Court Decision on Religious Schools to Be Appealed to Supreme Court

A Manhattan federal court decision upholding the constitutionality of a New York State law providing reimbursement to religious schools, including Jewish day schools, for record-keeping and administrative services mandated for such schools by state law, will be appealed to the U.S. Supreme Court by the Committee for Public Education and Religious Liberty (PEARL).

The announcement was made by Leo Pfeffer, counsel for PEARL, a coalition of 36 civic, religious, education, labor and community organizations in New York State. On behalf of PEARL, Pfeffer filed the original suit in June, 1974 against the state’s 1974 Mandated Services Act. At stake is about $800,000 a year for the Jewish day schools in the state.

The original PEARL suit asked the federal court to enjoin State Comptroler Arthur Levitt and State Education Commissioner Ewald Nyquist from making payments to such schools for the required procedures. The federal court declared the law unconstitutional in June, 1977 because money was paid directly from the state treasury to the schools.

RECONSIDERING DOCTRINAIRE APPROACH

The National Jewish Commission on Law and Public Affairs (COLPA), and other groups opposing the ruling, filed an appeal to the U.S. Supreme Court which, without ruling on the constitutionality of the 1974 law directly, ordered the case returned to the lower court for reconsideration. A special three-man federal court in Manhattan ruled 2-to-1 on Dec. 11 that the reimbursement procedure was constitutional. The decision cited a 1977 Supreme Court ruling which the majority ruling said eased some of the “constitutional strictures against state aid to non-sectarian schools.”

That was a reference to a Supreme Court ruling last year in Wolman vs. Walters, dealing with an Ohio law that provided some state tests in private schools. Howard Zuckerman, COLPA president, said the reversal by the Manhattan court appeared to indicate that the courts are reconsidering “the doctrinaire hostile approach” to the issue of such financial aid to sectarian schools and will judge each program on its merits.

Dennis Rapps, COLPA executive director, who represented the Jewish day schools in the case, said the Dec. 11 decision represented the first time in recent years that a federal court has approved of direct payment of state funds to such schools. In recent years, the Supreme Court has ruled unconstitutional a variety of state laws providing funds directly to such schools for nonreligious services.

Rapps noted that in 1972, the Supreme Court struck down a New York State reimbursement law which, unlike the 1974 law, authorized state payments for grading of tests prepared by religious school teachers. That law had no auditing provisions to insure that sectarian schools would be reimbursed by the state only for secular services.

Rapps said the 1974 law was written “specifically” to meet those objections. He said it was “significant” that, in the Dec. 11 decision, the federal court had found that the 1974 law did not pose “any substantial risk that the examination or services will be used for injection or inculcation of religious views or principles, even in a pervasive religious atmosphere.” The lower court also found that “the careful auditing procedure” in the 1974 law “insures that state aid will be restricted to these secular services.” Rapps said non-Jewish religious schools were also represented.

DAMAGING EFFECT SEEN

Pfeffer said the Dec. 11 ruling was “contrary to what the Supreme Court has held in all its recent cases involving governmental aid to parochial schools with one exception — the 1968 Allen decision upholding state payments of costs of lending secular textbooks to parochial school students.” He said the majority decision in the Dec. 11 ruling “concedes that the Supreme Court has clearly ruled that the Allen decision is an exceptional case which must not be extended to any other instance of state aid to parochial schools — yet this is exactly what the U.S. district court has done.” He said this was the basis for the planned appeal.

Pfeffer said the precedent set by the Dec. 11 ruling “may well have a damaging effect on compliance by state legislatures and administrative officials with the Supreme Court’s consistent decisions holding state aid to parochial schools to be unconstitutional.”