Justice White made a similar argument in his Nyquist dissent: "Constitutional considerations aside, it would be understandable if a State gave... parents who prefer to send their children to nonpublic schools a call on the public treasury up to the amount it would have cost the State to educate the child in public school, or, to put it another way, up to the amount the parents save the State by not sending their children to public school. "In light of the Free Exercise Clause of the First Amendment, this would seem particularly the case where the parent desires his child to attend a school that offers not only secular subjects but religious training as well. A State should put no unnecessary obstacles in the way of religious training for the young." 99 84 86 Although a majority of the Court was not persuaded by the Free Exercise claim presented in Nyquist, there is nothing to prohibit members of Congress from being more sensitive to the position that "the free exercise principle should be dominant in any conflict with the anti-establishment principle." As Professor Laurence H. Tribe has written in his treatise on "American Constitutional Law": 86 "Such dominance is the natural result of tolerating religion as broadly as possible rather than thwarting at all costs even the faintest appearance of establishment." 87 (3) Equal protection of the laws Another factor for Congress to consider is the value of equality as it relates to educational opportunity. It is clear from Pierce v. Society of Sisters" that the state may not monopolize the educational process to the extent of compelling all students to attend a public school. More recently in Wisconsin v. YoderR the Court affirmed a limited right of students to an immunity for a compulsory school attendance law, where the objection to attendance was based on religious convictions. But the Court has not expanded this sort of religiously based immunity into a theory of an entitlement of all students-whether in public or nonpublic schools to share in the educational resources which government controls and distributes. Indeed, the recent equal financing case, San Antonio School District v. Rodriquez and the more recent Medicaid abortion funding cases together teach that although an individual may enjoy a right protected by the Constitution, the existence of such a right does not by itself create a corresponding obligation upon the state to fund the exercise of the right at all, much less on an equal footing. 90 91 When an equal protection argument for funding of church-supported nonpublic education on an equal basis with nonsectarian private education was presented in 1973, the Court rejected it unambiguously. Justice Powell wrote in Sloan v. Lemon: "The argument is thoroughly spurious.... Valid aid to nonpublic, nonsectarian schools would provide no lever for aid to their sectarian counterparts. The Equal Protection Clause has never been regarded as a bludgeon with which to compel a State to violate other provisions of the Constitution. Having held that tuition reimbursements for the benefit of sectarian schools violate the Establishment Clause, nothing in the Equal Protection Clause will suffice to revive that program." And in the context of a successful challenge to a Mississippi program whereby textbooks were loaned to students at racilly discriminatory private academies, Chief Justice Burger observed in dictum : "In Pierce, the Court affirmed the right of private schools to exist and to operate; it said nothing of any supposed right of private or parochial schools to share with public schools in state largesse, on an equal basis or otherwise. It has never been held that if private schools are not given some share of public funds allocated for education that such schools are isolated into a classification violative of the Equal Protection Clause." 84 Id. at 814 (White, J., dissenting). 86 Id. at 788-89. 1993 86 L. Tribe, American Constitutional Law 833 (1978); for a systematic attempt to reconcile the two religion clauses, see at pp. 819-34. 87 Id. at 833. 68 268 U.S. 510 (1925). 406 U.S. 205 (1972). 90 411 U.S. 1 (1973); but see Serrano v. Priest, 5 Cal. 3d 597. 487 P. 2d 1241 (1971). 91 Beal v. Doe, 97 S. Ct. 2366 (1977) and Maher v. Roe, 97 S. Ct. 2376 (1977); see also Poelker v. Doe, 97 S. Ct. 2391 (1977). 92 413 U.S. 825, 834 (1973). 03 Norwood v. Harrison, 413 U.S. 455, 462 (1973). 94 95 The Equal Protection argument need not, of course, be a bludgeon. Legal scholars and philosophers have fashioned more subtle arguments for an equitable distribution of resources necessary for meaningful educational choice than either Justice Powell or Chief Justice Burger acknowledged in 1973. Indeed, on the same day that Burger wrote the dictum in Norwood v. Harrison cited above, he wrote in dissent to the Nyquist decision: "In the instant cases as in Everson and Allen, the States have merely attempted to equalize the costs incurred in obtaining an education for their children.. It is no more than simple equity to grant partial relief to parents who support the public schools they do not use.' ... Although the Court as currently composed has not demonstrated an eagerness to engage in decisionmaking that would seek to distribute governmental resources more equitably, this may be as much based on the Justices' view of the proper functions of the judiciary and the legislative branch as it is on their view of the propriety of the substantive results of some of their recent decisions. And even if such judicial modesty is not the sole basis for these decisions, Congress need not and should not wait for directions from the Court on how to exercise the taxing and spending power committed to the legislative branch by Article I of the Constitution. A brief historical memory suffices to make this point. For there would have been no New Deal had the Congress in the 1930's deferred to the economic preferences of Justices like Willis Van Devanter, James C. McReynolds, George Sutherland, or Pierce Butler. It must also be noted that the current Court has not indicated a strong desire to engage in the sort of open confrontation with Congress relished by the "four horsemen." Hence if Congress were to enact legislation seeking to include students attending nonpublic schools on an equitable basis as beneficiaries of governmental resources, it is doubtful that the Court would destroy such efforts in a cavalier way. Final judgment on legislation must of course be reserved for the Court. For as Chief Justice Marshall wrote in Marbury, "it is emphatically the province and duty of the judicial department to say what the law is. . . ."" But Congress has at least an initial role to play in determining the constitutionality of legislation which it enacts under its Article I powers. By articulating a variety of constitutional values-freedom of communication and expression, free exercise of religion, equal protection of the laws, as well as the anti-establishment of religion principle as the legislative purpose or rationale of enacting this proposed tax benefit, Congress could be of service to the Court in the determination of the constitutional validity of this legislation. As Justice Bushrod Washington wrote in Ogden v. Saunders: "It is but a decent respect to the wisdom, integrity, and patriotism of a legislative body, by which any law is passed, to presume in favor of its validity, until its violation of the Constitution is proved beyond a reasonable doubt." 98 (4) Racial discrimination The bill as currently drafted authorizes a tax credit for tuition paid to an educational institution, without regard to whether the institution maintains a policy of racial discrimination in student admissions and faculty hiring and promotion. If the legislation were enacted without any language to correct this oversight, federal tax policy supporting and even encouraging the congressional taxing and spending power would have been exercised in a manner that would support and even encourage the undoing of the educational policy formulated in Brown v. Board of Education 100 and its progeny. As was poined out above, such a result is contrary both to case law and Revenue Rulings. But this result could be avoided by adding to the definition of an "eligible educational institution" language such as that contained in S. 1570, defining an eligible institution as a charitable, tax 101 94 See, e.g., Arons, note 56 suora ; and Tribe note 72 supra at 1129-36. See generally J. Rawls. A Theory of Justice 258-332 (1971). 96 Nyquist, 413 U.S. at S03 (Burger, C.J., concurring and dissenting) (emphasis added). 975 U.S. (1 Cr.) 137, 177 (1803). 98 25 U.S. (12 Wheat.) 213, 270 (1827); see also Fletcher v. Peck 10 U.S. (6 Cr.) 87, 128 (1810). 99By contrast, it should be noted that in the Wolman case, the most successful recent attempt of a State legislature to provide financial assistance to students attending nonpublic parochial schools. it was stipulated that none of the schools attended by the students benefited by the legislation maintained a policy of racial discrimination in the admission of pupils or in the hiring of teachers. 97 S. Ct. at 2598. 100 347 U.S. 483 (1954). 101 For a collection of school desegregation cases decided after Brown, see G. Gunther. Constitutional Law: Cases and Materials 716-44 (9th ed. 1975) and the current supplement to this volume at pp. 70-81. exempt organization under 501(c)(3) of the Internal Revenue Code, thereby incorporating by reference the revenue ruling referred to above. Or Congress could assert national educational and tax policy independently of the existing Revenue Ruling, by adding language like that found in a bill currently before the Minnesota legislature, H.F. 1449, which defines a nonpublic school eligible to participate in an educational grant program as a "school . . . other than a public school, wherein a resident of Minnesota may legally fulfill the compulsory school attendance requirements and which meets the requirements of Title VI of the Civil Rights Act of 1964 (P.L. 88-352)." It should be noted that the President's Commission on School Finance recommended in its 1972 Report that aid to nonpublic schools be conditioned upon full compliance with the Civil Rights Act of 1964, and full accountability to the public concerning enrollment data.103 III. Conclusion Our own conclusion is that with some amendments the Tuition Tax Credit Act of 1977 may well survive a challenge under the No-Establishment Clause of the First Amendment, although on the basis of recent cases decided under this clause the Court would scrutinize more carefully any substantial benefit even indirectly accruing to church-related elementary and secondary schools than to independent institutions of higher education. And it is our view that the remainder of the First Amendment-Free Exercise of Religion, Freedom of Speech, Freedom of the Press, Freedom of Association, Freedom of Assembly, and Freedom to Petition the Government for Redress of Grievances-when viewed together with the guaranty of equality implicit in the Due Process Clause of the Fifth Amendment, could provide members of Congress with additional constitutional rationales to support this legislation as a permissible way to support freedom of educational choice for all members of our society. STATEMENT OF ANDREW M. GREELEY, NATIONAL OPINION RESEARCH CENTER My name is Andrew Greeley. I am Program Director of the National Opinion Research Center, a social science institution affiliated with the University of Chicago. I propose to offer some comments on the subject of tax relief for parents of children attending private schools. In particular, I will base my comments on research done over the past fifteen years by a number of colleagues and myself on the impact of Roman Catholic parochial schools on the students who attended them. I should note at the beginning also that I am a Catholic priest, in canonical good standing (though not on the mailing list of my own archdiocese and not on the mailing list of the University of Chicago, for that matter). However, none of the research done on Catholic schools at the National Opinion Research Center was funded by the Roman Catholic Church. Funding agencies involved at various times were the Carnegie Corporation, the Carnegie Commission on Higher Education, and the National Institute of Education. I will address myself first of all to some generally held attitudes about Catholic schools: 1. The education young people receive in Catholic schools tends to be inferior to that they would receive in public schools.—Available evidence indicates that scores on standardized achievement tests are virtually the same in Catholic schools and in public schools, perhaps slightly higher in Catholic schools. They are of course much higher in Catholic schools in large cities where scores on standardized achievement tests tend to be very low. Furthermore, even holding constant parental education, occupation, income, those who have attended Catholic primary and secondary schools are much more likely to go on to higher education, and do achieve higher economic prestige and higher educational levels than Catholics who went to public schools. 2. Catholic schools, because they are limited generally to one religion, tend to be racially, religiously, and politically divisive.-In fact, all the available evidence indicates that Catholics who have attended Catholic schools are no less likely to have friends of other religious denominations than Catholics who have attended public schools. Catholic school Catholics are also no less likely to support school bond referenda which will assist public schools. Finally, on measures of racism 102 President's Commission on School Finance, Schools. People and Money: The Need for Education Reform (1972): see also President's Panel on Nonpublic Education, Nonpublic Education and the Public Good (1972). and anti-Semitism, those who attend Catholic schools have higher measures of tolerance than those who have attended public schools, whether the latter be Catholic or non-Catholic. Furthermore, in the last ten years, the impact of Catholic schools on racial and religious tolerance has increased. 3. Catholics send their children to parochial schools because, as Mr. Justice Powell put it in his recent Supreme Court decision, they are under canonical constraints to do so.-In fact, the empirical evidence shows that 80 percent of American Catholics are in favor of the continued existence of Catholic schools, a proportion which has not declined in the past fifteen years. The declining enrollment in the Catholic schools is the result of failure of the Catholic Church leadership to build new schools in the suburban areas of the large cities to which the Catholic population is moving. The decision has been frequently made despite pressures from the Catholic laity for construction of the schools. Whatever may have been the case in the past, the pressure for Catholic schools presently comes not from the clergy and the hierarchy but from the laity. 4. Catholic schools produce rigid and authoritarian personalities who take a narrow and inflexible approach to their religion.—In fact, the evidence shows that Catholic school Catholics are more likely to approve the changes in their Church since the end of the Second Vatican Council, and are more likely to display flexible religious and ethical attitudes. 5. Catholics really don't expect tax support or tax relief for their schools.-The data show, however, that three-quarters of the Catholic population do indeed support some sort of government help for the Catholic schools and that this proportion has not changed for the last decade and a half. Furthermore, the majority of American Catholics are convinced that it is anti-Catholic bigotry that interferes with government support for their schools. 6. Catholic schools made a major contribution in the development of the American Catholic Church and hence tax relief which supports them would be a direct aid to religion.-In fact, however, the correlations between number of years in attendance at Catholic schools and adult religious behavior are slight. The most powerful influence on adult religious behavior is the religious behavior of one's parents, particularly one's father, and the religiousness of one's spouse. Compared to father and spouse (whether it be husband or wife), the impact of the school on religious devotion is trivial. 7. Catholic schools tend to be racially segregated.—In fact, three-quarters of the children in Catholic families attending parochial schools are attending racially integrated schools. There has been a dramatic increase in attendance in Catholic schools of non-Catholic Blacks. It is estimated, for example, that in the city of Chicago one out of every ten Blacks is in a Catholic school and that perhaps twothirds of Blacks are not Catholic. We have little evidence as to the reasons for this choice by Black parents to send their children to Catholic schools-a choice which is occurring in all the large cities in the country where there are Catholic school systems. Neither government nor private research funding agencies seem interested in this extraordinary phenomenon. 8. Tax relief for the parents of children attending Catholic schools will put an undue burden on non-Catholic taxpayers.-In fact, however, the evidence seems to be that taxpayers get a great bargain in the continuation of Catholic schools. In New York, for example, the pupil operating cost at a Catholic school is $462, and at a public school is $2,647. Most of this difference has little to do with the somewhat lower salaries paid in Catholic schools. According to the research of Professor Thomas Bitullo Martin, most of the saving comes from much lower administrative overhead in Catholic schools. Again, in New York City there is one central office administrator for every 6,000 students in the Catholic schools and one administrator for every 234 students in the public schools. Central administration in the public schools costs in excess of $67,000,000 in New York; in the Catholic schools, $250,000. If there were no Catholic schools in New York City and similar cities, taxpayers would not only have to absorb the burden of educating the children now in the Catholic schools, but they would have to do so at a cost six times higher than the present cost. Some slight tax relief for the parents of children attending such schools appears to be an extraordinarily wise financial investment. 9. Catholic schools are closed institutions, run by Church authorities, with no opportunity for outside investigation or for parental control.-In fact, however, many if not most Catholic parochial schools in the country are administered by democratically elected school boards in the parish, the school boards sometimes even setting the budget and hiring the principal. The decentralization and the democratization of the parochial school in the years since the Second Vatican Council is one of the most extraordinary, indeed, most revolutionary educational developments in recent history. It has been ignored by the education establishment because the educational establishment is convinced there is nothing to learn from research on Catholic schools-and in the case of the review panels for the National Institute of Education, apparently is willing to reject in principle any research on Catholic schools which may "enhance their image." Half the schools, incidentally, are much more readily available for research and inspection than are public schools in many large cities. For many years scholars have not been able to research Chicago public schools but there has been no obstacle to research Chicago Catholic schools. If a complaint is made about ignorance of what goes on in Catholic schools, the fault lies not with the schools but with the university research institutions and private and public funding agencies. 10. Graduates of Catholic schools are not equipped intellectually for careers requiring scientific skills and the objective pursuit of truth.-In fact, however available research evidence shows that Catholics are now more likely to pursue academic and scientific careers than the typical white American, and are as likely as anyone else to be productive research scholars and to hold tenured faculty appointments at the country's best universities. And those Catholics who have attended Catholic schools are even more likely to successfully pursue scientific and academic careers than Catholics who have attended public schools. It is worth observing, incidentally, that those Catholics who have faculty appointments at the country's best universities are for the most part concentrated in the high quality state universities. They are still underrepresented at elite private institutions like Harvard, Yale, Princeton, and the University of Chicago. In striving to explain this phenomenon to me, one colleague remarked in all seriousness, "When women and Blacks are underrepresented at the best private universities, the reason is discrimination; but Catholics are underrepresented because of their intellectual inferiority." Nobody has, incidentally, suggested affirmative action for the country's largest minority. I would submit to you gentlepersons that most Americans who think seriously about an education and virtually all of the important people in the educational establishment accept the ten propositions I have cited above as true beyond any doubt or question, so true, in fact, as to be beyond examination, much less refutation. There are a number of names for men and women who cling to propositions despite substantial evidence that the propositions are wrong. Dogmatists is one of the more charitable names. It is perhaps obvious that I am in favor of legislation to provide tax relief for parents who exercise their constitutional right to educational freedom of choice, but in these remarks I do not intend to argue directly for such legislation; I merely intend to acquaint you with the scholarly research evidence against the conventional wisdom about Catholic schools, a conventional wisdom which, I am sure, would warn you of the dangers of providing tax relief to parents who send their children to such schools. THE HORACE MANN LEAGUE U.S. Senate, Committee on Finance, Subcommittee on Taxation and HONORABLE SENATORS: The Horace Mann League, a nationwide association of educators committed to the preservation and strengthening of the American public school system, wishes to record its respectful opposition to S. 2142, popularly called the Packwood-Moynihan Bill, which would grant tax credits to parents who send their children to nonpublic educational institutions. The opposition is based upon the strong conviction that the proposal is constitutionally infirm and is directly offensive to the First Amendment prohibition against the governmental establishment of religion. The United States Supreme Court has consistently applied two tests in assessing the constitutionality of similar plans designed to aid religiously-oriented educational institutions: (1) What is the "primary purpose and effect" of the law? and (2) Does the law create an "impermissible degree of entanglement" |