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January 28, 1971

Nelson A. ROCKEFELLER, as Governor of the State of New York, Arthur Levitt, as Comptroller of the State of New York, and Ewald B. Nyquist, as Commissioner of Education of the State of New York, Defendants

Lasker, District Judge.

The opinion of the court was delivered by: LASKER

LASKER, District Judge.

In 1970, 850,000 students attended nonpublic schools in the State of New York. The New York Legislature, finding by Ch. 138 of the Laws of 1970:

"That the state has a primary responsibility to assure that its precious resource, the young people of the state, receive educational opportunity which will prepare them for the challenges of American life in the last decades of the twentieth century.
"That the state has the duty and authority to provide the means to assure, through examination and inspection, and through other activities, that all of the young people of the state, regardless of the school in which they are enrolled, are attending upon instruction as required by the education law and are maintaining levels of achievement which will adequately prepare them, within their capabilities.
"That these fundamental objectives are accomplished with respect to public schools in part through the provision by the state of aid to local school districts to meet such costs."

 appropriated $28,000,000 to be paid to nonpublic schools "for expenses of services for examination and inspection in connection with administration, grading and the compiling and reporting of the results of tests and examinations, maintenance of records of pupil enrollment and reporting thereon, maintenance of pupil health records, recording of personnel qualifications and characteristics and the preparation and submission to the state of various other reports as provided for or required by law or regulation."

 This suit challenges the constitutionality of the statute as a violation of the "free exercise" and "establishment" clauses of the First Amendment (as applied by the Fourteenth Amendment). *fn1" Jurisdiction is alleged under 28 U.S.C. §§ 1331, 2201, 2202, 2281, *fn2" and 2283. The complaint seeks declaratory and injunctive relief.

 Plaintiff "Committee" is an unincorporated association of many constitutent agencies *fn3" carrying on activities in the Southern District of New York, whose members are New York residents, and who "share as common objectives preservation of freedom of religion and the separation of church and state and opposition to the use of public funds for the support of sectarian or religious schools." The individual plaintiffs are New York taxpayers. The defendants, as indicated in the caption of the case, are respectively the Governor, Comptroller, and Commissioner of Education of the State of New York. Intervenor-defendants Cathedral Academy, St. Ambrose School, and Bishop Loughlin Memorial High School are secondary and elementary Roman Catholic schools; intervenor-defendants Bais Yaakov Academy for Girls and Yeshivah Rambam are Jewish elementary schools. All of the intervenors are beneficiaries of the legislation.

 Plaintiffs move for the convening of a three-judge district court pursuant to 28 U.S.C. § 2281. *fn4"

 Defendants move to dismiss the complaint on the grounds (1) that the complaint fails to raise a substantial federal constitutional question; (2) that the statute violates neither the federal nor the state constitution; (3) that there is lack of jurisdiction because the amount in controversy is less than $10,000; and (4) that the complaint raises a question of unconstitutionality under the constitution of the State of New York.

 Defendants also move to drop plaintiff Committee as a party plaintiff for lack of standing, and to dismiss as to Governor Rockefeller on the ground that no cause of action is stated upon which relief can be granted against him.

 I turn first to the substantiality of the federal constitutional question. *fn5"


 The federal constitutional issue presented is whether a state may subsidize the operations of sectarian schools, and, if not, whether the payments made under the provisions of Chapter 138 of the Laws of 1970 constitute such an inpermissible subsidy.

 Plaintiffs claim that the statute constitutes compulsory taxation in aid of religion in violation of the free exercise clause, that its purpose and primary effect is to advance religion in violation of the establishment clause, and that it gives rise to an excessive governmental involvement in and entanglement with religion.

 Defendants argue that neither the purpose nor primary effect of the statute is to aid religion, but rather to support the secular purpose of assuring that children attending nonpublic schools comply with the compulsory attendance laws of the state, that they are receiving an adequate education from qualified teachers, and that they are tested in accordance with state standards of academic achievement. The payment for such allegedly secular services, defendants contend, is not constitutionally forbidden. Finally, defendants point out that, although the nonpublic schools were not, immediately prior to the effective date of the Act, compensated for the services covered by Chapter 138, from 1892 until 1968 some 250 nonpublic schools had been so compensated. Accordingly it is suggested that the termination of payments in 1968, although the state continued to require the performance of the services, was legislation which inhibited religion and thus itself a violation of the establishment clause. Although the merits of the present statute do not in my view depend on the prior history of subsidy (that is to say, if there is a substantial question of the constitutionality of Chapter 138, that question is not disposed of by recitation of a previously unassailed subsidy), defendants' contention that the past removal of a subsidy might be regarded an inhibition of religion seems something of an admission that we are dealing with a religious rather than a secular activity. It is also fair to note that the 1892-1968 history is of little significance or assistance in a constitutional analysis, since prior to the Supreme Court's decision in Flast v. Cohen, 392 U.S. 83, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (June 10, 1968), no litigant would have had standing to attack the constitutionality of the payments. *fn6"

 The touchstone decisions which guide us in determining the substantiality of the constitutional question at issue are Everson v. Board of Education, 330 U.S. 1, 67 S. Ct. 504, 91 L. Ed. 711 (1947); Abington School District v. Schempp, 374 U.S. 203, 83 S. Ct. 1560, 10 L. Ed. 2d 844 (1963); Board of Education v. Allen, 392 U.S. 236, 88 S. Ct. 1923, 20 L. Ed. 2d 1060 (1968), and Walz v. Tax Commission, 397 U.S. 664, 90 S. Ct. 1409, 25 L. Ed. 2d 697 (1970).

 In Everson, the Court upheld a New Jersey statute which permitted reimbursement to parents for bus fares of children attending both public and parochial schools. While finding the scheme constitutional because it financed the expenses of parents and students, rather than schools, the Court pronounced decisively:

"No tax in any amount, large or small, can be levied to support any religious activities or installations * * *" Id., 330 U.S. at 16, 67 S. Ct. at 511.

 On its face this proscription would appear to prohibit the payments authorized by Chapter 138, and the plaintiffs argue that Everson's edict is absolute and stands unvitiated. But Schempp and Allen have refined the test, and, as stated by Judge Coffin for a three-judge court holding unconstitutional a Rhode Island statute which provided for supplements to salaries of parochial school teachers of nonreligious subjects:

"Whatever the continued vitality of the Everson test, * * * we are satisfied that it cannot be applied in such a literal manner." DiCenso v. Robinson, 316 F. Supp. 112, 119 (D.R.I. 1970).

 Schempp, which forbade prayers in public schools, supplemented Everson by specifying criteria for the validity of state activity vis-a-vis parochial schools:

"The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say that to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion." Id., 374 U.S. at 222, 83 S. Ct. at 1571. (Emphasis added.)

 This formulation was repeated in haec verba in Board of Education v. Allen, supra, 392 U.S. at 243, 88 S. Ct. 1923, 20 L. Ed. 2d 1060, in which the Court upheld a New York statute providing for the ...

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