a family in any one income bracket could supplement the tax relief under reasonable conditions of sacrifice, and the amount of supplement provided by religious schools charging reduced tuition. A level of exemption might then be set which would insure that a family could as easily choose a secular as a sectarian school and would reasonably have in hand at least enough for a minimal school choice outside the public sector.

2. Limit the income levels at which parents could receive tax relief, perhaps in a graduated form, to a maximum of 20,000.-This would reduce the overall cost of the legislation and would make its purpose and effect of undoing Equal Protection violations indelibly clear. The basic purpose of the bill as outlined in sections I and II above would otherwise be undercut by its structure and effect.

3. Provide stringent protections against racial discrimination in any form by any school defined as “eligible" under the proposed legislation.-The absence of such protections in the bill (in spite of any other federal laws which might be applied in cases of schools receiving federal aid or tax exempt status) substantially weakens the legislation to Equal Protection attack, undermines the avowed purpose of the legislation, and might result in an intolerable aggravation of racial inequalities in areas where desegregation is still incomplete. Although non-public schools may at present be better integrated than many public schools, protection must be provided against government encouragement of private segregatory decisions.

4. Provide for the severability of the legislation in a way which preserves tax relief for parents of secular non-public school children if the Court finds that those making religious choices may not participate. This preserves an important principle of the bill, might convince the Court of the secular purposes of the legislation, and does not close the door on revised legislation aiding the excluded parents once the Court has ruled.

The above analysis has attempted to provide a clear secular rationale for tuition tax relief, a tactic for giving this rationale its greatest legal impact, and some suggested structural changes in the legislation designed to most accurately reflect the rationale and simultaneously meet the Establishment Clause restrictions as enunciated by the Supreme Court. Even with all the suggestions it is impossible to predict what the Court will do. The most legally satisfactory answer would be to provide across the board education tax relief; but this suggestion seems too complicated for the present. I believe I would rather predict the weather in New England than the Courts decisions in an area such as churchstate relations. This statement has suggested a substantial revision of the rationale of the bill and the general understanding of what the public has to lose by sticking to the present structure of school finance. What is clear is that without these changes the legislation is in for an extremely hard time in the courts.

Re Tuition Tax Credit Act Testimony.

Hon. DANIEL P. MOYNIHAN,

Hon. BоB PACKWOOD,

Senate of the United States,

Washington, D.C.

BALL & SKELLY, ATTORNEYS AT LAW, Harrisburg, Pa., November 30, 1977.

Dear SENATORS MOYNIHAN and PACKWOOD: Thank you for your letter of November 18.

I will be happy to provide you with an essay, analysis or brief on the Bill from the point of view of constitutionality. Should you desire me to testify, and I have no conflict in schedule on the date selected, I shall likewise be willing to testify.

As a constitutional lawyer, it is my opinion that S. 2142 is constitutional. However there is one feature of it which, it is now clear, will raise a major problem for parents of children attending nonpublic schools. This matter goes to the very point made by you, Senator Moynihan, in your September 26 statement: "Diversity. Pluralism. Variety." The point is that to have the benefits of the Tuition Tax Credit Act, the parent of a private school child must have his child enrolled in a school which is "accredited or approved under State law.” On its face, this sounds quite simple and reasonable. But in actual fact, it can result in further enormous leverage to convert private schools into public schools-that is, to make financially hard pressed private schools pay the ex

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treme penalty of submitting to saturating control by the state as the price for their parents getting the tax credit break. This is no mere speculation, as the recent decisions of the Supreme Court of Ohio and Vermont in, respectively, State of Ohio v. Whisner and State of Vermont v. La Barge show.

If I deal, in part, with this most serious problem and suggest amendatory language to the "accredited or approved" wording, do you still invite me to testify?

Very truly yours,

WILLIAM B. BALL.

P.S.-I enclose, for your scrutiny, a copy of an address which I gave to a group of lawyers (plus Steve Arons, whom I think you know) last year. Enclosure.

William B. Ball is a partner in the law firm of Ball & Skelly, Harrisburg, Pennsylvania. He is a member of the New York, Pennsylvania, and United States Supreme Court bars. Mr. Ball is a constitutional lawyer who has appeared in numerous litigations throughout the United States, several of which produced landmark decisions related to education and schooling.

1977 by William B. Ball. All rights reserved.

Litigation in Education:
In Defense of Freedom

Where benevolent planning, armed with political and economic power, becomes wicked is when it tramples on people's rights for the sake of their own good.

C. S. Lewis

Looked at in one way, our people may be divided into those who fear 1984, those who ardently want 1984, and those who don't care about 1984. Of course, 1984 won't come in that specific year; it will arrive in separate parts; and only when those parts are all assembled and working together, will most people realize that 1984 has arrived.

A good many of the shipments have already arrived. One container, marked "The New Family," is now being uncrated. It proves to be no family at all, but merely individuals, bound to nothing but self, who (only with the permission of the state) will breed occasionally, their offspring then belonging more to the state than to the parents.

The very use of the doublethink term, "family," brings to mind another of those containers, one called "Communication." It is not used to communicate-that is, to impart ideas -but rather to obliterate ideas and to engender instead emotions. This box has been around for a while. We are all familiar with its extravagant employment in Communist and Nazi slogans like "Democratic Centralism" and "Strength Through Joy." Such slogans aim by symbols and sounds to evoke an emotion. Don't imagine that those million demonstrators in China who hanged Madame Chiang Ching in effigy were individuals who, having studied the issues, made decisions to demonstrate. Indeed our own television networks have long been dabbling in the magic of propaganda.

A good many more packages have been shipped in. Read