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June 21, 1976

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, and Horace Mann-Barnard School et al., Intervenor-Defendants

The opinion of the court was delivered by: WARD

ROBERT J. WARD, District Judge.

This case requires us to determine whether Chapter 507, as amended by Chapter 508, of the 1974 Laws of New York ("the statute"), which provides for reimbursement to private schools of expenses allocable to the performance of certain state "mandated" pupil testing and record keeping, is offensive to the Establishment Clause of the First Amendment.

 Plaintiffs, who commenced this action less than one month after the statute was signed into law, are an association, with numerous organization members, whose objectives include opposition to the use of public funds for the support of sectarian schools, and individual New York State taxpayers. Defendants are the Commissioner of Education and the State Comptroller. Intervenor-defendants are one nonsectarian and four sectarian private schools which receive funds pursuant to the statute. Plaintiffs seek a declaration that the statute is unconstitutional and an injunction against the allocation and use of public funds for the support of religious schools.

 Upon the request of the parties, this three-judge court was convened pursuant to 28 U.S.C. §§ 2281 and 2283. The parties have agreed that the case shall be determined on the pleadings and the defendants' and intervenor-defendants' answers to plaintiff's interrogatories.


 The statute, which became effective July 1, 1974, provides for reimbursement to nonpublic schools of the "actual cost" of complying with state requirements for pupil attendance reporting and the administration of state prepared examinations such as regents examinations, the pupil evaluation program, and the basic educational data system. *fn1" These reports and tests are required of public and nonpublic schools alike. The statute was passed by the Legislature, pursuant to the proposal of the Regents, to replace Chapter 138 of the 1970 Laws of New York which had been declared unconstitutional in Levitt v. Committee for Public Education & Religious Liberty, 413 U.S. 472, 93 S. Ct. 2814, 37 L. Ed. 2d 736 (1973). It was drafted to eliminate those features of Chapter 138 which the Supreme Court found offensive to the First Amendment, specifically reimbursement for traditional teacher-prepared examinations and the failure to limit reimbursement to actual costs incurred.

 According to defendants' answers to plaintiffs' interrogatories, there are 1954 nonpublic schools, eligible to receive reimbursement pursuant to the statute, approximately 85% of which are religiously affiliated. Although the characteristics of these sectarian institutions vary widely, schools which

(1) are controlled by churches or religious organizations, (2) have as their purpose the teaching, propagation and promotion of a particular religious faith, (3) conduct their operations, curriculums and programs to fulfill that purpose, (4) impose religious restrictions on admissions, (5) require attendance at instruction in theology and religious doctrine, (6) require attendance at or participation in religious worship, (7) are an integral part of the religious mission of the sponsoring church, (8) have as a substantial or dominant purpose the inculcation of religious values, (9) impose religious restrictions on faculty appointments, and/or (10) impose religious restrictions on what the faculty may teach

 are permissible beneficiaries. *fn2"

 Schools must apply for reimbursement listing the amount claimed for each service rendered separately. *fn3" Reimbursable costs include teacher salaries, fringe benefits, supplies, and other contractual expenditures such as data processing services. Section 7 of the statute requires schools applying for financial assistance to submit vouchers, capable of audit, to insure the propriety of payment. *fn4" To implement this section, defendants have promulgated forms which require applicants for reimbursement to list separately the amount claimed for each reimbursable cost for each reimbursable service. For reimbursement of personnel salaries and fringe benefits, the defendants also require the submission of a form entitled "Justification of Salary and Fringe Benefit Costs Claim For State Aid For Testing, Reporting and Evaluating." Such reimbursable costs are calculated on this form by first determining the percentage of total work time spent performing reimbursable services. Gross wages and fringe benefits are then multiplied by the resulting percentage. It should be noted that the resulting reimbursable amount does not represent any additional sum expended over and above ordinary teacher and other personnel compensation, but rather represents a percentage of compensation which would be paid whether or not employee time was spent in performing state required services.

 The statute, also, makes a provision for further audit of underlying records, if necessary, and reimbursement to the state in the event of overpayment. *fn5" Defendants have promulgated suggested accounting procedures so that records are kept which are capable of such an audit. *fn6"

 From an examination of the intervenor-defendants' answers to plaintiffs' interrogatories, the bulk of reimbursement claimed is for salaries and fringe benefits. The total amounts claimed vary from school to school, depending in part upon the services performed. For example, for teacher salaries and fringe benefits for attendance, the amount claimed varies from approximately 1% to 5.4% of the aggregate cost of these budget items to the different schools. It has been estimated that the cost to the state of providing reimbursement to private schools, pursuant to the statute, will be between $8,000,000 and $10,000,000 annually.


 The complaint alleges that this statutory scheme for providing financial assistance to sectarian and nonsectarian schools violates the Establishment Clause in that its primary effect is to advance religion and in that it results in an excessive entanglement of state government in religion. The complaint, also, alleges a violation of the Free Exercise Clause of the First Amendment in that the statute constitutes compulsory taxation for ...

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