Works By John Courtney Murray, S.J.
Federal Aid To Church-Related Schools1
John Courtney Murray, S.J.
Congressional hearings rarely make interesting reading. Last year's hearings on federal aid to education are a notable exception. As Hugh Douglas Price recently remarked, it became obvious during the dispute over education "that the subject was more in the class with civil rights than with such mundane matters as minimum wage, housing and urban redevelopment, or social security coverage."2 As a result the arguments presented by many Congressional witnesses turned on issues fundamental to our society and our Constitution. The question of the inclusion of church-related schools in federal aid to education was, of course, only one of the "high temperature issues" before Congress, and far from deserving sole credit or blame for the defeat of federal aid last year. Nevertheless, it was one of the critical issues and deserves careful study, especially through analysis of the principal arguments on both sides.
At the outset, it is important to recognize the differences in terminology of the various parties. Those who oppose any inclusion of church-related schools in federal aid to education tend to speak of "aid to public schools" and "aid to parochial schools." Those who favor the inclusion of church-related schools then to speak of "aid to education" and of "public and private nonprofit schools," including in the latter nondenominational as well as church-related institutions.
These differences in terminology have an important bearing on the solution of the constitutional issue. "Aid to parochial schools," by its very terms, smacks of unconstitutionality. "Aid to education in all qualified schools" has quite a different ring. Opponents of public funds for the improvement of education in church-related schools emphasize their religious character. Proponents emphasize the public character. Since both characteristics are real, the fundamental constitutional problem remains the coordination of civic and religious interests in one society.
The constitutional issue, of course, is only one of the levels of debate. The other is the policy issue. Assuming for the moment that inclusion of all schools meeting reasonable public standards is constitutional, should the federal government include "parochial schools" (if you are against them) or "private nonprofit schools (if you are for them)? Once again, "parochial schools" evokes the image of direct and purposeful government support of religion, with all its evil memories in history. "Private nonprofit schools" evokes the image of free enterprise, parental and academic freedom, and the historical collaboration of our government with privately managed institutions dedicated, at least in part, to the public welfare.
It is not surprising, therefore, that one of the head-on collisions in the current debate is precisely on the issue of religious freedom. Last year, to mention only a few groups, the National Council of Churches, the National Lutheran Council, the Baptist Joint Committee on the Public Affairs and the American Jewish Congress testified through their spokesmen that it would violate the religious freedom of their members to make public funds to church- related elementary and secondary schools. Some groups hesitated on the issue of loans, but on grants there was unanimity. Most of the groups also claimed that such a violation of their religious freedom would violate the Constitution, as plainly interpreted by the Supreme Court. All claimed that such a violation was bad public policy.
On the other side, the groups that supported at least some kind of participation in federal aid by the private nonprofit schools claimed that the religious freedom of their members would be diminished if participation were denied. Orthodox Jewish groups like Agudath Israel and Torah Umesorah, the nondenominational Citizens for Educational Freedom, and the National Catholic Welfare Conference all argued that it was in the public interest for the government to respect the freedom of parental choice, especially when religious beliefs motivate that choice. Only one of these organizations, however, Citizens for Educational Freedom, went to the extent of arguing that exclusion of the private nonprofit schools would be unconstitutional.
This direct clash over religious freedom means that someone must lose the argument. With or without the Constitution, Baptists argue that public funds for education in church- related schools will violate their conscience, and Catholics argue that the denial of funds will violate theirs. Which concept of religious freedom is written into the Constitution? Which concept is in the public interest?
It seems manifest that the First Amendment neither can nor does protect the citizen'`s pocketbook in the same way as it protects his beliefs. The Jeffersonian principle that it is "sinful and tyrannical" to expend tax funds for the propagation of religious beliefs has not meant in our courts and legislatures that an expenditure of tax funds for non-religious public purposes becomes unconstitutional if the expenditure violates some citizen's conscience. If the citizen's individual beliefs are offended by the religious consequences of nonreligious legislation, the law protects his conscience but exacts the taxes. In our pluralistic society, to subject the constitutionality of nonreligious expenditures to the conscience of each individual would mean anarchy. The 5-4 split in the Everson decision of 1947 rests substantially on the refusal of the majority to extend the Jeffersonian principle to the point where resulting benefit to religion would automatically and invariably invalidate governmental spending programs.
Is it possible, however, to classify a federal aid to education program as "nonreligious" if it includes church-related schools? There is an emphatic "No" on one side and an equally emphatic "Yes" on the other. Speaking for the National Council of Churches, Dr. Gerald Knoff testified that the Protestant Churches "see the general public service argument as being wholly inapplicable to these schools." Church-related schools are primarily and intrinsically ecclesiastical instruments; any public service they perform is a by-product. Moreover, to argue that the schools should be helped because they perform a public service is implicitly to argue that whatever performs a public service should receive public funds. If schools are to be assisted on this ground, so should the churches themselves be aided, because their contribution to the public welfare is equally undeniable. The absurdity of the consequence demonstrates the falsity of the argument.
On the other side of the issue, the argument was pressed home that the nation has a clear nonreligious interest in the education (for this life, at least) of all our children, whatever schools they may attend. One out of every seven American school children is in a private nonprofit school; in our major metropolitan areas the percentages go as high as 44 (Pittsburgh). To exclude seven million children from the government's effort to promote educational excellence and marshal the talents of the nation cannot be justified in terms of any educational or defense policy. The only possible ground, it was insisted, on which these children could be excluded from the benefits of federal assistance is a religious ground: every other consideration urges their inclusion.
It was in this area, I think, the arguments on both sides tended most to ignore one another. There was no clear reply to the objection that it is absurd to propose public assistance for every activity that contributes to the public weal. The proponents of the inclusion of church-related schools failed to present detailed evidence in support of their claim that exclusion from federal assistance would imperil the public service they are now performing. It may seem obvious that exclusion from federal aid would harm the private nonprofit schools, but obviousness is no substitute for available evidence. Moreover, from the national viewpoint, it is not enough to prove that the national nonprofit schools will be hurt. The point is: Will the nation be hurt? In part this can be shown by reasoned argument on the pluralistic nature of our society and the traditional rights of parents, teachers, and students. In part it must be shown by statistical and economic evidence demonstrating the practical impossibility of shifting seven million children from private nonprofit to public schools within our lifetime without grave educational disruption. The theory that the public schools are open to all is a myth at the level of practice. Every major city in the United States would be crippled tomorrow if the private nonprofit schools shut their doors. We cannot marshal our intellectual resources for the conflict we are in without assisting education in private nonprofit schools.
Just as the private school proponents failed to meet the objection to their public-service argument, so their opponents failed to meet the harm-to-the-nation argument. Some, indeed, insisted that what is unconstitutional cannot be for the public welfare; but this begs the question on constitutionality. Others argued that inclusion of church-related schools would mean the destruction of the public school system. I do not exaggerate. The American Humanist Association testified that, if private nonprofit schools were included in the legislation, the public schools would be "weakened and decimated." The National Council of Churches spoke of "destroying" the public school system, or at least of "weakening" it so gravely "that it could not possibly adequately meet the educational needs of all the children of our growing society." The Baptist Joint Committee on Public Affairs spoke of "intolerable educational chaos."
Such opinions of the weakness of the public schools can stir only amazement and incredulity. Apparently, it is the conviction of some of the most important Protestant leaders in the country that the only force keeping the public schools in existence is the law that limits public funds to their systems. "Remove that limitation," they say, "and the system will collapse."
The fact is that the public schools continue to satisfy the vast majority of American parents. If they did not, the limitation of public funds to their support would have been changed long ago. The best evidence of this is the situation in the South, where several states have introduced tuition grants to provide an escape from desegregated public schools. It is deplorable that this path to educational freedom should also provide flight from racial justice. But the real significance of this legislation is plain: the people will change the financing of education when the public schools no longer satisfy them.
The public schools have flourished because most American parents want them for their children. Similarly, the private nonprofit schools have flourished because millions of other American parents want them badly enough to pay for them. If anyone thinks that Catholic schools exist in this country solely because the Catholic Church wants them, he gravely misjudges the sentiments of the people. The argument that Catholics send their children to Catholic schools because of some prescription of canon law is as absurd as the contention that Americans send their children to school because of the compulsory education laws. Parents send their children to school because they want them educated. Parents send their children to this or that school, if they can afford the choice, because they want them educated this or that way.
At the root of the argument over federal aid to education and private nonprofit schools lies the problem of the coordination of the interests of three societies: parents, churches, and civil society.3 Both the public schools and the private schools presently achieve some measure of coordination; both need to achieve a greater coordination. There is a tendency in the public schools to becomes merely instruments of the state. There is a tendency in the private nonprofit schools to become merely instruments of some church. Both tendencies have to be guarded against, because education is not the responsibility merely of parents, or merely of the state, or merely of the church. It is the responsibility of all three.
In this connection it is important to notice that the proponents of private nonprofit schools, while they urge religious considerations, do not urge a religious test for participation in federal aid. The test they urge is purely educational: any qualified school should be eligible. If the private nonprofit schools were proposing the inclusion only of church-related institutions, it could be said with justice that they were seeking a preference of "religion" in the traditional sense. What they are doing, however, is to argue that the religious character of a school is constitutionally irrelevant so long as the school meets proper academic standards. Ironically, it is the champions of the public schools who are proposing a religious test.
It may seem paradoxical that religious interests should be defended by an argument that would banish religion from consideration at the level of law. Nevertheless, this same paradox is written into our Constitution. Religious liberty is protected by a triple prohibition; no religious test for public office; no national creed; no prohibition of free exercise. These prohibitions make religion a matter of conscious legal concern, but the way law manifests that concern, in most instances at least, is by not making religious tests. Except in certain special areas, such as chaplains and the tradition of tax exemptions, religion is protected by being deliberately ignored.
Religious considerations, however, have already played too important a part in the debate over federal aid to education. The structure of the argument has become lopsided, for lack of proportion between the interests of all three institutions intimately concerned with education: parents, civil society, and the churches. When all is said and done, two solutions are currently being proposed for the coordination of these societies at the federal level. One would have the Federal Government imitate the choice of the States and limit public support to those who send their children to public schools. The other would have the Federal Government provide the same benefits to all parents and children through all academically qualified schools, public or private, nondenominational or church-related. The great question faced by the American public are: Which solution is in the national interest? Which will provide the nation with the greater number of well-educated students? Which will show greater respect for parental, religious, and academic freedom?
(1)Editor Note: Originally published as "Federal Aid to Church Related Schools." Yale Political: A Journal of Divergent Views on National Issues. 1 (1962): 16, 29-31.
(2)Hugh Douglas Price, "Race, Religion, and the Rules Committee," in The Uses of Power: 7 Cases in American Politics (ed Alan F. Westin: New York: Harcourt, Brace, 1962), p. 70.
(3)Editor Note: This manner of viewing the public school system as an arena within which three sets of interests meet first surfaced in Murray's thought, as best I know, in a series of exchanges with Robert MacIver on a project dealing with freedom of speech within state universities (1954a, Correspondence with Robert MacIver, dating from 1952 through 1954, Murray Archives, file 2-147). For those who presently wish to move beyond Murray to explore the forms in which confessionally explicit languages might be brought into the public forum, Murray's work on religion in public schools offers some guidelines.