Equal rights for children : public welfare benefits for all American children


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EQUAL RIGHTS
FOR CHILDREN

DEMOCRACY

RELIGION

CHURCH-STATE

SECULARISM

FEDERAL AID

CONGRESS

I AMENDMENT
XIV AMENDMENT
SUPREME COURT

PUBLIC LAW 346
LUNCH ACT
TAFT BILL

N. J. BUS CASE

Public Welfare Benefits

for

All American Children

by
.

I

Robert C. Hartnett, SJ.



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V

EQUAL RIGHTS
FOR CHILDREN

Public Welfare Benefits for

All American Children

by

Robert C. Hartnett, SJ.

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



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CONTENTS

1. Religion and Secularism in American Democracy 5

2. Congress and the School Question 13

3. The Courts and Aid to Schools 21

4. Are Catholic School Children American Citizens? 29

Bibliography 39





1

Religioe and Secularism in

American Democracy

The atmosphere of educational and religious circles in the UnitedStates today is charged with tension created by the assertion and
counter-assertion of opposing claims about the “constitutionality” of

extending public services to the children of private—or what might
better be called semi-public—schools. The same tension arose in the
Senate hearings on the Taft bill to grant Federal aids to schools.

The most striking thing about the dispute is its sterility. Who is
the wiser when one side shouts that any form of state assistance to

the children of religiously conducted schools contravenes the “great

American principle” (for want of a more specific point of law to cite)

of “separation of Church and State”? As Professor James M. O’Neill

showed quite clearly in the June, 1947 issue of Commentary, a Jewish

review, this is simply confusing the real issues by appealing to “cate-

gorical slogans and unhistorical myths.” The technique being used is

familiar enough. The entire advertising industry is built on it. It is

known in psychology as the technique of suggestion. You merely keep
repeating a few well-chosen words until the public, without any

rational grounds or mental operation at all, finds the simple idea

implanted in its consciousness. We cannot meet a real issue by
avoiding the discussion of it. We cannot substitute slogans for the
investigation of facts and the application of such historical knowledge

and powers of reasoning as we possess to critical questions of public
policy.

Assumption of Secularists

My contention is simply this: we must uncover what Justice Holmes
very happily called “the inarticulate major premise” of those who are
arousing heated opposition to any form of state assistance to children

attending semi-public schools under religious auspices in the United

States today. What is back of this relentless opposition? On what
premise are educators and religious spokesmen operating when

5



they throw so much energy into the crusade to surround such chil-
dren with every possible disadvantage and economic discrimination
in the exercise of their constitutional right and the constitutional right
of their parents—the right, namely, to freedom of education?
The answer is obvious. The assumption they work on is that Ameri-

can democracy
y for which the schools are preparing future citizens,

has no religious roots, but is rooted in a secularistic, non-religious

view of human life, Mr. Justice Black worked on this assumption
in his majority opinion in the recent case of Everson vs. Board of
Education of Township of Ewing, the New Jersey school-bus case,
decided February 10, 1947. Although he upheld the New Jersey
statute providing free transportation for children attending private

schools, he plainly considered that the First Amendment made our
Constitution absolutely neutral towards the prosperity of religion

as a bulwark of American democracy. He wrote:

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 to another.

The first sentence is perfectly accurate, although its inclusion of

State governments comes, not from the First Amendment’s declared

restriction on Congress, but from the Supreme Court’s extension of

the restrictions of that Amendment to the States, by including it

under the term “liberty” in the Fourteenth Amendment, which is

directed against the States.

But the second statement goes too far in ruling out aid to “all

religions.” Those are the “weasel words” which betray the secularist

assumption of this type of thinking. To aid one religion without

aiding another would be discriminatory and in contravention of the

guarantees of the Fifth Amendment, by which no person may be
deprived of life, liberty, or property “without due process of law.”

It would be considered against “due process,” as more fully explained

in the Fourteenth Amendment where States are restrained, to favor

one religious group at the expense of others. But to rule out any

assistance, even indirect, to religious groups, however equitably dis-

tributed, is to construe our political system as unconcerned about

religious life in this country.

6



The practice of Congress contradicts this impKcation. But we are

not here concerned with practice but with principles. The assumption

that our American democracy was ever intended to divorce itself com-

pletely from religion is unhistorical.

Religious Tradition of American Democracy

To make the issue as clear as possible, let us admit that, as our

political system evolved, a secularistic tradition has taken root in

the minds of many Americans. We have no wish to deny it. The pro-
testations heard upon every side spring from this tradition. But what

right has it to claim a monopoly? That is the assumption that cannot

stand critical investigation. It can be shown historically: 1) that the

opposite tradition, the religious tradition in American democracy,

was the original tradition; and 2) that this tradition is still vigorous,

is kept alive, by millions of Americans and, as a matter of fact, is the

tradition of practically all American Presidents. Secularists are trying

to stamp it out. They are trying to marshal the power of the Federal

Government behind their view that our Constitution is founded on

principles repudiated by its Framers and repudiated by millions of

present-day Americans. They are trying to force, by very subtle

means, a gradual monopoly of cultural outlook upon this country

as being the only really American view of human life and political
organization.

To begin with, the Declaration of Independence is grounded upon

a religious view of human rights and the purpose of government.
They derive from “the Law of Nature and Nature’s God.” Jefferson
said that the Declaration expressed “the sentiments of all America.”

Jefferson himself very much later became more secularistic. But
as late as the publication of The Notes on Virginia, in 1784, he took

a very theological view of the basis of human liberty. Of the moral
evil of slavery, he wrote:

And can the liberties of a nation be thought secure, when we have re-
moved their only firm basis, a conviction in the minds of the people that
these liberties are the gift of God? That they are not to be violated but
by his wrath? Indeed, I tremble for my country when I reflect that God
is just; that His justice cannot sleep forever.

Jefferson wanted a nationally established church no more than

7



his Catholic compatriots. But to assume that he would side with

people who want to dissociate religious ideas from American politi-
cal thinking is to ignore plain declarations he made.

Now let us examine the Northwest Ordinance passed by the Con-
tinental Congress on July 13, 1787. In case anyone might object that

this throws no light on the meaning of the First Amendment, we
must remember that Madison introduced that Amendment in Con-
gress in June, 1789, and that the Northwest Ordinance was re-enacted

by Congress in 1791. Article III provided:

Religion, morality and knowledge being necessary to good government

and the happiness of mankind, schools and the means of education shall

forever be encouraged.

Could Congress have made a clearer declaration of its conviction

that the education of the citizens of American democracy should in-

clude religion? That ringing declaration is etched in stone upon the

Liberal Arts building at the University of Michigan, a university of

which Father Gabriel Richard was one of the original three co-

founders. Many State constitutions adopted it.

Washington’s Declaration

When President Washington decided to withdraw from public life
at the close of the most patriotic and constructive career ever placed

at the disposal of our nation, he summed up for his fellow citizens
the wisdom that distinguished him who was “first in war, first in
peace, and first in the hearts of his countrymen.” Did he assume

that our young democracy could thrive apart from religious convic-

tions? “Of all the dispositions and habits which lead to political

prosperity,” he soberly declared, “Religion and Morality are indis-

pensable supports.” Our present-day educators believe they can in-

culcate morality without religion. Not so Washington. “And let us
with caution indulge the supposition that morality can be retained

without religion . . . reason and experience both forbid us to expect

that national morality can prevail in exclusion of religious princfpfe.”

He then insisted, as all the Federalists did, that morality grounded in
religious belief was “a necessary spring of popular government.”

But that is not all. Washington directly connected the teaching of

religious morality with the function of our schools. For he immedi-

8



ately added: “Promote, then, as an object of primary importance,

institutions for the general diffusion of knowledge.”

These paragraphs, as a matter of fact, were composed by Alexander

Hamilton at the request of the President. Hamilton, John Jay, Rufus

King and Gouverneur Morris held these same convictions. Morris,

whose contributions to the Constitutional Convention were consider-

able, phrased his belief in the very same terms. He opposed the
French Revolution because the French overthrew the groundwork of

sound popular government—morality rooted in religion. It is hardly
necessary to state that Daniel Carroll and Thomas Fitzsimons, the

two Catholic members of the Constitutional Convention, held the

identically same view. Madison himself was religious, though the

peculiar political involvement of the Episcopal Church in Virginia

made him an extreme opponent of an established church in that State

and on the national level as well.

To pretend that the only American principle is one of official

neutrality towards religion as a public influence is to say that the

man who held the nation together during the Revolution and whose
chairmanship of the Constitutional Convention is always credited

with the success of that body—our first President—did not under-
stand the political system he saw to completion and presided over

during its first critical years. It is saying that Hamilton, who more

than anyone else made that system work, did not understand it.

Presidential Utterances

Who are the men who carried on this tradition of the inner con-
nection between American democracy and religion as a public support

of it? If you look through Richardson’s edition of The Messages and

Papers of the Presidents you will be amazed with what regularity our

Chief Executives have attributed to Divine Providence the prosperity

of our experiment in popular government and have publicly thanked

God for His blessings and urged our American people to join in
public thanksgiving. President John Adams in his First Inaugural
Address of March 4, 1797 cited as qualifications for his high office

... a love of science and letters and a wish to patronize every rational
effort to encourage schools, colleges, universities, academies and every

9



institution for propagating knowledge, virtue, and religion among all classes

of the people, not only for their benign influence on the happiness of life

in all its stages and classes, and society in all its forms, but as the only

means of preserving our Constitution from its natural enemies . . .

[italics added]

.

In his first Proclamation of a day of “solemn humiliation, fasting,

and prayer,” President Adams laid down these principles:
1. That “the safety and prosperity of nations ultimately and essen-

tially depend on the protection and the blessing of Almighty

God. . .

2. That ^^the national acknowledgment of this truth is not only

an indispensable duty which the people owe to Him, but a duty

whose natural influence is favorable to the promotion of that morality

and piety without which social happiness can not exist nor the bless-

ings of a free government be enjoyed. ...”

3. That this duty, “at all times incumbent, is especially so in sea-

sons of diflSculty or of danger ...”

4. That “all religious congregations” should “acknowledge before

God the manifold sins and transgressions with which we are charge-
able as individuals and as a nation ...”

He then urged that our people, “through the Redeemer of the
World,” and through “His infinite grace,” seek “repentance and re-

formation” as we are inclined to do “by His Holy Spirit.” The inter-

esting thing about this Proclamation is that it is frankly Christian

and supernatural. Adams had taken a foremost part in American
political affairs since the time of the Revolution. To say that he

completely misunderstood the basis of our democracy is to suggest

that such remarks received an unfavorable reception. But the Address

of the Senate and of the House in reply to this Proclamation was

most cordial. It is undeniable that the America of that day took it

for granted that our safety and national well being depended on our

religious spirit.

It is true that with Jefferson the religious note in Presidential

proclamations becomes more perfunctory. But it is always there.

Someone should publish in one volume all the proclamations of

days of public thanksgiving and prayer of our Presidents. Such a

volume would lay the ghost of the secularist assumption.

10



The most unequivocal statement of the religious basis of democracy

is to be found in the Annual Message delivered in person before

Congress on January 4, 1939 by President Franklin D. Roosevelt

—

who, incidentally, also urged a special day of prayer at other times.

Storms from abroad directly challenge three institutions indispensable

to Americans, now as always. The first is religion. It is the source of the

other two—democracy and international good faith.
Religion, by teaching man his relationship to God, gives the individual

a sense of his own dignity and teaches him to respect himself by respecting

his neighbors . . .

In a modern civilization, all three—^religion, democracy and international
good faith—complement and support each other.
Where freedom of religion has been attacked, the attack has come from

sources opposed to democracy.

Where democracy has been overthrown, the spirit of free worship has

disappeared . . .

An ordering of society which relegates religion, d^ocracy and good
faith among nations to the background can find no place within it for the

ideals of the Prince of Peace. The United States rejects such an ordering,

and retains its ancient faith [italics added].

Here we have the national spokesman of our American democracy,
exercising his constitutional function of addressing Congress on “the

state of the Union,” upholding our “ancient faith” in religion as the

backbone of free government.

How like the official pronouncements of President Washington
is this sounding of the depths of American political philosophy!

Roosevelt was no more afraid to declare his allegiance to religion as

the foundation of our constitutional system than Washington and

Hamilton. President Truman has followed in his footsteps.

American Political Philosophy in Summary

We may sum up this brief review of the sources and expressions
of our political philosophy in these propositions:

1. The original political philosophy of the men who wrote the
Constitution considered religion, and morality grounded in religion,

essential to free government.

2. Our Presidents, as constitutionally elected representatives of

our national political traditions, have unfailingly upheld a religious

11



view of American democracy. This is notably true of our annual

Thanksgiving-Day proclamations.

3. The secularistic view which would make religion a purely pri-

vate affair, unrelated to our national well being as a great state, is a

later distortion. It had a handful of representatives in the early days

—Tom Paine, John Taylor, Dr. Benjamin Rush—^but none of them
had anything much to do with the formation of the Union. Jefferson,
after returning from France, became progressively more secularistic,

diough never entirely so.

4. This secularist view has achieved a certain monopoly in

academic circles through the writings of V. L. Farrington, Carl

Becker, Charles A. Beard, Charles E. Merriam and practically all

American scholars. No widely-accepted writer has shown any interest
in recognizing the original religious tradition in our democracy, nor

shown any qualifications for appraising it.

5. The public-school system has canonized the secularist tradition

through its inability, by and large, to agree on arrangements by

which religion could be preserved in the curriculum. From this
vacuum, many public-school educators have advanced to the extreme

position of assuming that only a purely secularistic education is genu-

inely American. Any competing system is ‘Mivisive of national unity.”
This widespread attitude is dangerously undemocratic. It looks to

a state monopoly of education. It is moving, although only very

gradually, in the direction of the familiar totalitarian technique of

a politically “managed culture,” or a monolithic educational cartel.

This movement tends to undermine the distinguishing feature of

democracy—cultural diversity and cultural freedom. People who are
“alarmed” at freedom of education are alarmed at the most demo-

cratic freedom we have. It is an ominous intolerance, nonetheless

ominous because it uses seemingly innocent and subtle means of

eliminating what it dislikes by imposing on others economic discrim-

ination in the name of nationalism.

It is worth noting that secularism and economic discrimination

against children attending semi-public schools won a foothold in
State constitutions adopted long after our Federal Constitution. The

present drive is to impose it on the Federal System, where it would

be an alien innovation.

12



Congress and the School
Question

I
N ANALYZING the issues involved in the debate over the use of
tax revenue to extend public-welfare services to semi-public

schools, evidence has already been presented to show that the

assumption that American democracy is secularistic ignores the deep

religious tradition in our constitutional history. It was pointed out

how consistently the Presidents of the United States have given

expression to the original inner connection between religious beliefs

and the groundwork of our popular government.

Let us now turn to more concrete and specific evidence showing
that, as a matter of practice, our national Legislature has consistently,

especially in recent years, included private institutions as beneficiaries

of legislation by which Federal funds were appropriated for public-

welfare purposes. If the First Amendment implicitly rules out any use
of tax revenues by which religious institutions are benefited, however

indirectly—as opponents of Federal aid to semi-public schools assume
—then how do they explain the fact that a great majority of five
hundred and thirty-one members of Congress, in voting on a variety

of measures, have shown themselves quite unaware of any “great

American principle” making such use of Federal funds unconstitu-

tional? Congress has time and again taken the altogether reasonaMe

view that if public-welfare services are to be extended to aU the

citizens of the United States, and even to non-citizens, then no one

should be arbitrarily excluded from receiving such services because

he seeks them in an institution well qualified to supply them, even

though it may be conducted under private and often religious
auspices. Congress does not at all share the narrow-minded position

that otherwise qualified health and educational services, meeting

public standards, somehow become un-American^ when they are
rendered by organizations motivated by religious beliefs*

I am not here bringing into the discussion the closely connected

13



'question of the constitutionality of State legislation in this field. The

State constitutions now in effect were adopted long after the Federal
Constitution. Nearly all of them contain prohibitions of the use of

State revenue in favor of religious schools. This is a specific pro-

hibition not contained in the Federal Constitution or in the First

Amendment. These prohibitions can be interpreted narrowly or

broadly. They do not prevent States from allowing tax exemption to

religious institutions together with all other non-profit enterprises

with an educational, cultural or other public-service purpose. They

do not prevent nineteen States from providing free bus transportation

for all the school children of those States, whether they attend gov-

ermental or non-governmental schools. They do not prevent the

States of Louisiana and Mississippi from appropriating funds to pay

for the textbooks of all the school children in those States, whether

they attend governmental schools or not. State courts have upheld

such legislation as compatible with constitutional provisions in the

respective State constitutions prohibiting the use of State funds for

religious purposes. And they do not prevent States from appropriating
funds for temporary veterans’ housing in denominational colleges.

Constitutional Provisions

All I wish to say about this issue as it relates to the constitutional

provisions of the individual States is: 1) that the question be left

to the people of the States to decide, without being prejudged by the

assumption that American democracy cannot tolerate any public

support of religious enterprises, however indirect, without undermin-

ing some imaginary “great American principle”; and 2) that oppo-

nents of such State legislation as does exist, having been defeated in

their State courts in their attempts to destroy these arrangements, be

constrained from distorting the prohibitions of the First Amendment

of the Federal Constitution so as to introduce into our Federal sys-

tem a hostility and discrimination against private schools and hospi-

tals from which our national Constitution and legislation have been

happily free.

Let us make no mistake about the general tendency of the present

ferment on this question. The secularists are bent on making a

decisive change in our national policy. They realize that the time

14



has come when more and more Federal funds will be expended for

public-welfare purposes, especially in the field of education. They

realize, with no small measure of alarm, that their previous efforts

to starve out of existence religious education, and specifically Catholic

education, have failed. Their attempts in Oregon and to a lesser ex-

tent in Michigan to make parochial schools illegal were struck down

by the Supreme Court in the case of Pierce v. Society of Sisters in

1925, under the old Supreme Court. Their strategy now is to make
out that the First Amendment, which on its face prohibits Congress

only from establishing a national religion, actually embodies a “great

American principle” erecting a “wall of separation” between Ameri-

can political society—State and Federal—and all forms of religious
life, even to the extreme extent of disqualifying children from bene-

fiting by public-welfare legislation because they happen to be attend-

ing non-governmental schools.

The Practice of Congress

For the sake of clarity, let us first bring under review about eight

pieces of national legislation, apart from war measures, which prove

that our Congress has never understood the First Amendment as
erecting a “wall of separation” between our Federal Government and

religious institutions in this country.

In the first place, of course, one thinks of the official chaplains

engaged by Congress to open its own sessions. This is the oldest
example of the inner connection Congress has recognized as existing

between our national political system and religion. It is interesting

because the custom derives from the days of the foundation of our

Republic. It stands as irrefutable evidence that the secularist assump-

tion is of much later origin, and is an intrusion.

To take another non-education example, we can cite the aid the
Federal Government has given to private hospitals. Within the last

few years the Federal Government has recognized the need of more

ample hospital facilities in the nation’s capital. The choice lay be-

tween constructing an institution to be run by the Government and

allocating funds to private institutions to enable them to supply the.

desired services. The latter choice was made in the interests of econo-
my. George Washington University and Georgetown University, the

15



latter conducted under Catholic auspices, both had medical schools

and were therefore in a position to conduct hospitals. They received

the funds with which to expand their hospital services so as to meet

the public need. The fact that Georgetown University is a Catholic
university was not found a sufficient reason for refusing to go through

with an economical and efficient solution to a medical problem.

Federal funds assist many private hospitals.
Congress has taken care in the Federal Internal Revenue Code,

section 101(6), to exempt all non-profit educational, charitable, and

religious institutions from the Federal income tax. Schools con-

ducted under religious auspices have always enjoyed this exemp-

tion. Contributions made to such institutions are, of course, de-
ductible from income taxes. Religious institutions are treated like

all other charitable organizations in accordance with a well-estab-

lished national policy.

Though we take it for granted, it is worth mentioning that the

U. S. Post Office Department has always included religious organiza-

tions in its second-class, third-class and fourth-class mailing privi-

leges. No one has ever suggested that the Federal Government should
require religious publications to pay higher rates than others merely

because religious interests enjoy the same advantage all publications

enjoy by virtue of a postal rate which in effect is a form of subsidy.

For the Post Office loses money through the use of such mailing

privileges. No 'Vail of separation” has been erected there.
Now let us draw closer to the immediate issue and see how Congress

has dealt with non-governmental schools.

NYA Program

The National Youth Administration was established in June, 1935.

Early in 1935 an estimated three million people between sixteen and

twenty-five years of age were on relief. The main object of the NYA
program was to enable young people to attend high school and college

and thus take them out of the overflooded labor market. Within a

year about 600,000 youths were participating in NYA activities. They
were employed part-time in the schools and colleges (or in vocation-

training on-the-job) and earning enough either to defray the cost

of tuition in large part, or partially to support themselves. They

16



worked in school libraries, or as laboratory assistants, or in pro-

fessors’ oflSces. Although the money they earned was paid out to

them personally, the colleges profited by their services. No discrimi-
nation was made between governmental and non-governmental

schools and colleges in this national program. The social problem

was national in scope. The young people were dealt with as Ameri-

cans. Congress did not try to dictate to them what schools they had

to attend to qualify for the benefits of this public-welfare legislation.

Thousands of them attended schools conducted under religious aus-

pices. They were not penalized for their religious beliefs. Congress

handled the program in a perfectly fair and American way.

The same can be said of our peacetime Reserve Officers Training

Corps. This program was conducted through the Department of

War. Army officers were put in charge of the program in any college
which wished to include it as part of the curriculum. Whatever ex-

penses were involved came out of Federal funds appropriated for

the purpose. The important aspect of this program to notice is that

it was not an emergency measure but a routine policy.

School Lunch Act

Neither was the Federal school-lunch program an emergency

measure. This law, passed on June 4, 1946 provided an annual

appropriation of $75 million to enable school children to get whole-

some nourishment in school at reduced prices or even wholly free

of charge. An additional ten million was voted for the purpose of
improving dietary programs and lunch-room equipment in the schools.

This form of “cooperative federalism” followed the familiar pattern of

grants-in-aid by requiring the States to match the Federal disburse-

ment by State funds. But the important phase of the Act, for our

purposes, was that Mr. Flannagan of Virginia, who introduced the
bill, took care that all the nation’s children should benefit by it.

No discrimination was allowed. If a State wished to avail itself of
the grant, it had to allow its benefits to go to the children of non-

governmental schools either through its own or Federal agencies.

Finally, the Legislative Reorganization Act of 1946 includes a per-

tinent provision. It seems that Congress felt that the educational

opportunities of the young boys who serve as pages were inadequate.

17



Section 243(a) of the Act therefore authorized the Secretary of the

Senate and the Clerk of the House to arrange with the Board of

Education of the District of Columbia for the education of the pages.

The District was to be reimbursed for any additional expenses. Then

follows this paragraph : *

(c) Notwithstanding the provisions of subsections (a) and (b) of this

section, said page or pages may elect to attend a private or parochial
school of their own choice: Provided, however. That such private or paro-
chial school shall be reimbursed by the Senate and House of Representa-

tives only in the same amount as would be paid if the page or pages were

attending a public school under the provisions of paragraphs (a) and (b)

of this section.

Even in this matter of comparatively minor importance, Congress

took care to protect students in their right to choose a private or

religious education by placing at their disposal the same reimburse-

ment accorded students who preferred public schooling.
Those who are determined to close the door of Federal public-

welfare legislation on non-governmental schools pretend that Con-

gress has extended such benefits to them in the past o/iZy through

emergency measures. But income tax-exemption was not an emerg-

ency measure. Our postal regulations are not emergency measures.

Neither was the R.O.T.C., nor the school lunch program, nor the

provision in the Legislative Reorganization Act of 1946. The cri-

terion Congress has used is public need. In fact, the need for Fed-

eral aid in education today seems to amount to an emergency need

anyway. But even if it did not, it should go to all schools meeting

the standards of public education, if Congress is to follow its his-

toric and just policy.

World War II

The war brought forth several pieces of legislation which under-

scored this undeviating policy of Congress.

Although our armed services have always had chaplains, in peace

or in war, at the Military and Naval Academies as weU as in carnps

and aboard ships. Congress provided liberally for them in the vast

expansion made necessary by the war. The problem was rather to

find the clergymen to fill this need. The point is that Congress pro-

vided for the commissioning of these chaplains, and paid them the

18



same rates as other officers. This is a policy of supporting religion

as such. It is an old policy. It knows nothing about a “wall of separa-

tion” between our system of government and religion.

The armed services paid the teachers, religious and lay, in colleges

and universities with Army and Navy programs. Objections were
raised to this policy by private individuals, but the authorities ruled

out these objections. If the armed services wanted educational work

to be done for them, they rightly and sensibly judged that they ought

to pay for it. The mere fact that religious institutions derived some

benefit from this policy was not considered to be any reason for

declaring it in opposition to some vague idea labeled “a great Ameri-

can principle of separation of church and state.”

When President Roosevelt announced his famous “GI Bill of
Rights” in the summer of 1943, he proposed that every ex-GI should

be enabled to go to college at the expense of the Federal Government.

Congress implemented this proposal handsomely. Depending on their

length of service, veterans were allowed up to $500 a year for tuition

and books, and subsistence benefits. It certainly would have been

the zenith of bigotry to tell veterans who had gone to private colleges
before the war that they could avail themselves of the educational

benefits of the GI Bill of Rights only if they changed to a non-

religious institution of higher learning on their resumption of civilian

life. No one thought of making such a far-fetched suggestion. For
one thing, some States have no State university, and those that have

could not have begun to accommodate the veterans. Congress, as was

only fair, let the veterans choose their college, and the Veterans Ad-

ministration remits the money for tuition and books on receipt of

the bills. Tens of thousands of veterans are thus being educated, at

Federal expense, in private and even religiously conducted schools.

The same schools are able to avail themselves of war-surplus mate-

rials on a par with governmental schools. It is “first come, first

served.”

When Senators Hill, Thomas and Taft sponsored a bill in the 79th
Congress providing Federal assistance to the States for the purpose

of “more nearly equalizing educational opportunities,” they tried

to reverse this well-established Federal policy of making educational

benefits available to both governmental and non-govemmental schools

19



on the same terms. Under the guise of scruples about not interfering
with State and local control of education, their bill provided that the
States were to be entirely unrestricted in their definition of what
schools were to become the beneficiaries of the Federal grants. They
were fully aware that, almost without exception, the States discrimU

nate against non-governmental schools.

They were not consistent in their “hands off” policy, because they

did go out of their way to prevent racial discrimination in the use of
Federal funds, without any overly delicate fear of “interfering^ with

local discriminatory practices in racial relations.

A minority of the Committee on Education and Labor very prop-
erly objected:

If enacted into law, this bill would compel the Federal Government to

deviate from its long-established policy of absolute equity in any program

of Federal aid to the States. ... It will deprive children of the benefits
of Federal legislation for no other reason than their failure to attend public

schools.

The minority called attention to the utterly unfair provision in

the 1946 bill whereby children between the ages of five and seventeen

were counted in apportioning funds to States, although they were

attending private schools and would thereby be denied the benefits.

Senator Taft’s 1947 bill followed the same pattern.

The Republican leadership in Congress has to assume responsibility

for attempting to undermine our consistent national policy by intro-

ducing religious discrimination into its legislation. James G. Blaine’s

repudiation at the polls in the Presidential election of 1884 presents

a striking parallel today. Mr. Taft might just as well revive in the

1948 Republican platform the plank in the Republican platform of

1876 calling for a Federal amendment “forbidding the application

of any public funds or property for the benefit of any school or insti-

tution under sectarian control.” For he has taken a roundabout way

of achieving the same result by proposing that Federal aid to the

nation’s schools be channeled through the States in conformity with

their discriminatory constitutional provisions. This is a backstairs

method of leading Congress away from its truly American policy of

offering assistance to all schools on equal terms. Labeling the stair-

ways “States’ Rights” cannot conceal the purpose of the maneuver.

20



3-

The Courts and Aid to Schools

I
N CHAPTER ONE I challenged the assumption that the founders
of our Republic ever meant to establish a democracy which would

be entirely “neutral” towards religion. On the contrary, they pub-
licly encouraged a religious spirit as the backbone of the public virtue

called for in the experiment they were making of popular govern-

ment. Our Presidents-T-notably Washington, Adams and Franklin

D. Roosevelt—have kept this tradition alive.
It is one thing, indeed, to avow that the religious spirit is the

mainspring of national character, and quite another to suggest that

religious institutions in the performance of their specifically religious

functions should be supported by tax revenues. No one known to
the writer makes the latter suggestion. But opponents of Federal or

State aid to non-governmental schools would rule out as unconstitu-

tional any appropriations in aid of religious institutions in the

performance of their secular and general-welfare functions, on the

score that such aid gives support to religion indirectly. They talk

as if, under our Constitution, religion were the great untouchable

It suits them to discriminate against children attending non-govern-

mental schools by depriving them of free bus transportation. This

violation of “the equal protection of the laws” causes no scruples.

The plain fact is that attendance at non-governmental schools

fulfills the requirements of State laws compelling parents to send

their children to school just as well as attendance at governmental

schools. Why? Because non-governmental schools fulfill the function
of educating young citizens in conformity with the needs of citizen-

ship just as well as governmental schools do. This essential identity

of the two forms of education places both school systems in the

same category as objects of general-welfare legislation. But people

balk at extending to them the same Federal or State aid merely

because some non-governmental schools also teach religion, and teach
secular subjects under religious auspices.

More than that, they predict that dire consequences will follow in
the wake of policies which Congress has actually endorsed for many

21



^ears without any “undermining” of the “great American principle

of separation of Church and State.” For our national Legislature,

as was pointed out in Chapter Two, has provided for chaplaincies in

the armed services, and has extended such public-welfare programs

as the NYA, the GI Bill of Rights, the school lunch and reduced postal
rates, together with tax exemption, to non-governmental schools and

religious organizations. Congress saw no establishment of religion

in these indirect benefits.

The First Amendment

At the time of the drafting of the Federal Constitution, the thirteen

original States stood in various relationships to church establish-

ments. In Massachusetts and New Hampshire the Congregationalist or
Puritan Church remained as an established religion. Virginia, North

Carolina, Georgia, New York and New Jersey had disestablished the
Anglican Church during the war with England. In Virginia this

change was accompanied by bitter sectarian strife. Only Maryland

and South Carolina retained an Anglican establishment, Rhode Island,

Pennsylvania and Delaware had never had a state church. With

disestablishment the order of the day, none of the framers of the

Constitution saw any danger of a national establishment of religion.

But the embers of religious contests were still warm in a few
States, notably in Virginia. Enough anxiety was felt over the pos-

sible adoption of a national religious establishment to spur Madison,

a Virginian, to propose an explicit amendment prohibiting such a

maneuver. Congress consequently proposed and the States ratified

the following First Amendment: “Congress shall make no law

respecting an establishment of religion, or prohibiting the free exer-

cise thereof . . .”

The recorded debates in Congress reveal a great disinclination to

amend the Constitution at such an early date. Madison himself ex-

plained his proposition in mild terms:

Mr. Madison said he apprehended the meaning of the words to be, that

Congress should not establish a religion and enforce the legal observation

of it by law, nor compel men to worship God in any manner contrary to
their conscience.

The purpose of this Amendment seems obvious on its face: it was

22



to prevent the new National Government from imposing on a people

consisting predominantly of Congregationalists, Episcopalian and

Quaker religionists, respectively, any one religion^ since such a re-

ligion would inevitably violate the beliefs of adherents of all other

religions.

The State and Religion

We must notice that the prohibition was laid upon Congress. The
States themselves remained as free as before to maintain their re-

ligious establishments or create new ones. The Supreme Court so

interpreted the First Amendment as late as 1845 in the Permoli case.

Since the days of the Civil War, Congress has imposed a Federal

‘‘compact” upon new States admitted to the Union, requiring them

to guarantee religious freedom to their inhabitants. But Connecticut

did not achieve full religious freedom until 1818, and Massachusetts

retained its Congregational establishment until 1833. New Hampshire
required the profession of Protestantism in teachers and officials, and

in 1851 decisively defeated amendments to the State constitution

in favor of greater religious freedom. Neither in 1877, 1889, 1902,

1912, or as late as 1918-1920, could a two-thirds popular majority

be mustered to strike out “Protestant” in the State constitution.

Beginning with the heavy influx of Irish and German Catholic immi-

grants into the United States about 1848, a new issue arose. Previously,

Protestants had managed quite well in having the Protestant

religion taught in the new-born public-school system which succeeded

the older parochial-school system. But with the advent of Catholics

this arrangement proved unsatisfactory. As this issue came to a

head, the Protestants made a fateful choice. Rather than accede to
Catholic demands for State support of Catholic schools, as the

State was supporting the Protestant public-school system, they wiped

religious instruction off the slate as a beneficiary of State aid. The

public-school system more and more de-emphasized religion until

it excluded it altogether.

Alarmed at the prospect of having Catholic schools beneficiaries

of State support. State after State wrote into its constitution a pro-

hibition against the appropriation of tax revenue for schools under

religious control. Wisconsin (1848), Michigan (1850), Indiana

23



(1851) 5 Massachusetts (1855) , Oregon (1857) and Minnesota (1857)

led the way. Between 1877 and 1912, twenty-six more States took

such action. The impetus came from the spirit of Nativism, the Know-

Nothing Movement, the A.P.A., and the Ku Klux Klan.
For a generation or two the fear of ‘Topery” proved much stronger

than the Protestant zeal for religious instruction. Accordingly, these

constitutional provisions were interpreted very narrowly. But our

generation has witnessed a new searching of hearts on the question
of the complete exclusion of religion from the curriculum and the

complete exclusion of students in non-governmental schools from

the ever-increasing benefits extended to students in governmental

schools. Besides tax exemption, free bus transportation is permitted

for all school children in nineteen States, and free textbooks in secu-

lar subjects to all children in two States, Louisiana and Mississippi.

State courts have upheld such policies as compatible with the restric-

tive provisions in their State constitutions.

The Fourteenth Amendment

But an altogether new constitutional issue has been introduced by

virtue of the interpretation given the Fourteenth Amendment by the

Federal Judiciary.

The Fourteenth Amendment, adopted in 1868, was intended to

prevent any State legislature from depriving ‘‘any person of life,

liberty or property, without due process of law,” from abridging

“the privileges or immunities of citizens of the United States,” and

from denying “to any person within its jurisdiction the equal

protection of the laws.” Negroes were supposed to find shelter under

these protections, but they have been about the last to succeed in

doing so.

Since we are primarily interested in the judicial interpretation of

the First Amendment as applied to public aid to children attending

non-governmental schools, we now have to answer the question : How
does the First Amendment enter into the Constitutional problem,
since up to now the issue of State aid to non-governmental schools
has been a matter for the States to decide within the framework of

their own State constitutions?
The answer is fairly simple. It will be noticed that in the Fourteenth

24



Amendment the word “liberty” is not defined. But since 1923 the

Supreme Court has interpreted it as including all the freedoms of

the First Amendment.

This innovation in our constitutional system achieved by judicial

interpretation has changed our Federal-State relationships. For free-

dom of speech, freedom of the press, freedom of assembly and free-
dom of worship, which Congress was ordered to respect through
the First Amendment, must now be respected in the very same way
by State legislatures. Attempts to abridge these freedoms, as by

State or local laws restricting the activities of Jehovah s Witnesses or

labor unions (picketing), have been struck down.

Moreover, several members of the present Supreme Court have

adopted another new rule of constitutional interpretation whereby

these freedoms are given a “preferred” position. They are more

anxious to defend them than to defend the right of property under

the Fourteenth Amendment.

Effect on States

In this way a peculiar change has taken place. Previously, only

the States explicitly prohibited the use of public funds for sectarian

purposes. As we have already noticed, the States have been liberal-

izing their restrictions on State aid in the field of education.

The Federal Constitution, up until 1923, was never invoked against

the States in this field. But since then, by interpreting the word

“liberty” in the Fourteenth Amendment as including the entire scope

of the First Amendment, the Supreme Court has progressively hedged

in State action by these Federal judicial standards. And at the same
time the Federal standards have been tightened up judicially more

and more. The result is that four of the nine members of the present

Court aim at dismantling as unconstitutional even such meager assis-

tance to the children attending non-governmental schools as the

States have seen fit to extend in the form of bus transportation. The

supporters of the Taft Federal-aid-for-education bill, which discrimi-

nates against non-governmental schools, are no doubt encouraged

by this trend of the Court.

But the illiberal interpretation of the First Amendment is placing
the Court in diametric opposition to the fair-minded policy of Con-

25



gress and the pro-religious tradition of the Presidency, both of which

have seen no reason to exclude religious institutions from public-

welfare programs merely because religion receives an indirect benefit

from such programs. The Court is therefore leaning toward a hostility

to religion shown by neither State legislatures and courts nor the
legislative and executive branches of our national Government. And
this is the Court which has often announced that the judiciary should

refrain from imposing its personal political philosophy upon our

constitutional system, leaving to legislatures the determination of

public policy which is not openly in conflict with constitutional limi-

tations.

The New Jersey Bus Case

Misgivings and uncertainties have arisen because of the opinions

expressed in the crucial case of Everson v. Board of Education of
Township of Ewing, decided on February 10, 1947.

According to a statute passed by the New Jersey State Legislature,
district boards of education were empowered to arrange that parents

of children attending any public schools and any “school other than

a public school, except such school as is operated for profit in whole

or in part,” should be reimbursed for extraordinary transportation

costs. Parents of children attending Catholic schools were thus reim-

bursed. The Court of Errors and Appeals of the State of New Jersey
ruled that this use of tax revenues did not contravene either the

New Jersey State Constitution or the Fourteenth Amendment of the
Federal Constitution. A taxpayer, Everson, appealed this decision to
the Supreme Court.

Mr. Justice Black ujAeld the decision of the Court of Errors and

Appeals in an opinion in which Chief Justice Vinson and Justices

Douglas, Murphy and Reed concurred, with Justices Jackson, Frank-

furter, Rutledge and Burton dissenting.

But Mr. Black’s opinion, obviously intended to be fair to Catholics,

began by showing how opposed were Thomas Jefferson and James

Madison, the sponsors of the First Amendment, to any form what-

ever of public assistance to religion. He declared that our Constitu-
tion required absolute neutrality as between believers and non-

believers, and that any shadow of support for religion had to be

26



avoided. Yet at the end he handed down the judgment that in the
present case the State Legislature of New Jersey was within its juris-
diction in extending public-welfare legislation to children attending

schools which fulfilled the State requirements. It was not public

support of religion, though it was on the boundary line.

Analysis of Opinion

The basic view of the First Amendment advanced in this opinion,
on which the dissenters came to an opposite conclusion, seems weak.

It is that the Amendment should be interpreted according to the
extreme animus of Jefferson and Madison against any public support

of religion, however indirect, in Virginia. Madison did not adopt

the First Amendment; he only proposed it to Congress. Congress

proposed it to the States, and the State legislatures through ratifica-

tion made it part of our fundamental law. If the Amendment is not
clear on its face, its meaning should not be extracted from the writ-

ings of Jefferson and Madison but from the intent of those who made
it law. No attempt was made to show what this intention was, and
much less to adapt it to new educational conditions.

Secondly, in neither the majority nor minority opinions was the

public function of non-governmental schools placed in its proper

legal perspective. The States compel attendance at school of all chil-

dren between certain ages. Since the Oregon decision of 1925, it is

certain that no State can require attendance at governmental schools.

Attendance at other schools meeting State standards therefore fulfills

the State requirement. Now any assistance given to such “other
schools” is given purely and simply in view of the undeniable fact

that they are satisfactorily performing a public educational function.

Mr. Justice Jackson dissented because of the relationship of such

schools to the Church, That is incidental. The relationship on the

basis of which public aid is granted is the relationship of such schools

to the State, Do they or do they not afford the education to American
citizens which the State has the right to require? If they do—and
that they do is incontestable, since every State considers them as

fulfilling the law requiring school attendance—then they are fulfilling
a public purpose. This is the one and only reason why any State
legislature ever places them in the same category with governmental

27



schools. This is the essential fact. That schools are church-related in

no wise affects it.

If the courts keep this fact before them and do not lose their way
in the tanglewood of ideologies, subjective attitudes, and an entirely

excessive alarm lest religion should in any remote way reap a benefit
from undiscriminatory policies, the door will remain open for legis-

latures to determine in democratic fashion how the American people
think non-governmental schools should be treated in view of the

public service they render. If the Courts fail to do this, they will

destroy national and State policies of long standing.

^8



I
N THE cross-fire of emotionalism which marks the debate over
the extension of tax-supported public-welfare services to Catholic

school children, one essential fact seems to be overlooked: it is

that Catholic school children are American citizens entitled in every

way to “the equal protection of the laws” with all other American

school children.

When a Catholic child is sent by his parents to a parochial school,
he is carrying out a duty of American citizenship. He has no choice
about going to school. The Catholic Church cannot attach any legal

penalties to the failure of Catholic parents to send their children to

school. It is the State which requires school attendance. When a
Catholic child boards a bus to go to a distant school, he is therefore

fulfilling a civic obligation. To enable children living great distances
from schools to fulfill this civic obligation without imposing extraor-

dinary costs of transportation on their parents, many States appro-
priate public funds to cover the bus fare. As everyone considers

adequate schooling of young citizens to be essential to an enlightened

electorate, this policy seems very well conceived. It is the only

way of relieving some parents of an extraordinary expense involved
in fulfilling the compulsory education laws, which oblige all parents.

Social Purpose of Education Laws

The purpose of such laws is social: it is not to insure that the

next generation will possess the equipment necessary to pursue purely

private satisfactions, but to insure that the grown-up citizens of the

America of tomorrow will have the training they must have to be a

credit and not a burden to the community. They must be able to make
a living, to increase the total prosperity of the nation, to found a home
and raise a family, to understand and conform to American ideals of

living, to cooperate with others in community enterprises, and to

vote and help form a sound public opinion. We want properly edu-

29



<;atecl members of labor unions and of business organizations. We
want likely prospects for the medical, dental, legal and other pro-

fessions. The States are interested in providing such a body of
citizens for tomorrow’s America. So is the nation. The interest of
the States and of the Federal Government in the field of education

springs from the social implications involved. Thomas Jefferson dis-
played great vision when he pioneered in stressing the principle
that educational opportunities should not be left to the accidental

economic ability of some parents to pay for the schooling of their

children.

One of the reasons why the United States has become the strongest
and most productive and resourceful nation in the world is that we as
a people have understood for over a hundred years the connection

between national prosperity and an educated citizenry. Our task has

been heavier than that of any other nation because we have absorbed
into our population tens of millions of immigrants, many of them
from countries where they had no chance to go to school.

Our school system, the most extensive and expensive in the world,

has succeeded in moulding our p>eople into a great national unity

despite the circumstance that they have come here from all over the

globe. The public-school system has carried its burden with remark-

able success on this score. But it has not carried the burden alone.

The Catholic parochial-school system has educated millions and mil-

lions of American citizens. Does anyone pretend that products of

parochial schools have not shown themselves just as much a credit
to the nation as the products of the public schools?

The Catholic schools have performed this notable public service

under a great handicap. Catholic parents as American citizens have

to pay the same taxes as all American citizens. From these taxes

the public-school system receives its lavish support. But as Catholics

want their children to be instructed in religion along with instruction

in secular subjects, they have to dig into their pockets again, after

paying taxes to support public schools, in order to make the volun-

tary contributions on which Catholic schools operate. Being denied

tax support, that is the only way they can operate. Catholics pay

double what others pay to educate American citizens the way our

national well-being and our compulsory education laws demand. This

30



only means that Catholics are being penalized for practicing their

religion.

Abetting A New Religion

The one thing our State constitutions and the First Amendment

in our Federal Constitution was intended to prevent was the use of

tax funds to discriminate in favor of any religious sect or denomina-

tion. But the present system actually does discriminate in favor of

those parents who entertain the idea that religion consists merely of

some simple formula like the Golden Rule and that the worship of

God consists in doing your duty as you see it. This is a new form

of religion widely held. The public-school system has to a large extent

produced and propagated it. That system has made it economically

convenient to practise the diluted form of Christianity into which

much modern Protestantism has devolved, and has made it increas-

ingly hard economically to practise any other form of Christianity.

That the public schools are actually promoting a diluted form of

religion is proved by the State laws authorizing the reading of the

Bible in twenty-two States. Four more States even require Bible

reading. The Protestant version of the Bible is always used. Especially

in smaller towns and rural communities throughout the nation the

influence of Protestantism in public schools is considerable. To many
present-day Protestants the public-school system, accordingly, seems

to serve the religious needs of their children.

If anyone thinks that it is unfair for a Catholic to describe much
of contemporary Protestantism as a diluted from of Christianity^

produced and abetted by the public-school system, let him read what
Charles Clayton Morrison, until recently the editor of the Protestant

weekly, the Christian Century wrote in the issue of April 17, 1946.

In an article entitled “Protestantism and the Public School,” Mr.

Morrison makes much of the influence of the public schools on
Protestantism and declares:

Protestantism has been greatly weakened in its inner character by this

kind of education. Unlike Catholicism, the Protestant churches . . . have

given to the public school their consistent and unreserved devotion. The
result is that their own children have been delivered back to their churches
with a mentality which is not only unintelligent about religion but relaiivdy

incapacitated even to ask the questions out of which religion arises, to say

31



nothing of answering them the way religion answers them. This result must
not be thought of in terms of children only. For these children have become

the adult membership of Protestant churches. The mentality of the entire

body of American Protestantism has thus been fashioned under the influence

of the secularized public school. [Italics added],

Mr. Morrison was saying, in effect, that our State legislation has

appropriated tax revenues for generations to support a system of

education the inevitable result of which was positively to neutralize

the beliefs of American Protestants. This comes very close to sub-

sidizing an easy-going, vague, undoctrinal form of religion.

My contention is: 1) that the sponsors of the First Amendment
and of the prohibitions in State constitutions against State-support

of religious schools never intended to promote such a type of religion,

which they did not foresee as the result of their measures, and 2)

that the narrow interpretation of those measures violates their pur-

pose by supplying State funds to support one form of religion at

the expense of others. If opponents of Federal and State aid to

non-governmental schools had as keen an eye for this indirect support

of diluted Christianity as they have for the indirect support of

parochial schools they might come to view the issues in better per-

spective.

Civic Function of Catholic Schools

My main argument, however, is this: our Catholic schools are ful-
filling a civic function, and the circumstance of their also fulfilling a

religious function is no solid reason for penalizing American citizens

who are exercising their constitutional right to have their children

educated in religion in conjunction with their education in secular

subjects.

The only reasonable basis for denying to children attending non-

governmental schools the public-welfare benefits afforded children in

governmental schools would be the failure of non-governmental

schools to provide the civic training in view of which governmental

schools are thought to deserve public support.

No one has been bold enough to try to prove that parochial schools
fail to teach children secular subjects just as well as do public schools.

Do children in parochial schools learn less American history? Do
they fail to learn arithmetic, spelling, English composition, geography,

32



civics just as well as children in public schools? In competitions

they frequently gain victories over public-school children. The gradu-

ates of parochial schools are at least as prompt as any others in

enlisting in the armed services of their country in time of war. If

there is any score on which Catholic-school children fail to measure

up to public-school children, we would like to know what precisely

that score is.

Mr. Jackson’s Error

In the New Jersey school bus case, Mr. Justice Jackson wrote:
“The function of the Church school is a subject on which this record

is meager.” He then went on to show how the very existence of the

Catholic Church depended on its parochial schools, and concluded

that any support of them was first and foremost a support of the

Catholic religion.

That the function of a school-system embracing two and a half

million American children and boasting of a history as old as that

of the public-school system in this country should remain something

of a mystery to a Justice of the Supreme Court of the United States

is indeed deplorable. It should be a very simple matter to explain

what is taught in a parochial school period by period. Its function

is simply to provide the same education the public-school system

provides—which presumably is no great mystery—plus religious
instruction. It is true that Catholics attach great importance to

instruction in secular subjects being given under religious auspices.

But this is no mystery. Every teacher makes remarks in the course

of a class in history or civics or literature which have a bearing on

a student’s general outlook on life. Every textbook boasts of some

new emphasis or new point of view. In every school students are
interested in various forms of extra-curricular activities, which differ

in different schools. In Catholic schools some of these opportunities

are used to inculcate Catholic attitudes and devotional practices. But

these are beside the main point. People exaggerate things that are

strange to them. The main point is that Catholic schools teach every
subject taught in public schools. Parochial schools are not little

seminaries. They prepare students for high school, public or private.
If Catholic elementary schools did not accomplish as much as public

33



schools their graduates could not get along as well as they do in

public high schools.

Under our Constitution, parents cannot be obliged by State laws

to send their children to public schools. This was decided in 1925

after the State of Oregon had tried to give the public schools a

monopoly of elementary education. This decision was unanimous.

Not one Justice considered that Oregon had the right under the

Fourteenth Amendment to single out one type af school—^the gov-
ernmentally operated school—and compel parents under threat of
fines or imprisonment to send their children to that type of school.

Free vs. Tyrannical Governments

All eminent writers on democracy—Robert M. Maciver of Colum-
bia University, Walter Lippmann, D. M. Brogan, Ernest Barker

of Cambridge University, and others—point out how free government
differs from tyrannical forms. It is not in the management of material

things. Democracies can exercise great control over business, can

erect government corporations, can take over public utilities, can

foster systems of social security, compulsory health insurance, and a

variety of public services.

The distinguishing mark of free governments is in the sphere of

the mind. Freedom of speech, of worship, of the press, of association

and discussion and criticism even of government itself, are the

essentials.

Similarly, totalitarian governments are distinguished by the way

they throttle these precious freedoms. When Russian Communists came
into power they immediately put the press under strict governmental

control. And they made the school system of Russia a compulsory
system of Marxist indoctrination. Every child had to parrot the

same Marxist verbiage, day in and day out. Religion was destroyed:

churches were closed, priests were killed or exiled or forced to

work on farms or in factories. The Communists enchained men’s

minds.

The Nazis did the same in Germany, only more gradually. Unless

you adopted the entire Nazi ideology you could not keep your job

as a street-car conductor or a public-school teacher. Soon religious

schools were forced to close. The Nazis set out by fair means or foul

34



to capture the minds of German youth. No one was allowed to teach

them anything except the Nazi racial myths.

This system, by which the press, the radio, the screen, the stage

and the school fall under a political monopoly which the government

exploits for political purposes, is called ‘‘managed culture.” The

totalitarian State cannot let people think for themselves. They must

enslave their minds.

Democracies, on the other hand, glory in respect for personal

philosophies and points of view. Within whatever limitations public

order demands, we believe that everyone has a right to think for

himself, since that is the only way anyone can think at all. And
above all, we want to protect people in their right to think as they

deem best about the ultimate questions of philosophy and religion.

To preserve our democracy we must preserve this cultural diversity.

It is not enough to tolerate it. It is not enough to subsidize one type

of culture and let others struggle along as best they can. If we want
cultural diversity to enrich our national culture by providing tribu-

taries to its main stream, we have to protect it against any form of

monopoly, as we protect free enterprise against business monopolies.

We have to guard against any form of economic discrimination
which tends to starve out the diversified strains in our national

culture.

As we pour billions upon billions of dollars into governmental

schools, as we raise the standards of publicly-supported schools by

spending more and more of the money of all the people to educate

children in one type of school—^the public school—we are making
it more and more difficult for other types of schools to survive. This

is true not only of Catholic parochial schools, but of non-Catholic

schools of all types and of non-governmental hospitals and other

social institutions. We are running the danger of gradually setting
up a sort of cultural monopoly, all because of a vague fear of giving

any public support to religion, however indirect.

Congress has long pursued the opposite policy of making public-

welfare assistance available to all types of schools and hospitals

meeting public standards. This system has worked very well. The
States have leaned to some extent in the same direction in the matter
of free bus transportation, and to a lesser extent, free textbooks.

35



The Taft Federal-aid Bill

But as bigotry has broken out after other wars—after the Civil
War and World War I—so it is breaking out again and denouncing
this policy as “un-American.” The Taft aid-to-education bill, which

will be introduced in the Senate in the next session, after having

failed to come to a vote in two previous sessions, is an attempt to

break with the non-discriminatory policy which Congress has pur-

sued with undeviating consistency. Instead of making Federal aid

available to all schools, governmental and non-governmental, on the

same equal basis, as did Senator Aiken’s bill in the last session, it

provides that the Federal Government shall appropriate national tax

revenues in conformity with the provisions in State constitutions.

Now forty-six of the forty-eight State constitutions prohibit the
application of tax revenues to any schools conducted under religious

auspices. These State constitutions unfairly discriminate against

one type of school, despite the fact that it fulfills the same public

purpose as governmental schools.

Why should the Federal Government, which has been following a
uniform policy of distributing national funds to all types of schools on

an equal basis, surrender national tax revenues to be used to discrimi-

nate against the young American citizens who are learning loyalty

to America and preparing themselves to serve her well in non-

governmental schools? Our National Government has led the way

in fighting against racial discrimination, and the Taft bill refuses

to surrender to State discriminatory practices in racial relations.

Why does it not stand up against similar discriminatory practices
directed against religious groups?

The American School System

The reason is that its sponsors think the public-school system

is the American-school system. It is not. It is only a part of it.

Catholic schools are an important part of the American system of

education. As American citizens we strongly resent the proposal to

penalize us for fulfilling our civic obligation as Americans—^educat-
ing our children in all that is necessary for good citizenship—in
schools to which we feel obliged in conscience to send them and to

36



'which we are guaranteed the right to send them under our Constitu-

tion.

No doubt those who fear that Catholics are scheming to “take
over” the United States will ask: “But where will you Catholics stop

in asking for Federal and State aid for your school children? Today

you want only free bus transportation and a share in the supple-

mental funds the Federal Government is being asked to spend to

equalize educational opportunities in the several States. Tomorrow

you will want a share in the regular State and local appropriations

for schools. You aim at throwing the burden of supporting your
schools entirely upon tax revenues.”

Well, the first thing we want is a continuation of present policies,

national and State. America has made some progress towards treating

us equally with other American citizens. We do not want to see a
retreat from present arrangements which have worked well and seem

only fair. For the rest, we are willing, now as ever, to let the Ameri-
can people decide how they want to deal with non-governmental
schools. We have been very patient, and we will continue to be
patient. When our fellow-citizens are ready to deal with us more
generously than they have hitherto, that will be time enough for us.

Two Crucial Questions

And now let me ask two questions:

1) Are the opponents of Federal and State assistance to non-

governmental schools willing to discuss this question on its merits?

Are they willing to evaluate what we have to say with an open mind?

Are they prepared to let reason and not inherited suspicions and

religious bigotry decide what is basically a question of civic justice?

This is the way we understand the democratic process, and we do

not intend to be shouted down for stating our position.

2) Do the opponents of aid to non governmental schools intend to
try to put our schools out of business, or do they expect that our

schools will continue to function? If they intend to try to put them out

of business, they will have to undermine our Constitution first. But if

they expect them to continue to function, do they want millions of

American citizens to be educated at a serious disadvantage, or do

they want them to get as good an education as America can afford to

37



provide for its youth? Doesn’t it seem pretty inconsistent to pass a

bill to ‘‘equalize” educational opportunities in the United States, on

the score that the nation wants all its youth to get a good educa-

tion, and in that very bill to cut off two and a half million American

children from these improved educational opportunities?

We want politics to get mixed up with religion no more than
anyone else. We see no danger of it. All we see is that pressure is
being put on Congress to introduce religious discrimination where it

has not been introduced before—in national educational legislation.

3S



Books:

Bower, W. C. Church and State in Education. Chicago. University of
Chicago Press. 1944.

Confrey, Burton. Secularism in American Education: Its History.
Washington, D. C. The Catholic University Press. 1931. Pp. 153.
(Cf. especially Chapter III).

Federal Aid for Education. Hearings before the Committee on Edu-
cation and Labor, U. S. Senate, 79th Congress, First Session, on
S. 181. Part I, Jan. 29, 30, 31, Feb. 1, 2 and 8, 1945; Part II, on
S. 717 and S. 181, April 11, 12, 19, 20, 21, 23, 24, 25, 26; May 3
and 4, 1945. Washington, D. C. U. S. Government Printing OflBce,
1945, 2 vols.

Gabel, Rev. Richard P. Public Funds for Church and Private Schools.
Washington, D. C. The Catholic University of America, 1937.
Pp. xiv, 858.

Lee, Umphrey. Render Unto the People. New York. Abingdon-Cokes-
bury Press. 1947. Pp. 164.

O’Comiell, Rev. Geolhey. Natiifalism in American Education. Wash-
ington, D. C. Catholic University of America. 1936. Pp. xi, 219.

Oregon School Cases: Complete Record. Baltimore, Md. The Beleve-
dere Press, Inc., 1925. Pp. 943.

School Bus Transportation Laws in the U. S. Washington, D. C.,
N. C. W. C. Legal Department (1312 Massachusetts Ave., N.W.,
Washington 5, D. C.). 1946. Pp. 257.

Supreme Court Reporter, 61 (February 15, 1947) 504-540, “Everson
V. Board of Education of Township of Ewing, et al.” (The New
Jersey Bus transportation case decision).

Zollmann, Carl. American Church Law. St. Paul. West Publishing
Company, 1917, 1933. Pp. xv, 675.

Pamphlet:

McManus, (Rev.) William E. The Non-Sectarian Bus. Washington,
D. C., N. C. W. C. Department of Education (1312 Massachusetts
Ave., N.W., Washington 5, D. C.). Pp. 13.

39



Articles:

Farrell, Allan P., S.J., “Two Systems—Parochial and Public,”
America^ Oct. 5, 1946, pp. 15-16.

Hannon, Jerome D., “The New Jersey Statute and the Supreme Court
Minority,” The American Ecclesiastical Review^ CXVI (May,
1947) 321-338.

Konvitz, Milton R., “Whittling Away Religious Freedom,” Com-
mentary: A Jewish Review^ I (June, 1946) 4-17. Published by the
American Jewish Committee, 425 Fourth Ave., New York 16, N. Y.

McManus, Rev. William E., “The Federal-Aid Controversy,”
America^ April 12, 1947, Section II, pp. iv-xviii.

McNicholas, Most Rev. John T., “Basic Principles of Education,”
The Catholic Mind, XLIV, September, 1946.

Morrison, Charles Clayton, “Protestantism and the Public School,”
the Christian Century, LXIII (April 17, 1946) 490-493.

Murray, John Courtney, S.J., “Separation of Church and State,”
America, LXXVI (Dec. 7, 1946) 261-263.

“Separation of Church and State; True and
False Concepts,” America, LXXVI (Feb. 15, 1947) 541-545.

“The Court Upholds Religious Freedom,”
America, LXXVI (March 8, 1947) 628-630.

O’Brien, Kenneth R. and Daniel E., “Separation of Church and State
in Restatement of Inter-Church-and-State Common Law,” The
Jurist, VII (July, 1947) 259-280 (Catholic University).

O’Neill, J. M., “The Separation of Church and State,” Commentary:
A Jewish Review, II (June, 1947) 562-570.

Pitt, Rev. Felix N., “Parochial Schools and the Public,” America,
April 12, 1947, Section II, pp. iv-viii.

Powell, Thomas Reed, “Public Rides to Private Schools,” the Harvard
Educational Review, (Spring, 1947) 73-84.

40



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