The state and religious education


THE STATE

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AND

RELIGIOUS EDUCATION

by

ROBERT C. HARTNETT, S. J.

and

ANTHONY BOUSCAREN

Edited by Charles Keenan, S. J.

THE CALIFORNIA SCHOOL TAX REFERENDUM

Supreme Court On Released Time

Dr. Conant On Private Schools

Catholic Schools Are American Schools

AN AMERICA PRESS PUBLICATION



ABOUT THE AUTHORS ...

Rev. Robert C. Hartnett, S.J., former Director of
the Department of Political Science, University of De-

troit. is Editor-in-Chief of America. He has written two

previous booklets on educational aspects of “separation

of Church and State” in the United States: Equal Rights

for Children (1947) and Federal Aid to Education

(1950), both published by The America Press.

Dr. Anthony Trawick Bouscaren, Associate Pro-
fessor of Political Science, University of San Francisco,

has written extensively on the Christian Democratic

parties of Europe. He has been very active in the move-

ment to protect private education in California through

tax exemption.

AMERICA, National Catholic Weekly Review, is published by
The America Press, 70 East 45th Street, New York 17. For
information or sample copies address Circulation Manager.







THE STATE

and

RELIGIOUS

EDUCATION

by

ROBERT C. HARTNETT, S.J.

and

ANTHONY T. BOUSCAREN

Edited by Charles Keenan, S.J.

THE AMERICA PRESS

70 East 45th Street, New York 17, N. Y.



Nihil Obstat: Rt. Rev. John S. Middleton

Censor Deputatus

Imprimatur : Francis Cardinal Spellman, D.D.

Archbishop of New York

July 25, 1952

The Nihil Obstat and Imprimatur are official declarations that a book

or pamphlet is free of doctrinal or moral error. No implication is
contained therein that those who have granted the Nihil Obstat and
Imprimatur agree with the contents, opinions or statements expressed.

(This formula is now in general use in the Archdiocese of New York)



CONTENTS

By Robert C. Hartnett, S.J.

1.

The McCollum Case: Government May Not

Aid Religion 5

2. The Zorach Case: Retreat from McCollum .... 13

3. Dr. Conant Raises the Divisive Bogy 23

4. Community Relations of Catholic Schools 32

By Anthony T. Bouscaren

5.

California: Tax Exemption for Private Schools 41





1. The McCollum Case:

Government May Not

Aid Religion

ItJ.ONDAY, April 28, 1952 will go down as a landmark
in American constitutional history. On that date the
U.S. Supreme Court, by a 6-3 decision, put limits on
the sweeping ban on “aid to religion” it had laid down
five years earlier and upheld the New York type of
“released time” religious teaching. The case was that
of Zorach v. Clausen et al. (members of New York
City's Board of Education)

.

Tessim Zorach and Esta Gluck, Brooklyn parents,
had challenged the constitutionality of New York
State's “released time” law, which permits off-the-
premises religious instruction of public-school pupils

one hour each week during school hours. The plain-
tiffs were said to have children attending, respectively,

Protestant Episcopal and Hebrew Sunday schools.
What they objected to was adjusting the public-school
day for purposes of religious training by private

groups.

The case was on appeal from State courts. The
New York Court of Appeals, with one dissent, had
held the RT program constitutional in July, 1951 (Am.
8/4/51, p. 433) . The eyes of all those concerned with
Church-State relationships under our Constitution

were turned toward our highest tribunal in Washing-

ton. Would the court extend or limit the McCollum

5



decision? More broadly, would it interpret our Fed-
eral Constitution as requiring almost unlimited secu-

larism in public education, and, indeed, in American
public life generally? Or would it interpret our law
as allowing enough cooperation with religionists to
introduce a religious leaven into public education—
if only through the release of pupils one hour a week
for this purpose?

Everson-McCollum Background

The importance of the Zorach decision calls for an
entire chapter on the constitutional and social setting
in which it was rendered. A separate chapter will treat
of the majority and minority opinions in the case.

In the Everson (1947) and McCollum (1948) cases,
the Supreme Court adopted and applied a truly revo-
lutionary doctrine of “separation of Church and State”
under our Constitution. Let us re-examine exactly
what it was.

Everson v. Board of Education of Ewing Tp. (New
Jersey), decided on February 10, 1947, was the fam-
ous “bus ride” case. At issue was a State statute which
allowed local school districts to reimburse parents

from tax funds for the cost of bus rides for children

attending nonprofit, nonpublic schools, such as parish

schools. The court divided (5-4) in favor of the con-
stitutionality of the New Jersey statute.
Though close, the decision satisfied the proponents

of nonpublic religious schools. It was the constitu-

tional doctrine which Justice Black then evolved that

caused alarm. The doctrine was promptly challenged
by the present writer in the America Press booklet

Equal Rights for Children (1947) . At that time, how-

ever, relatively few people seemed to realize how
dangerous the Everson doctrine was.

Why did so few people then take alarm? The rea-
son was twofold. In the first place, the court's deci-

6



sion (that such reimbursement was legal) was rather

inconsistent with the premises oi the dogmatic and

wholly novel “separation” doctrine from which the

decision was supposed to flow. Hence the case really
confused the issues. Protestants did not appear very

happy about the ruling, which favored Catholics, and

failed to realize how the new doctrine could be turned
against Protestants. Catholics, on the other hand, saw
that the ruling safeguarded their rights, so they seemed

to say: why get high blood-pressure about the doctrine
it was based on? 4

The Black doctrine in the Everson case, however,
was of much more far-reaching significance than the
decision in favor of bus rides for children attending

nonpublic schools. The new doctrine consisted of
three unprecedented propositions, enunciated by Jus-
tice Black:

1. “The ‘establishment of religion’ clause of the
First Amendment means at least this: neither a State
nor the Federal Government can set up a church.
Neither can pass laws which aid one religion, aid all
religions or prefer one religion over another.” (The
unprecedented insertion was “aid all religions.”)

2. “No tax in any amount, large or small, can be
levied to support any religious activities or institu-

tions, whatever they may be called, or whatever form
they may adopt to preach or practise religion.” (This
whole proposition was unprecedented, but the phrase
“in any amount, large or small” was radically so, since

there is an old legal maxim that “the law is not con-
cerned with very small matters.” It runs, de minimis
non curat lex .)

3. “That Amendment [the First] requires the state
to be neutral in its relations with groups of religious

believers and nonbelievers; it does not require the
state to be their adversary.” (This is perhaps the most

revolutionary novelty in the Black doctrine, that Amer-

7



ican governments must be neutral, not as between
different sects, which was our traditional doctrine, but
as between believers and unbelievers. Hundreds of
cases can be pointed out in which “neutrality'' is a
chimera: the state must favor one side or the other,
belief or unbelief. Our governments have always, in
general, favored belief, e.g., by chaplaincies, tax ex-
emption and dozens of other ways.)

The McCollum Case
The country had to wait only a year to be hit be-

tween the eyes by the implications of this triumph
of secularism in our legal system. It was hit by the
famous McCollum decision on March 8, 1948, the
formal title of which was People of State of Illinois
ex . rel. McCollum v. Board of Education of Cham-
paign County, III., et al. This was the Champaign
“released time" case. It involved no statute but simply
the practice whereby public-school pupils were “re-
leased" one hour each week for religious instruction.

In Champaign, this instruction was given in public-

school classrooms, as it was in many other localities.
In all, about 800,000 pupils were receiving on-the-

premises RT instruction in the United States in 1948.
Apart from this circumstance, the Champaign RT pro-
gram was similar to all other RT programs, whether
conducted on or off public-school premises. An inter-
faith Council of Religious Education, consisting of

representatives of the Catholic, Protestant and Jewish

communities, supplied the teachers at no cost to tax-

payers. Enrolment was perfectly optional, at the be-

hest of parents. The privately engaged teachers of re-
ligion furnished reports of attendance to the public-

school authorities, since the teaching was done during

a period when pupils were required by law to be in

school. In Champaign, the superintendent of schools

had to approve of the teachers, merely to make sure

8



that they were able to teach. Children not attending

RT classes were kept busy with secular studies.
Mrs. Vashti McCollum, a professed atheist and

mother of ten-year-old Terry, whom she withheld from
RT classes, objected to this program on constitutional
grounds. She said it was an “aid” to religion, that it
“embarrassed” Terry, etc. It can be admitted that

some of the administrative features of the Champaign
system were imperfect. There was no reason why they
could not have been corrected.

Justice Black, however, for an 8-1 court, declared

the Champaign RT arrangement unconstitutional.
After describing it in detail, he declared:

The foregoing facts . . . show the use of tax-sup-
ported property for religious instruction and the close
cooperation between the school authorities and the
religious council in promoting religious education.
The operation of the state's compulsory education sys-
tem thus assists and is integrated with the program.
. . . Pupils compelled by law to go to school for secular
education are released in part from their legal duty
upon the condition that they attend the religious
classes. That is beyond all question a utilization of
the tax-established and tax-supported public-school
system to aid religious groups to spread their faith.
And it falls squarely under the ban of the First Amend-
ment (made applicable to the States by the Four-
teenth). . . .

Harking back to his novel doctrine in the Everson
case, Mr. Black thereupon ruled Champaign's RT
system unconstitutional.

Did this mean that RT programs not involving the
“use of tax-supported property for religious instruc-

tion” were also unconstitutional? The McCollum de-
cision left this issue in grave doubt. Justice Frank-

furter, in the course of a lengthy concurring opinion,

encouraged those who hoped it did not. He said that
RT, “as a generalized conception, undefined by dif-

9



ferentiating particularities/' was not at issue in the
McCollum case. In so many words he emphasized the
truth that only RT as it operated in Champaign was
being ruled out.

Reactions to McCollum

The McCollum decision caused a terrific furor.
Why? It may seem unkind to say so, but the chief
reason seems to have been this: it dealt a staggering
blow to the favorite Protestant solution to their gen-
erations-old educational dilemma. This dilemma was
how to combine their undeviating allegiance to the
public school with their equally binding commitment
to religious education of the young. In so far as the

McCollum decision imperiled all RT programs, not
merely the Champaign type, it threatened to be a
death-blow. Protestant leaders who had little en-
thusiasm for RT were likewise shocked, both because
the decision was a long step towards secularizing

American society and because it threw a roadblock in
the way of various efforts to restore some religious
elements to public-school teaching.

Jews had never been enthusiastic about RT. In
Champaign, for example, they had not held classes
for several years before the legality of the program

was questioned. Jewish leaders seem to have an in-

stinctive dislike, even an abhorrence, of anything in

public life which tends to identify Jews as Jews,
Christians as Christians, etc. At the same time, in the

name of religious liberty, Jewish parents demand that
their children be excused from public schools on Jew-
ish holidays. In itself, this demand is reasonable
enough, but how it rhymes with their opposition to
RT as ‘'divisive'' escapes me.

In any case, Jewish leaders tended to go along with

the McCollum decision and to withdraw their co-
operation from off-the-premises RT programs. It soon

10



became apparent that the Jewish community was al-
most solidly behind the Everson-McCollum doctrine
of absolute “separation of Church and State.” There
were exceptions, of course. As with Protestants, it was
probably true that the more concerned a Jew was
about the growth of secularism, the more difficult it
was for him to embrace the McCollum decision with-
out deep misgivings.

The National Education Association had never
taken kindly to RT, either. The chief reason, in my
opinion, is that RT publicizes the great vacuum in the
public-school system. RT practically says: “Since the
public schools cannot fully educate a child, religion-

ists must take over to make up for the deficiency.”
Much of the talk about “moral and spiritual values in
the public schools” has been an attempt to sell the

American people a secularistic substitute for religious
instruction.

The cold war, which became hot in Korea, has
awakened our people to the truth that the global con-

flict today is to a great extent a conflict between re-

ligion and irreligion. They are demanding that our
school system take heed of the religious content in

our American tradition. Since the public schools can-

not deliver on this demand, the NEA is anxious to
show that they can deliver something “just as good”

in the form of “moral and spiritual values.”

The NEA Educational Policies Commission's Moral
and Spiritual Values in the Public Schools (1951)
was an elaborate and (certainly from a public-rela-

tions point of view) an impressive effort in this direc-

tion. The only mention of “released time” occurs in
a paragraph appraising the reader of the ban laid down
in the McCollum decision on the Champaign plan.
There is no suggestion that off-the-premises RT might
still be constitutional, much less any expression of
hope that it might be. No, the NEA is not at all

11



friendly to this expedient, devised to teach what the
public schools cannot teach, namely, religion.

Secularistic liberals welcomed the McCollum ban.
In fact, they eagerly embraced the whole Everson-
McCollum doctrine. Mrs. Agnes Meyers of Washing-
ton, D. C., has been one of the most articulate of them,
but she is only one among a great number.

Catholics, of course, deplored the decision as forcing

American society farther down the road to unbelief.
The hierarchy severely criticized it in their November,
1948 statement, the full text of which appeared in the
Catholic Mind for January, 1949.

Finally, the nation’s State courts and many mem-
bers of the legal profession found the Black doctrine
of absolute “separation” rather confusing and far too
dogmatic. Mr. Robert F. Drinan, S.J., did a round-up

for America, “McCollum decision: three years after”

(2/24/50, pp. 611-613), in which he documented the
reactions among lawyers and judges.

Problem Before the Court

In the Zorach case, the Supreme Court faced a
serious dilemma of its own making. To have con-
demned off-the-premises RT would have been to
broaden the McCollum decision and to have dis-
mantled RT programs enrolling perhaps two million
pupils. Moreover, it would have increased dissatisfac-
tion with the public schools. On the other hand, to
adjudge New York’s RT legal meant modifying the
Everson-McCollum doctrine, only recently adopted.

How the court saved the religious rights of parents
without too obviously jettisoning the Black doctrine

will be shown in the next chapter.

12



2. The Zorach Case:

Retreat from McCollum

Against the background of the triumphant secular-
ism of the Black doctrine on “separation of Church
and State,” we can now see how far the Douglas doc-
trine adopted by the Supreme Court in the Zorach
case has gone to rescue us.

New York’s RT Program
What was before the court on April 28, 1952? It

was the alleged unconstitutionality of New York
State’s released-time program.

The history of off-the-premises RT in New York
City and State is rather interesting. This method of
reaching public-school pupils with at least an hour
of religious instruction each week was tried out there
in the 1920’s. The present writer recalls reading in the
late Dean E. P. Cubberley’s Public School Administra-
tion his simple explanation of why the experiment
failed. The Catholics, he said, supplied the teachers,
but Protestants and Jews were at that time unable to
supply them. Constitutional objections to the pro-

gram were then raised, too, but the State judiciary
upheld the system.

In 1940, the State Legislature wrote into its Educa-

tion Law the provision that “Absence for religious
observance and education shall be permitted under

13



rules that the commissioner [the State Commissioner
of Education] shall establish" (§ 3210, subdiv. 1 b)

.

The commissioner duly issued his regulations pro-
viding for purely optional dismissal of pupils one
hour each week, on written request of their parents.
The school authorities kept records of registrations
and weekly reports of attendance. New York City's
Board of Education issued supplementary rules, pro-
hibiting any announcement in the schools relative to
the program and throwing full responsibility for at-
tendance upon parents and the religious organizations
conducting the program.

A Popular Program
This time RT caught on very well, probably because

by 1940 the American public was beginning to realize
the relevance of religion to the world conflict between

democracy and totalitarianism. By 1952, some 105,000
out of less than 600,000 pupils enrolled in New York
City's public elementary schools were also enrolled in

RT classes. Upstate, another 120,000 were in attend-
ance. So out of about 1.5 million children in the State's

public grade schools, 225,000 (or one in seven) were

getting released-time religious instruction. For the

country as a whole the proportion of pupils in RT
classes is less than one in ten.

Besides being aware of the undeniable popularity

of the program in New York, perhaps the court re-
alized that 67 per cent more children are attending
Protestant day schools today than in 1937. The total
is only 187,292, but it symbolizes the growing dissatis-

faction of Protestants with government schools from

which religious education is excluded.

More important, the nine justices of the Supreme
Court had to face squarely the unquestionable fact

that countless, literally countless, forms of cooperation

between government and religion have been meshed

14



into our political and social system in the course of
our history. With the expansion of the ‘‘welfare state,”
more and more occasions for such cooperation are
arising. The Everson-McCollum doctrine enunciated
by Justice Black would require a dismantling of all
these arrangements, some of them going back to the
very infancy of the Republic.

Even the proclamation of Thanksgiving Day once
a year by the President of the United States stood in
open conflict with the Black doctrine. It is an ‘‘aid”
to religion. It contravenes the alleged ‘‘neutrality”

between believers and unbelievers which the court
wrote into the First Amendment in 1947. It costs
money to publish that proclamation every year, too.
Thus it runs afoul of the Black prohibition on the use
of any tax, ‘‘large or small,” to ‘‘support religious ac-

tivities or institutions, whatever they may be called.”
This is perhaps the least expensive but the most deeply
rooted of the American traditions that ‘‘violated” a
law that never existed—that is, until discovered by

Justice Black in 1947.

The Douglas Revision

The first thing to do with a plainly bad law is at
least to revise it. The obvious way to revise a law read
into the Constitution by a court is for the court to

repair its own bungling the first time the opportunity
arises. Put simply, that is what Justice Douglas and
five of his colleagues did in the Zorach case.

Mr. Douglas himself had concurred in the McCollum
decision. Even apart from this circumstance, the easi-
est way to retreat from a bad ruling is to ‘‘distinguish”
the present case from the one in which the error was
committed. So Mr. Douglas, for the court, began by

pointing out that what he and his colleagues had
found particularly offensive to “separation of Church
and State” in the Champaign (McCollum) case was

15



absent in the New York (Zorach) case. The RT in-
struction in New York was not given in public-school
classrooms, for example. “All costs/’ he declared, “in-
cluding the application blanks, are paid by the re-
ligious organizations.”

In the McCollum case, the court had placed great
stress on the circumstance that “the operation of the
state’s compulsory education system thus assists and
is integrated with the program.” This is the “coercion”
argument. “Pupils compelled by law to go to school
for secular education [note the assumption that the

reason for compelling pupils to go to school is to get
merely secular schooling; this was one of the points
at issue, whether the whole purpose of public educa-
tion had to be exclusively secular] are released in part
from their legal duty upon the condition that they
attend religious classes.”

Meeting the objection that even the New York
system involved such compulsion, as Justices Black,

Jackson and Frankfurter in their dissents vigorously
insisted it did, Mr. Douglas waxed somewhat heated.
“It takes obtuse reasoning,” he rejoined, “to inject any

issue of the ‘free exercise’ of religion into the present

case.”

No one is forced to go to the religious classroom
and no religious exercise or instruction is brought to
the classrooms of the public schools. A student need
not take religious instruction. He is left to his own
desires as to the manner or time of his religious devo-
tions, if any.

The record before the court, he went on, showed no
evidence of coercion of any kind. It it did, a “wholly

different case would be presented.” The court there-
fore threw out “coercion” as an argument that either

the “free exercise” of religion or the “no establish-

ment” clause of the First Amendment had been vio-
lated.

16



How Absolute Is Separation?

The most important part of the majority opinion
was that which dealt with the meaning of “separation
of Church and State” in so far as that “principle” or
“doctrine” was enshrined in the First Amendment.
The court began by declaring: “There cannot be the
slightest doubt that the First Amendment reflects the
philosophy that Church and State should be sepa-
rated.” This is undoubtedly true. The controversial
issue has been: how “absolute” is this constitutional
separation

f

Most of us have been content to deny that it was

ever meant to be absolute. Many writers have come
to the edge of the distinction Mr. Douglas proceeded

to make, but (unless memory has failed me) none
ever “hit it on the head” the way he did. After accept-
ing the general idea of “separation,” Mr. Douglas

observed:

And so far as interference with the “free exercise”
of religion and an “establishment” of religion are con-
cerned, the separation must be complete and unequi-
vocal. The First Amendment within the scope of its
coverage permits no exception; the prohibition is
absolute.

This is an excellent analysis. The question is not: are
the religious prohibitions of the First Amendment
“absolute”? The question is: in regard to what are
they “absolute”? Mr. Douglas has answered the ques-
tion as clearly as can be by saying: precisely in regard
to laws 1) “respecting an establishment of religion,”

or 2) “prohibiting the free exercise thereof”

This makes “separation” (as the late Michael Wil-
liams used to say) “ineluctably clear.” If government
and religion must be kept absolutely separate, they
can have no relations with one another. But if there
are only two relationships they absolutely must avoid

17



(government action “prohibiting the free exercise” of
or “establishing” religion) , the field is left open for all
other relationships which fall short of these two spe-
cific prohibitions.

That is precisely what Mr. Douglas, for the court,
went on to declare to be our fundamental law:

The First Amendment, however, does not say that
in every and all respects there shall be a separation of
Church and State. Rather, it studiously defines the
manner, the specific ways, in which there shall be no
concert or union or dependency one on the other.
That is the common sense of the matter.

This sort of sense is not very “common,” unfortu-
nately. Nor is what follows:

Otherwise the state and religion would be aliens to
each other—hostile, suspicious and even unfriendly.
Churches could not be required to pay even property
taxes. Municipalities would not be permitted to
render police or fire protection to religious groups.
Policemen who helped parishioners into their places
of worship would violate the Constitution.

The court then cited the “references to the Almighty
that run through our laws, our public rituals, our cere-

monies” to prove that, unless its new definition of the
scope of the First Amendment is the only valid one,
we would be “flouting” that Amendment right and
left. “The nullification of this [N. Y.] law,” warned
the court through Mr. Douglas, “would have wide and

profound effects.” This sentence alone shows that the

majority had become aware of the vast and truly

chaotic implications of the Black doctrine.

“We Are A Religious People”

What proves beyond all dispute that the Supreme
Court has radically revised the Everson-McCollum

doctrine on “separation” is its reaffirmation of the

proposition that “we are a religious people whose in-

18



stitutions presuppose a Supreme Being." We force no
one to believe; we show "no partiality towards any
one group" of believers. (Without saying it in so

many words, the court thereupon rejected the alleged
"neutrality" of our governments as between believers

and unbelievers. It did so in the following passage:

When the state encourages religious instruction or
cooperates with religious authorities by adjusting the
schedule of public events to sectarian needs, it follows

the best of our traditions. For it then respects the re-
ligious nature of our people and accommodates the
public service to their spiritual needs.

To hold that it may not would be to find in the
Constitution a requirement that the Government show
a callous indifference to religious groups. That would
be preferring those who believe in no religion over
those who do believe.

This is a magnificent statement of the political truth

that the state must protect and promote the existing
social organization of society whenever political pro-
grams rub shoulders with existing voluntary associa-

tions and popular customs. Unless it does so, the mul-
tiplication and expansion of public services will gradu-
ally cause the forcible erosion of freely established

nonpublic agencies in social life.

This is the great danger of the "welfare state." It

can be just as hostile to freedom as totalitarian re-

gimes, even though the absorption and displacement
of free institutions proceed at a slower pace and less
perceptibly. Mr. Douglas at least caught a glimpse

of the way religion was being "angled out" of Ameri-
can life when he observed:

But we find no constitutional requirement which
makes it necessary for government to be hostile to re-
ligion and to throw its weight against efforts to widen
the effective scope of religious influence.

When the constitutional history of our era comes to

19



be written, will not Mr. Douglas be singled out as the
jurist who perceived this lurking danger in time and
arrested it? For this reason, in my opinion, the Zorach
decision will be recognized as a great piece of juris-

prudence.

When Mr. Douglas declared, in his conclusion, that
“we cannot read into the Bill of Rights such a philoso-
phy of hostility to religion,” he really reversed the in-
evitable momentum of the Everson-McCollum theory.

The Three Dissents

The only way to deal briefly with the dissenting
opinions of Justices Black, Jackson and Frankfurter
is to single out what seems to be their common fallacy.
They all insist on the element of “coercion” inhering
in any system whereby the compulsory public-school
system is “adjusted” to “cooperate” with religious

arrangements.

Any shadow of “coercion” inhering in such arrange-
ments, they seem to forget, is cast by the coercion in-
herent in the kind of public-school system we have
set up. Compulsory public schooling (through taxa-
tion, school-attendance laws and the severe economic
pressure on parents to send their children to tax-sup-
ported schools) exercises an unfair and unjust coercion
on parents and pupils to begin with. This coercion is
applied to all, to the often insurmountable disad-

vantage of believers in religious education .

All released-time does is to try to reduce this un-

fair and unjust coercion, to bring it within tolerable
limits, to ease the still serious burdens which State

governments impose on those who 1) are coerced into
paying taxes to support a secularized public-school

system, 2) are coerced into sending their children to

some school, and 3) are coerced, through economic
pressures out of all calculation more severe than the
nebulous “coercion” of RT, to send them to schools

20



that violate their religious beliefs about the kind of
education they are obliged to afford the young they
have brought into this world.

In adducing the “coercion” argument against RT,
Justice Jackson thought it appropriate to reveal that

he himself sent his children to “privately supported
church schools.” If all fathers were able to earn

$25,000 a year, of course, the economic coercion on
parents to send their children to public schools would
be much less compulsive. Very few of them, however,
have Mr. Jackson’s great talents. Our system would
still be unjust, but people would not feel the injustice
so keenly.

If the “coercion” issue is viewed in proper perspec-

tive, therefore, RT will be seen for what it is: an
expedient whereby existing compulsions, working seri-
ous injustices upon believers, are alleviated.

Conclusions

Catholics feel that Mr. Douglas should have re-

sorted explicitly to parental rights to justify the major-

ity ruling. This observation is largely valid. He could
have cited the unanimous Oregon decision of 1925 on
this score.

Even without such resort, however, the Douglas
opinion is monumental. The chimera of “political
ostracism,” the grotesque attempt to exclude religion

as an “untouchable” from the purview of government,

has come to an end.
From the point of view of dogmatic secularism, the

Everson-McCollum theory was perhaps “a noble ex-
periment.” The court tried something unheard of in
human history: to lay down a rule of law whereby
government had to ignore its own citizens in one of
their most important relationships, their religious re-

lationships. The warden of a Federal penitentiary,
whenever a minister of religion asked access to a

21



prisoner, was supposed to say, apparently: “I am ab-
solutely neutral. If I let you in, I'm 'aiding' religion.
If I keep you out, I'm interfering with 'the free exer-
cise thereof.' I don’t know what to do."

Yes, the learned justices danced on the point of the
needle of neutrality for five long years. Six of them,

persuaded (it seems) by Mr. Douglas, decided that

was about long enough. It surely was.

22



3. Dr. Conant Raises

The “Divisive” Bogy

The address delivered by Dr. James B. Conant, presi-
dent of Harvard University, to some five thousand
public-school educators attending the meeting of the

American Association of School Administrators in Bos-
ton on April 8, 1952 caused quite a stir. The AASA is
a powerful arm of the National Education Association.
No group would so warmly welcome an attack on the
“dual system of education’' in the United States, public

and nonpublic.
The basic issues into which Dr. Conant rather heavy-

footedly moved concern the momentous struggle be-
tween religion and secularism in American society and
the preservation of religious and educational freedom.
Dr. Conant, however, did not deal with these as the

dominant issues. In fact, his scant concern for educa-
tional freedom is alarming. The only place he men-
tions it, and there only implicitly, is where he says:
“Diversity in American secondary education is assured
by our insistence on the doctrine of local control.”

True, he mentions the competition between religious

and nonreligious education, but chiefly in connection
with Australia. Harvard’s president, it seems, had re-
cently visited that country, and he was prompted by
this experience to express his alarm over the fact

that Protestant secondary schools “down under” enrol

23



more students than tax-supported state schools. Al-
though he admits that a system of schooling which
suits one country may not suit another, the possibility
that Americans might, if given the opportunity, veer
away from public high schools seems to have shaken
him.

A Confused Address

Perhaps it will help if we take point by point what
strikes this writer as evidence of rather confused analy-

sis on the part of Dr. Conant.

1. The title of the talk is “Unity and Diversity
in Secondary Education.” Dr. Conant meant, it seems,
to confine himself to issues relating to high schools.

The arguments he uses, however, go far beyond that
one level of schooling. They seem to amount to a
condemnation of all nongovernmental schools at all
levels. To say the least, this sort of argumentation
is confusing. It should be noted, in passing, that late

in his address he does “plead with those who insist
on sending their children to denominational schools
that they might limit their insistence on this type of
education to the elementary level.”

2. Dr. Conant upholds civic and educational unity
as his ideal, but he plumps for an educational structure
(a state monopoly of secondary education) which leads
directly to uniformity and regimentation . He says that
“we shrink from any idea of regimentation, of uni-
formity as to the many details of the many phases of
secondary education,” but he does not seem to “shrink”

from uniformity in the substance

,

because at the very

end he states: “In short, can we have both uniformity
and diversity in secondary education? My answer is
that we can.” If he has read Plato's Republic and Aris-
totle's Politics, the latter's warning that Plato was con-

fusing uniformity with unity does not seem to have

impressed him.

24



Loaded Questions

3. Dr. Conant asks two loaded questions, under the
impression, it seems, that the rest of us should drop

dead at hearing them. The questions are loaded be-
cause he asks them of the “critics” of the public schools.
People ought to be able to prefer nongovernmental
schools for their children without being smeared as

“critics” of the public schools—just as people ought to

be able to prefer to send their sons to Harvard without
being labeled “critics” of municipal and State uni-
versities.

Harvard’s president wants to know: “Would you
like to increase the number and scope of private
schools?” I would, because a great many American
Catholics, for one thing, want to send their children
to Catholic high schools but cannot because there are

not enough of them to supply the demand. As for
other nongovernmental schools, if parents want them
and they are good schools, yes. His second question
is this: “Do you look forward to the day when tax
money will directly or indirectly assist these schools?”
Indirectly, certainly. This happens now in half the
States and there seems no reason for not “looking for-
ward” to the day when more States will provide such
welfare services as bus rides and, with State coopera-

tion, school lunches to children attending nonpublic

schools. Any crime in that?
As for direct state support, this is a question which

can be decided only by the American people. We have
had such support in the past, in various ways. But the
prohibition against tax support of sectarian schools

is entrenched in State constitutions. Catholics are di-

vided on the desirability of tax support of their schools.
Whether the American people will ever decide to re-
move these constitutional barriers is quite doubtful.
Nobody is going to shout down those of us who believe
that a more just system could be devised. Dr. Conant

25



can argue against any change. Others can argue in
favor of it. In the end the American people will de-
cide. Isn’t that the democratic way—the way of free
debate and discussion? It there anything “un-Ameri-
can” in all this?

4. Dr. Conant charges that “many sincere Protes-
tants, Jews and Catholics . . . believe that secondary
education divorced from a denominational religious
core of instruction is bad education.” His answer to
them is that “they erroneously assume that the tax-
supported schools are not concerned with moral and
spiritual values.” Not at all. Such people are simply
well enough posted on this subject to realize that “a
denominational religious core of instruction” and what
goes by the name of “moral and spiritual values” are
not at all the same thing. The difference may mean
nothing to Dr. Conant, but since he has no authority
in this field and since the difference means a great
deal to the “many sincere Protestants, Jews and Catho-
lics” he refers to, the president of Harvard could not

have left them more unsatisfied by what he apparently
thought was an answer.

5. “We do not have and have never had an estab-
lished church,” says Dr. Conant. He is wrong, but
not so completely wrong as when he goes on to say:
“To my mind, our public school should serve all
creeds.” If there is one thing the public schools can-

not serve it is religious creeds. He no doubt meant to
say, “children of all creeds.” The trouble is that the
public schools, apart from such indirect assistance as

“released time” religious instruction, cannot serve

many millions of American parents and their children
in the way they most want to be served through the
school system, namely, through formal religious in-

struction. Again, this may not matter to Dr. Conant,
but it matters to many millions of American citizens
and taxpayers.

26



“Private Is Not “Exclusive”

6. Throughout the address, Dr. Conant confuses
“private” education in the sense of rather exclusive

schooling, such as that given at Groton, with non-

governmental schooling generally. He says he is “emo-
tionally committed” to the public schools. No doubt.
His emotions can hardly serve as a rule for those who
see important values in other types of education.

He admits that criticism of the public schools on
the ground that they do not adequately provide for
gifted students has some “validity.” Later he reverses
his field by rejecting the suggestion that some (whom
he erroneously identifies with the “well-to-do”) should

get a different high-school education from others

(whom he erroneously identifies with “the poor”)

.

The confusion in Dr. Conant’s social philosophy—in
his concept of democratic “equality,” for example—is
somewhat too serious for treatment here, though one
feels that it is the root of his other confusions.

In any case, by confusing two altogether distinct

types of nongovernmental schooling. Harvard's presi-
dent has moved away from, rather than toward, the
time when he hoped that the lines would be “clearly
drawn and a rational debate on a vital issue can pro-
ceed.” One has to stick much more closely to the rules
of logic to bring about that happy eventuality.

7. Dr. Conant entirely ignores the problem of pro-
ducing leaders in American democracy. Here his
trouble lies in the field of political science. He says
that in the United States “all the people” govern. His
own political scientists at Harvard, for some of whom
this writer has the highest respect, could have re-

minded him (if necessary) that ours is a representa-
tive, not a mass, democracy and that the great function
of the electorate is to choose representatives to do the
governing. Our people probably have enough common

27



sense to know that our schools must produce men
and women of exceptional talents and training for
this function. Harvard itself has undergraduate and
graduate programs designed to this end, and the en-
trance requirements are high. Harvard, in a word,

does not work on the Jacksonian principle that any-
body can be a good public official. It certainly does
not work on the proposition that “all the people” do
the governing in the United States.

8. Dr. Conant properly expects the public schools
to teach the young “the distinction between decisions
arrived at by ‘due process’ and those obtained by social
pressures—by duress . . Yet what is he doing but
building up social pressures against nongovernmental
schools? He cannot impair them very much by “due
process of law” because their right to exist was unan-

imously upheld by the U.S. Supreme Court in the
Oregon school case in 1925.

Questions For Dr. Conant

If it be permitted to put several questions to the

president of Harvard, after doing him the courtesy of
answering those he has put to us, perhaps the follow-

ing might be in order:
1. Dr. Conant, do you think the state has the right

to set up a monolithic, monopolistic system of tax-sup-
ported education which imposes upon all children,
regardless of the conscientious objections of their

parents, a creed of secularistic ethics? Do you think
the application of the coercive power of the state to
mold all children into a secularistic uniformity is con-
sistent with democratic religious and educational and
cultural freedom? The “diversity” you speak of, deal-
ing with “details” of the high-school curriculum, is

not the religious and cultural diversity great writers

on democracy, certainly from Lord Acton on, have

held up as the hallmark of democratic liberty. Your

28



“diversity” deals with details. We are concerned about
the substance.

2. You object to Quebec's school system because it
perpetuates “two different cultural groups.” Now,
since religion is the most precious part of many, if not
most, culture systems, Dr. Conant, is your aim to gen-
erate in the United States, through a secularized pub-

lic-school system to which every child should go, a
monolithic, secularistic, uniform culture?

You cite Tocqueville, the perspicacious French au-
thor of Democracy in America (1835) . One of his
famous observations was his warning of the danger
that the United States would one day face in the form
of “the tyranny of the majority.” That danger is now
here, Dr. Conant. Don't you think that perhaps you
have moved far over on the side of “the tyranny of
the majority”?

3. Where does higher education fit into your con-
demnation of a “dual system” of American education,
Dr. Conant? Perhaps because Harvard is the most
richly endowed of American universities ($203 million;
Yale, the next highest, has $130 million) and because
Massachusetts has nothing at all formidable in the

way of a State university, you do not feel the squeeze
of State universities with biennial appropriations from

State legislatures running into the tens of millions.

Private universities in other sections of the country,

however, faced with such competition, are properly

concerned about their survival.

More important, those of us whose “emotional com-
mitments” are to colleges and universities counting
no multi-millionaires among their alumni and friends,
whose educational efforts are bent in favor of very
ordinary young men and women, many of them really
“poor,” cannot understand your disdain for nongov-

ernmental schools. You were talking about secondary
education, of course, but your arguments sound statist

29



in our ears, and we deeply dislike the idea of the
president of the wealthiest private university in the

world siding with the state monopolists. We have a
right, we think, to expect our richly-endowed elder
brother to fight our fight for the preservation of col-
leges and universities free from state domination, even
if the price of their freedom is to have to manage with-
out government funds.

4. What evidence have you, Dr. Conant, for the
sweeping assumption on which you have based your
alarming address? This assumption is that nonpublic
education is somehow a threat to American unity. We
deny it. It's up to you to prove your very serious
charge. Were you following the elementary rules of
logic when you built an address of national and per-
haps international, significance on an unproved and,
we think, unprovable assumption? If you have pro-
found reasons for questioning the democratic right of
nonpublic high schools to exist in the United States,

shouldn't your address have been devoted to an airing

of them so that people could evaluate your reasons?
Of course, if your assumption is no more than an
“emotional commitment," the absence of reasons is
explained.

Let me say this, Dr. Conant, in all seriousness.
There are millions of Americans, besides the 28 mil-
lion American Catholics, who love America every bit
as much as you do and for reasons which you appa-
rently do not understand. They love America precisely
because, in the full tide of the unfolding of democracy,

America protects their “cultural diversity" and their

right to enjoy the kind of religious and educational

liberty denied today in many of their homelands. The
kind of statist thinking in your address is the only kind

of thinking that could weaken the bonds of their

patriotism. You have already impaired civic unity in
this country. If the same kind of thinking spreads, it

30



will set up a chain-reaction of dissension in this coun-
try such as you will be the first to deplore and regret.
And where will your drive for cultural uniformity
stop? Aren't books and the press and radio and TV
“dividing" our people? Aren't labor-management

squabbles? Are you thinking of imposing “uniformity"
on all these democratic differences?

5. Finally, are you really afraid of democracy, Dr.
Conant? Are you afraid that people are making free
choices in the selection of schools for their children

that offend your “emotional commitment" to govern-
mental schools? Isn't this being afraid of the very

feature that distinguishes democracy from totalitarian
systems—freedom of choice in the field of culture?

Honestly, Dr. Conant, I fear you are losing faith in
democracy. But don't be afraid. So long as Ameri-
can democracy is true to itself, it will easily survive

the imaginary dangers that plague you. What it can-
not survive, and nowhere on earth has survived, is a
“managed culture," a school system completely taken
over by the state for fear of “deviationists." When
government achieves a monopoly of the teaching of
history and the generation of “values" in the minds of
the young, democracy has received a mortal blow. Let's

keep our government limited, in the ancient democra-
tic tradition. The last thing we want to see in this
country is education, at any level, under the total

domination of the state.

31



4. Community Relations

of Catholic Schools

Some 2,000 Catholic educators from all over the
United States met April 15-18, 1952 in Kansas City,
Mo., for the 49th Annual Convention of the National
Catholic Educational Association. The theme of this
meeting, “Catholic Education and the American Com-
munity/’ embraced a host of questions to which insuffi-
cient attention has been given.

Up to the present, Catholic educators in the United
States have had to concentrate on their most immedi-
ate needs. With relatively meager resources, they have
had to apportion almost every moment of their time
and every dollar of their funds to the erection of build-
ings and the recruiting of teaching staffs—the very
skeleton of a school system. In high schools and col-
leges they have had to outfit laboratories and stock
and manage libraries. Extracurricular activities, of
course, not least among them athletics, have absorbed
time and money.

In this relentless and ever-expanding process, we
have become ingrown. Opponents label our system a
“segregated” school system. In a sense it is: but not

in an altogether evil sense nor wholly through our own
doing. Through state monopoly of public educational
funds, the American people have driven us into seg-
regation as the only way to preserve our distinctive

32



educational content and purpose. All private schools
have been increasingly segregated in this sense, and
for the same reason—to preserve their freedom to be
different.

The time has now come for us to study how to offset
the disadvantages of being different while retaining

its advantages. We can offset them, I think, and must
—for our own sake as well as the sake of the American
community at large.

“Society” and “Community”

To grasp the problem with which we are dealing,
we must understand exactly what is meant by “society”
and “community” and how they differ, not only from
one another, but from the “state.”

“Society” expresses a very general concept. As used
by sociologists (and their science is by definition the

science of society) , “society” means the all-embracing
network of relationships by which human beings carry
on their lives together in an orderly way. There is a
world society. There are national societies, such as the
French or American. One can speak, indeed, of Latin-
American society, or Pan-American society, or Euro-
pean society, since under certain aspects the people

embraced by such terms do lead a life “together” in an
orderly way. Similarly, one can speak of “economic

society,” and even apply that term to larger or smaller
areas and populations.
Used in its broadest sense, as sociologists use it,

“society” is seldom applied to anything less compre-

hensive than a national society, though an area like

our own South may be large enough and distinctive
enough in its traditions and in its social and economic
relationships to admit of the term “Southern society.”

The term “American society” therefore includes just
about everything in the United States which has any

social significance. It includes our economic system

33



and all its elements. It includes our family life and
even all individuals in their relations with others. It

includes our cultural life (education, science, religion,
literature, the arts) and our recreational life (enter-
tainment, sports and diversions of all sorts) . For rea-
sons that will be explained below, it seems better to

use the term “society” so as to exclude political life,

which comes under the concept of the “state” rather
than that of “society.” The latter is then a “residual”
rather than an “over-all” term.

The idea of “community” is characterized by greater
intimacy and immediacy than “society.” It is best veri-
fied in the neighborhood or the small town. People
there have more in common . They may all have to use
the same shopping center, the same public library, the
same postoffice, read the same newspaper and so on.
We talk about “community spirit” or “community
chests” or “your local communities.” The accent is on
cooperation among people who have frequent face-
to-face contacts in the same neighborhood, town or
city. Here, too, we can single out particular aspects
of living together and speak of “your local religious
communities” or even “educational communities.”

The important thing about both “society” and “com-
munity” for our present discussion is that they include

everybody . An individual, a family or an institution
can be a “good” or a “poor” member of a community.
It cannot become a nonmember. If we are going to
improve the “living together” of Catholic education

and the American community (with the accent on
local communities) , we must find ways and means of
“unsegregating” our schools, so to speak.

St. Mary's Academy of Oskaloosa, for example, must
be made an institution which all the people of Oska-
loosa regard as “one of our schools.” If people say,

almost as an afterthought, “Oh, I forgot, the Catholics

also have a girls' high school here,” that attitude of

34



“nearly forgetting" simply proves that St. Mary’s has

failed to establish itself as one of the schools of that

community.

How to Go About It

To be very specific, what can Catholic schools do
to weave their way into the life of their local com-
munities?

First of all, they must want to. I am taking it for
granted my readers understand that Catholicism really
cannot set up a society (in the full sociological sense
of the term) within a society, or even a community
within a community. In a way that is precisely what
our enemies accuse us of wanting to do. But living
together in a community does not permit of separate
communities: everybody has to use the same streets,
the same stores, the same transportation facilities, has
to face the same social problems of housing, recreation,
public morality and so forth. The social environment
common to all is what constitutes the community a
community. We can help shape it but we cannot
evade it.

Secondly, I think the best way to start is to study
how those Catholic schools have proceeded which have
succeeded best, so to speak, in “joining the human
race" wherever they are situated. The University of
Notre Dame, partly through athletics, partly through
scholastic programs, partly through care in all its pub-

lic relations, has (to my mind) done a very good job
nationally. My impression is that Marquette Univer-
sity has done the same in Milwaukee, and to some ex-
tent nationally. Many schools, secondary and colle-
giate, have done the same on a lesser scale.

The basic formula, of course, is to show interest in
the local community and its needs. Far too many
schools think of their local communities only as sources

of support for themselves. The University of Detroit

35



last summer did the reverse: it undertook to sponsor
an expensive civic pageant commemorating the city's
250th anniversary—after the City Council had backed
away from the financial risks involved. Bringing honor
to a community through any sort of achievement is a
sure way to its heart.

The ways and means of “communitizing" a school
range all the way from cooperating in “Fire Preven-
tion Week" or sending a flock of youngsters out to
assist in “Clean-up Week" to putting the school hall
at the disposal of civic groups. Providing well-trained

high-school bands for community celebrations is a
service people appreciate. We ought to resent being
left out of community enterprises. Our aim should be
to reach a point where people think of us first when
they want civic cooperation.

How many of our parish schools, high schools or even
colleges have ever invited public-school or other teach-

ers and administrators and city officials to visit their
institutions? Refreshments can be served and a spirit
of cordial informality engendered. Business and pro-
fessional leaders can be invited to address the students.

Local newspapers are always on the lookout for edu-
cational and human-interest stories. The possibilities
are endless—provided we don't insist on a “wall of
separation" of our own building.

All these and similar means of integrating our
schools with the local community are over and above
the basic contribution they should make: that of gradu-

ating students whose after-school lives are distinguished

by readiness to serve others. It might be a good thing

if we made a practice of evaluating our graduates
on this score.

To appreciate fully the dimensions of this problem
of properly relating Catholic education to the Ameri-

can community, we must now turn our attention to
what we mean by the “state."

36



Schools and the “State”

“Society” and “community” arise immediately out
of our dependence on one another for truly human
and humane living. For social organization to endure
and prosper, however, it must have a principle of
order

,

which is provided by the political authority of
the state. The state is the people politically (not
merely socially and economically) organized. Political
society is distinguished from nonpolitical society by
the possession of something unique: the authority to

lay down rules of conduct (laws) binding on all and
enforceable, if necessary, through police action.

The state, of which government (legislature, execu-
tive and judiciary) is the organ, is distinct from society.
Society is the area of freedom, the state is the area of

coercive power. The purpose of this power is to pre-
serve an ordered freedom, i.e., to protect and promote
a satisfactory type of social organization. The coercive
power of the state is not the enemy of freedom but it$
guardian. By and large the state performs its function
best the more it succeeds in establishing, through just
laws and well-adapted social legislation, a political
framework within which the creative nonpolitical (so-

cial, economic, cultural) forces of society and of local

communities are encouraged to operate to their maxi-

mum effectiveness.
The state can fail to perform its proper function in

either of two ways. One is through a lack of initiative,
as when it allows the economically powerful to exploit
the economically weak or allows private interests to
pillage the natural resources of society or in any one

of dozens of ways permits the benefits and burdens of

social life to be apportioned without regard to social

justice. The state can never bring about a perfectly
just distribution of wealth, but it can and must try to

minimize the obvious and gross violations of the proper

37



balance. We may not always know what are the precise
requirements of social justice, or how to bring them
about by state intervention. But we can often see what
are intolerable and unnatural inequities. If the state
fails to remedy them, it fails in its duty.

The other danger, perhaps more imminent today, is
that of excessive and too far-reaching interference in
the free areas of social organization. In trying to re-
dress the balance in favor of social justice, the state

often extends its coercive arm much farther into such
fields as education, health and social welfare than is at
all necessary or at all compatible with the nature of a
free society. Ideally, the state should always aim to
assist social institutions and agencies to perform their
appointed tasks, rather than to replace them with pub-
lic

(
i.e political) agencies.

A simple illustration will exemplify this principle.
American society, left to itself, could not provide re-
tired workers with even minimum protection against
the hazards and hardships of impoverished old age.
The Federal Government therefore invoked its taxing
power to establish our system of Old Age and Sur-
vivors' Insurance. The intervention of the state was
kept to a minimum: the levying of social-security pay-
roll taxes on both employers and employes. At the age
of 65, if they retire, workers get the benefits in checks

from the Federal Government. They can use the
money at their own discretion. If the Government
had, for example, used this money to set up public old
people's homes, it would have unnecessarily restricted
the liberty of the aged to live wherever they preferred

and to spend their benefits in whatever ways they found

most congenial to their personal happiness. The dis-
turbance of social customs and social organization
(e.g., of family life) has, in fact, been kept to a mini-

mum. Indeed, social security has made it more possi-
ble for children to help support their parents at home

38



by providing them with social-security benefits to start
with.

To some extent State and local governments have
done the same with regard to health needs. Public-
assistance benefits are given to private hospitals in

payment of the hospital bills of the indigent. The Hill-
Burton Act (Am. 2/9/52, pp. 499-501) helps by fur-
nishing public funds for the erection of private hos-

pitals. Here, too, the state is preserving and promot-
ing social organization, instead of replacing it by an
expanding political organization dominating the field
of social welfare.

In the field of education, however, our public policy

has been just the opposite. The States have substituted
a system of public education, incorporated into the

structure of State governments, for what might have
become a flourishing nonpolitical educational system,
assisted and regulated by the States.

American communities are too inured to this system
to realize what they have lost. The chief loss has been
religious education . In itself, religious education is

part and parcel of the educational process. Not only
Catholics but hundreds of thousands of Protestants

accept this truth. But teaching religion is not a proper
function of the state. By absorbing American elemen-
tary and secondary schooling into the governmental

structure, our people have disabled their schools from

providing the most important part of education, name-

ly, religious education.

Even released-time religious instruction, which our
people want as part of our social system, is still op-

posed by some—not because religious instruction is npt
desirable but simply because it cannot (the argument

runs) be fitted into a system of schooling identified

with our political system. The dilemma of trying to
educate our young while finding the door shut on the
knowledge they most need will remain insoluble so

39



long as our schools remain a department of govern-
ment.

Catholic schools, at the cost of vast sacrifices on our
part, must preserve the true concept of education un-
impaired by the inroads of excessive politicizing of
schools. We can prove to our local communities that
our kind of schooling is superior. If we want to gain
greater recognition than we have so far gained, let's
not look to governments for such recognition. Let's
look to the people of our own communities.
American communities

,

indeed, can learn to ap-

preciate Catholic education as much more valuable
than they have reckoned it to be. If, in the distant

future, a more just relationship between public funds
and all American education is to be devised, it must
come from within the bosom of American communi-
ties. That's where we live and move and have our be-
ing. Unless we prove our claim to better treatment at
that level, we shall never prove it, and the serious
threat to freedom involved in the growing state mon-
opoly of schools will keep gathering momentum. The
very existence of our schools is at stake.

40



5. California:

Tax Exemption for Private

Schools

California is the only State in the Union which taxes
nonprofit private schools of lower than collegiate level.

Private colleges and universities are tax-exempt. These
schools are owned and operated by religious, charit-
able and hospital organizations. Included are Catho-
lic, Lutheran, Seventh Day Adventist, Episcopalian,
Baptist and Methodist grammar and high schools.

In May of 1951 Governor Earl Warren signed As-
sembly Bill 3383, the Waters bill, which sought to
confer tax exemption on these schools. This bill was
passed 108-3, and was pronounced constitutional not
only by the Legislative Counsel, but also by the office

of the Attorney General of California. This legislation

would have become law within ninety days had not
an organization calling itself the California Taxpayers
Alliance gathered sufficient signatures (five per cent

of the State's registered voters) to qualify the issue for

a referendum at the November general election. The
result is that now a majority of California's voters
must vote “yes" in November to sustain the law.
The California Taxpayers Alliance (not to be con-

fused with the eminently respectable California Tax-

payers Association) is urging a “no" vote, and is
going out of its way to inject anti-religious bias and
hatreds into the campaign. The character of the

41



Alliance's propaganda may be gauged from its leaflet
‘‘Why Californians Must Again Say No!". In words
that might have been lifted from Paul Blanshard, this
declares that the Alliance is engaged in “a battle
against the continuing purposes of the Roman Cath-
olic Hierarchy to attain political power through the
control of all education by the diversion of public

money for the support of their own parochial school
system now."

Californians of many varied and contrasting religi-
ous, economic and political backgrounds have joined
together to form Californians for Justice in Education.
This organization comprises hard-working citizens

who are donating their time and efforts to lift an
unjust tax burden off the shoulders of the nonprofit
private schools of less than collegiate level.

Background

In 1901 California granted tax exemption to Stan-
ford University, on the ground that this university con-
tributed to the public welfare by educating thousands

of young Californians. In 1914 all other nonprofit
private colleges and universities in the State were
granted a similar tax exemption, and for the same
reason. These schools included the University of

Southern California, Loyola of Los Angeles, Santa

Clara, College of the Pacific, St. Mary's and the Uni-
versity of San Francisco. Tax exemption to welfare
institutions is also granted in California to churches,

charitable organizations, YMCA hotels, orphan asy-
lums, cemetery property and hospitals, according to

traditional American practices. The granting of tax
exemption to nonprofit private grammar and high
schools merely extends to these the principles observed

otherwise in California, and throughout the nation.

The great influx of population into California since
1944 has strained the school systems to the utmost.

42



Public schools taxed most of their districts up to the
legal limit—five per cent of the assessed value of the
property—and were unable to take care of further
students. Nonprofit private schools engaged in build-
ing programs to help take care of the overflow. In
San Francisco, one-third of all high-school children
attend these nonprofit private schools, which are
mostly parochial. California law provides that all
children must attend school until they graduate from
high school or reach the age of sixteen. The vast
majority of California children are taken care of by
either the public schools or the nonprofit private

schools. Only an infinitesmal number attend fashion-
able “finishing schools'* or other profit-making pri-

vate schools. These latter do not qualify for tax ex-
emption under the Waters Act.

Ever since the Oregon law forcing all children to
attend public schools was declared unconstitutional
by a unanimous U. S. Supreme Court in 1925, it
has been settled law that attendance at parochial as

well as other approved private schools satisfies State

educational requirements. California parents sending

their children to these schools have, however, been

forced to carry a triple load found nowhere else in the
United States. In addition to paying their fair share

of taxes to support the public schools, these parents

support financially the nonprofit private schools to

which they send their children. The latter burden is
a double one—the maintenance of the schools and the
taxes imposed by the State on these schools. These
parents are, in effect, penalized for exercising their

inalienable and legal rights. No other State in the
Union taxes nonprofit private schools.

The California Taxpayers Alliance is not opposed
in principle to tax exemption for nonprofit private

schools. It is not opposed to tax exemption for non-

profit private colleges and universities, or any of the

43



other tax exemptions for welfare institutions in Cali-
fornia. It is opposed only to tax exemption for non-
profit private schools of less than collegiate character,

and especially parochial schools. During the last ses-
sion of the California legislature tax exemption was
granted to tuna-fish boats and stud horses, with no
outcry from the Alliance.

The Alliance is principally opposed to exempting
grammar and high schools operated by religious
groups, especially Catholic groups. Since this stand is

inconsistent with its attitude on tax exemption in gen-
eral, the Alliance knows it can win only by appeals to
anti-Catholic bias and religious hatreds. It claims that
tax exemption for these schools is a violation of the
"principle of separation of Church and State/' Ac-
cording to the Alliance, therefore, the other forty-seven

States in the Union must be violating this "principle."
Interestingly enough, no member of the Alliance has
suggested that the principle is violated by tax exemp-
tion for church buildings. If exempting churches does

not violate the Constitution, it is hard to see how ex-
emption of schools violates it.

Furthermore, there were no protests from the Cali-
fornia Taxpayers Alliance when the legislature granted
tax exemption to Stanford, USC, Santa Clara and
other colleges and universities of nonprofit, private
character. Members of the Alliance were no doubt
somewhat set back also by the recent U. S. Supreme
Court decision regarding released-time programs in

New York. The Court declared that the Constitution

. . . does not say that in every and all respects there
shall be separation of Church and State. . . . Otherwise
the State and religion would be aliens to each other.
. . . We find no constitutional requirement which
makes it necessary for government to be hostile to re-
ligion and throw its weight against efforts to widen the
effective scope of religious influence.

44



Increasing numbers of Californians are now aware of
the tremendous welfare contribution being made by
the nonprofit private schools. These schools, which
meet the State educational requirements, directly save
the State and all the taxpayers the full amount of
educating each child in these schools. Every private

dollar contributed to the construction and operation
of a nonprofit school saves more than the tax dollar
otherwise needed for a public school. Precisely be-
cause they recognized this fiscal fact, California legis-

lators voted 108-3 to grant the tax exemption.

Savings for the State

It costs California taxpayers $203 per year to educate

each student in the grammar schools, and $338 per
year to educate each student in the high schools. Were
the State forced to take on the 183,000 children now
attending nonprofit private schools, it would cost $41.5
million a year. The average cost per pupil of school
construction in California is presently $1,943. For the

public schools to provide the additional space and
accommodations for these 183,000 children would cost
the California taxpayer $355.5 million. It has been

estimated that current annual revenue derived from

taxing nonprofit private schools amounts to something
in the neighborhood of $750,000. This amounts to

approximately the price of one pack of cigarettes per

California taxpayer per year. Any businessman who
can avoid spending $355 million to build schools and

an annual $41 million to run them, merely by declin-

ing to levy $750,000 a year, would surely do so.

Assembly Bill 3383 (the Waters Act) , amended Sec-
tion 214 of the Revenue and Taxation Code of Cali-
fornia by extending tax exemption to “property used

exclusively for school purposes of less than collegiate

grade and owned and operated by religious, hospital
or charitable funds, foundations or corporations which

45



property, funds, foundations or corporations meet all
the requirements of the section” (among which re-
quirements is the nonprofit stipulation) . In signing

the Waters Act, Governor Warren said: “Colleges and
universities conducted by such groups have been ex-
empted from taxation by our [State] Constitution since
1914. The exemption authorized by Assembly Bill
3383 is in principle the same and accomplishes a like
purpose.”

Among the organizations supporting tax freedom
for schools in California are the Los Angeles County
Board of Supervisors, the San Francisco Board of Edu-
cation, the American Federation of Labor and the
Congress of Industrial Organizations. The Very Rev.
James M. Malloch, Dean of St. James Episcopal Ca-
thedral of Fresno, said of the Waters Act:

The policy of exempting nonprofit private schools
from taxation is thoroughly consistent with our good
American principle of relieving such institutions as
churches and hospitals from a tax burden which they
cannot bear while rendering public service.

Mr. F. G. Ashbaugh, of the Religious Liberties Com-
mittee, Pacific Union Conference, Seventh Day Ad-
ventist Church, declared:

The power to tax is the power to destroy. It is a
well-established principle in America that in order to
exercise religious freedom the church must be free of
tax burdens. In the interest of separation of Church
and State we strongly support tax relief for religious-
sponsored schools.

The other States of the Union are unanimous, 47-0, in
favor of tax relief for nonprofit private schools. The
California legislature passed the Waters Act by a vote

of 75-0 in the Assembly and 33-3 in the Senate. No
important or well-known California civic group testi-

fied against the bill. The only organization that is
opposing the tax exemption is the California Tax-

46



payers Alliance, an organization frankly opposed
solely to tax relief for religious-operated schools. It

remains to be seen whether California voters will sup-
port their legislature and Californians for Justice in
Education by a “yes” vote in November. Senator
Paul Douglas recently observed:

I hope that we may preserve differences in educa-
tion. I am a believer in the system of public education,
but I am also a believer in a system of education,
standing beside the public system, in which parents
who have certain religious standards and certain ideas
of moral training may be permitted full freedom to
send their children to this alternative type of school.

In the 1920's that theory of private education was
challenged by the Ku Klux Klan. And in the State of
Oregon a law was passed sweeping away all private
schools. Let us be eternally grateful to the United
States Supreme Court that by a unanimous vote they
declared that law unconstitutional.
And I hope that that spirit never revives in Amer-

ica, because we need public education and we also
need alongside the system of public education the al-
ternative types which can develop certain values prec-
ious to some groups and in which, by competition,
the two can strive for excellence.

Hitler and Stalin built their totalitarian states largely
through monopolistic, state-controlled education.

America will look with great interest to California to

see if its people next November recognize the necessity
and the value of private schools in their educational
system.

47





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