoring the Supreme Court's reaffirmed, broad interpretation of the "no establishment" clause, breach the wall of separation by authorizing aid either to church lower schools or to religion-centered institutions of higher education-and without even providing for judicial review— it would show a deplorable disregard for constitutional principles.

Senator HILL. Senator Randolph, will you please take over?

Senator RANDOLPH (presiding pro tempore). Our next witness will be Mr. Don White.

We are very happy to have you, Mr. White. If you will give your name and identification it will be appreciated.

STATEMENT OF DON WHITE, EXECUTIVE VICE PRESIDENT, NATIONAL AUDIO-VISUAL ASSOCIATION

Mr. WHITE. Thank you.

I am Don White, executive vice president of the National AudioVisual Association in Fairfax, Va.

The National Audio-Visual Association is the national organization of companies who distribute and produce audiovisual materials, such as educational films and filmstrips, and audiovisual equipment such as projectors, tape recorders, and language laboratories. Our membership comprises some 641 companies, including 430 audiovisual dealers who distribute our specialized types of products to schools, colleges, and other users, plus 211 film producers, manufacturers, and other suppliers of audiovisual products.

I am going to make my statement a very brief one. Our primary concern, Mr. Chairman, is that the academic buildings to be built under the provisions of this bill will be properly equipped for the education of college students, and that their equipment will include the necessary instructional equipment and materials which are so vital to modern higher education.

Your proposed bill includes under section 106 wording which would appear to provide for the purchase of the necessary instructional materials and equipment. Subparagraph (a)(1) defines "academic facilities" as

structures suitable for use as classrooms. laboratories, libraries, and related facilities necessary or appropriate for instruction of students. ***

Subparagraph (b) (2) specifies that the word "equipment" includes, in addition to machinery, utilities, built-in equipment, and necessary enclosures or structures

* ** all other items necessary for the functioning of a particular facility as an academic facility, including necessary furniture, except books and except items of current operating expense

*

**

I feel sure it is the intent of your subcommittee, Mr. Chairman, that this wording be interpreted so as to allow for the purchase of necessary items of instructional equipment such as projectors, tape recorders, screens, language laboratories, educational television equipment, and science laboratory equipment; and for the acquisition of instructional materials such as educational films, filmstrips, slides, transparencies, recordings, and similar items which are necessary if the instruction which is to take place in these new college buildings is to be effective and lasting.

The members of our association favor the enactment of S. 1241. We sincerely trust the bill will receive favorable attention by your committee and by the Senate during the 1st session of the 87th Congress.

Mr. Chairman and members of the subcommittee, I wish to thank you for the privilege of appearing before your committee. If you have any questions about the matter I have mentioned, I shall be very glad to do my best to answer them.

Senator RANDOLPH. Thank you, Mr. White.

There may be some problem of the meaning of a definition or definitions within the proposal, S. 1241.

I call your attention, your special attention, to pages 11, 12, and 13 where we define or attempt to properly define the word "equipment." Perhaps you might give the subcommittee the benefit of your thinking, even before I question you further in this matter.

Mr. WHITE. It is my feeling that it is important for a college building, like an elementary or secondary school building, to be not only a brick and mortar shell but a facility which is completely equipped for the instruction of students.

We have been extremely glad to note that in connection with other educational legislation which is now before the Congress, definite provisions have been included in each case for the defining of the word "equipment" so that it includes instructional materials and equipment, and I very much hope that your committee will follow this same practice.

Senator RANDOLPH. Mr. White, I think that the authors and sponsors of this legislation are in general agreement that this is desirable, as you have indicated.

We think in terms of equipment-initial equipment and built-in equipment and perhaps this might be a pertinent illustration. Let us consider a modern building where we were to have an installation, including the equipment for languages. As I understand it, modern methods would call for electronic devices in connection with the teaching of these languages. In other words, there would be almost an electronic laboratory provided.

Now, is it your feeling that that is a capital investment, or is it just a day-by-day expenditure?

Mr. WHITE. No, sir. This I definitely feel should be regarded as a capital expenditure, and I believe it normally is in school practice so regarded. It would be almost foolish in these days to build a language classroom without building the language laboratory electronic equipment into it.

I believe any language instructor will definitely agree with this point, and this goes for other things such as science laboratories.

The equipment is a necessary part of the building and it should be provided when the building is built. If it is not, you then leave it up to the college or university to scrape around elsewhere to find the funds to equip the building, and if my own personal experience is any indication, this has frequently meant in the past that it was years before a completed building actually had the equipment in it that was necessary for its functioning as an academic facility.

Senator RANDOLPH. I may state further that it is the viewpoint of those who sponsor and author this legislation that there be no limitation, no narrow interpretation or definition, which would seem to limit the provision for films, for certain electronic and mechanical devices. which are really aids to an effective educational program.

Mr. WHITE. Yes, sir.

Senator RANDOLPH. I am sure that that is the feeling.

Do

you wish to comment further in reference to this matter?

Mr. WHITE. I believe that your comments have served to clear up any question that might exist in the record on the matter. I think that is all I have to say, sir.

Senator RANDOLPH. Thank you, Mr. White.

Mr. WHITE. Thank you, sir.

(The prepared statement of Mr. White follows:)

PREPARED STATEMENT OF DON WHITE, EXECUTIVE VICE PRESIDENT, NATIONAL AUDIO-VISUAL ASSOCIATION, FAIRFAX, VA.

The National Audio-Visual Association is the national organization of companies who distribute and produce audiovisual materials, such as educational films and filmstrips, and audiovisual equipment such as projectors, tape recorders, and language laboratories. Our membership comprises some 641 companies, including 430 audiovisual dealers who distribute our specialized types of products to schools, college, and other users, plus 211 film producers, manufacturers, and other suppliers of audiovisual products.

I am going to make my statement a very brief one. Our primary concern, Mr. Chairman, is that the academic buildings to be built under the provisions of this bill will be properly equipped for the education of college students, and that their equipment will include the necessary instructional equipment and materials which are so vital to modern higher education.