THE SUPREME COURT AS NATIONAL SCHOOL

BOARD*

EDWARD S. CORWINT

As a student at the University of Michigan a half century ago I had frequent occasion to attend convocations, lectures, and concerts in University Hall. Each time my eyes were confronted with the words, emblazoned on the wall over the great organ, "Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." These words are from the famous Northwest Ordinance which was enacted in 1787 by the last Congress of the Confederation,' and which from the provision it makes for the establishment of public schools is the matrix of the public school system of a great part of the United States. Two years later many of the same men, representatives of the same people, sitting as the first Congress under the Constitution, proposed the following amendment to the Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . ." Do these words represent a fundamental change in attitude on the part of the American people on the question of what relation should subsist between public education and the teaching of religion? Prima facie it seems doubtful, but that it is so, nevertheless, is the implication of the decision on March 8, 1948, of the United States Supreme Court in Illinois ex rel. Vashti McCollum v. Board of Education of Champaign County.3

The facts and holding in the case may be set forth as follows:

A local board of education in Illinois agreed to the giving of religious instruction in the schools under a "released time" arrangement whereby pupils, whose parents signed "request cards," were permitted to attend religious-instruction classes conducted during regular school hours in the school building by outside teachers furnished by a religious council representing the various faiths, subject to the approval and supervision of the superintendent of schools. Attendance records were kept and reported to the school authorites in the same way as for other classes; and pupils not attending the religious instruction classes were required to continue their regular secular studies.

The Court held, in an opinion by BLACK, J., that this arrangement was in violation of the constitutional principle of separation of Church and State, as expressed in the First Amendment and made applicable to the states by the Fourteenth Amendment, and accordingly that the state courts below had acted erroneously in refusing relief to the com

This is a revision of an article published in 43 THOUGHT 665 (1948).

+ McCormick Professor of Jurisprudence (emeritus), Princeton University.

July 13, 1787, I STAT. 51, n., Art. III.

* The doubt becomes doubly doubtful when we recall that Congress re-enacted the Northwest Ordinance in 1791!

333 U. S. 203 (1948).

plainant, parent and taxpayer, against the continued use of school buildings for such religious instruction.

This conclusion was supported further in a separate concurring opinion by FRANKFURTER, J., in which the historical backgrounds of the principle of separation of Church and State, and of “released time" arrangements, are considered at length. Justices JACKSON, RUTLEDGE, and BURTON joined in this opinion; and Justices RUTLEDGE and BURTON also concurred in the opinion written by Justice BLACK.

JACKSON, J., in an additional opinion, although concurring in the result, expressed doubt as to the standing of the complainant to raise the question at issue, and also felt that the relief granted, prohibiting all religious instruction in the schools, was too broad and indefinite.

REED, J., dissented on the ground that the co-operative "released time" arrangement did not involve either an "establishment of religion" or "aid" to religion by the state, sufficient to justify the Supreme Court in interfering with local legislation and customs.*

96

The holding and the opinions accompanying it raise all sorts of questions. "Released time" programs prior to the decision operated in some 2,200 communities spread over forty-six states. Are all of these programs rendered unconstitutional by the ruling in the McCollum case, or only those which are conducted in public school buildings? Justice Frankfurter, after characterizing the Champaign plan as “a conscientious attempt to accommodate the allowable functions of Government and the special concerns of the Church within the framework of our Constitution," says that some released-time programs may be constitutional, others unconstitutional, and which are the one or the other must await "close judicial scrutiny" as cases arise. From the point of view of persons vested with the responsibility of administering the public school system of the country, this is not exactly a consoling utterance. And positively disturbing to all public educational authorities, both those at the school level and those at the college and university level, is Justice Jackson's suggestion that the holding may contain a threat to courses on religion and religious history, or even to courses in art, philosophy, and literature, which can hardly be taught without reference to religion, the seed-bed of them all.9

In fact, the decision seems to have fully satisfied very few people. Even Mrs. McCollum is disappointed in the final outcome, to date, of her efforts. What she asked for was a judicial mandate that

would ban all teaching of the Scriptures. She especially mentions as an example of invasion of her rights "having pupils learn and recite such statements, "The Lord is my Shepherd, I shall not want." And she objects to teaching that the King James version of the Bible "is called the Christian's Guide Book, the Holy Writ and the Word of God," and many other similar matters.10

4 92 L. Ed. 451 (1948).

McCollum v. Board of Education, 333 U. S. 203, 224-225 n. 16 (1948).

• Id. at 213.

A great many state constitutional provisions seem likely to undergo Supreme Court scrutiny under the McCollum decision. See FREDERIC J. STIMSON, THE LAW OF THE FEDERAL AND STATE CONSTITUTIONS OF THE UNITED STATES III, §§ 2-48 (1908).

10 McCollum v. Board of Education, supra note 5, at 234-235.

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She also avows a distaste for the word "sin." Yet all that the Court did was to remand the cause to the State Supreme Court "for proceedings not inconsistent with this opinion,' a directive with which the latter court complied by banning the Champaign system. Comments the lady, according to the Champaign NewsGazette:

I am right back where I started from three years ago. I have wasted all this time and money without an order prohibiting the schools from aiding and abetting in carrying on these classes. The schools should be definitely ordered against corralling students for religious classes. I told Mr. Dodd [her attorney] that I was dissatisfied and wanted to appeal. I believe we will take any further action that is open to us.1

12

My interest in this case is, however, not in the question of its practical soundness, but in that of its constitutional soundness; in the question, in brief, whether the Constitution does require that all public-supported education be kept strictly secular. Some comparatively recent decisions suggest the contrary. In the New Jersey Bus case,13 which was decided thirteen months prior to the Champaign case, it was held that the state is not inhibited from aiding religious instruction incidentally to the exercise by it of the police power for the protection of the health and safety of school children on the way to school; while in 1930, in Cochran v. Louisiana,11 it was held that children attending parochial schools could be made beneficiaries of that state's free textbook law without offense to the Constitution. The interest of the statute, said the Court, "is education, broadly; its method comprehensive. Individual interests are aided only as the common interest is safeguarded."15 Federal appropriations in support of free lunches for school children embrace parochial schools, presumably on the same justification. The parochial school is regarded as a distributing agency of social benefit, including education. Are these holdings invalidated by the McCollum decision?

I

We encounter the characteristic almost at the outset of Justice Black's "Opinion of the Court" in his brusque dismissal of the question whether Mrs. McCollum's own interest in the constitutional issue raised by her was sufficient to entitle the Supreme Court, under the rules governing judicial review, to decide it.16 The basic principle involved was stated by Justice Sutherland for the Court a quarter of a century ago, in these words:

We have no power per se to review and annul acts of Congress on the ground that they are unconstitutional. That question may be considered only when the justification for some direct injury suffered or threatened, presenting a justiciable issue, is made to rest upon such

11 Id. at 212.

12 Speech delivered before National Council of Catholic Women, Convention in New Orleans, September 11, 1948, by George E. Reed of Washington, member of the Council's legal department. 18 Everson v. Board of Education, 330 U. S. 1 (1947).

an act. Then the power exercised is that of ascertaining and declaring the law applicable to the controversy. It amounts to little more than the negative power to disregard an unconstitutional enactment, which otherwise would stand in the way of the enforcement of a legal right. The party who invokes the power must be able to show not only that the statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally.17

The McCollum case originated, to be sure, in the courts of Illinois and was decided by them prior to its appeal to the Supreme Court, on writ of certiorari; but that fact does not alter the situation so far as the question above posed is concerned. In the words of Justice Frankfurter, dealing in 1939 in the case of Coleman v. Miller18 with a situation which was on all fours with the one before us:

To whom and for what causes the courts of Kansas [sc. Illinois] are open are matters for Kansas to determine. But Kansas can not define the contours of the authority of the federal courts, and more particularly of this Court. It is our ultimate responsibility to determine who may invoke our judgment and under what circumstances.

It is not our function, and it is beyond our power, to write legal essays or to give legal opinions, however solemnly requested and however great the national emergency. . . our exclusive business is litigation. The requisites of litigation are not satisfied when questions of constitutionality though conveyed through the outward forms of a conventional court proceeding do not bear special relation to a particular litigant. The scope and consequences of our doctrine of judicial review over executive and legislative action should make us observe fastidiously the bounds of the litigious process within which we are confined. No matter how seriously infringement of the Constitution may be called into question, this is not the tribunal for its challenge except by those who have some specialized interest of their own to vindicate, apart from a political concern which belongs to all.10

While these words are from a dissenting opinion, they voice on this particular issue the views of the Court as a whole, as is shown by its explicit ruling that Coleman had a sufficient interest to entitle him to prosecute the case before it. In the McCollum case, nevertheless, Justice Black brushes aside the question of the materiality of Mrs. McCollum's interest in these curt words: "A second ground for the motion to dismiss is that the appellant lacks standing to maintain the action, a ground which is also without merit. Coleman v. Miller, 307 U. S. 433, 443, 445, 464.'

"20 The passages thus cited in no wise challenge Justice Sutherland's position;

17 Frothingham v. Mellon, 262 U. S. 447, 488 (1923). (Italics supplied.) It should be noted that formerly the vast majority of constitutional cases arose out of the effort of some official agency or of some private individual to enforce legislation which the defendant in the case attacked as unconstitutional. There can be no doubt as to the special interest of such a defendant in having the constitutional question passed upon. The practice which has developed within the last half century of raising the question of constitutionality in suits for injunctions alters the picture somewhat. But it is as to taxpayers' suits that the doctrine of direct or special injury is most evidently relevant. See 16 C. J. S. Constitutional Law, §§76, 80-82 (1939).

to the contrary, they assume its correctness. It is clear that the learned Justice had as much, and as little, right to cite Coleman v. Miller in support of his ruling as he would have had to invoke the Book of Revelations.

Of the remaining members of the Court sitting in the McCollum case, Justice Jackson alone expresses any qualms as to the right of the Court to exercise its jurisdiction. Comparing the case with the New Jersey School Bus case mentioned earlier, he says:

... in the Everson Case there was a direct, substantial and measurable burden on the complainant as a taxpayer to raise funds that were used to subsidize transportation to parochial schools. Hence, we had jurisdiction to examine the constitutionality of the levy and to protect against it if a majority had agreed that the subsidy for transportation was unconstitutional.

In this case, however, any cost of this plan to the taxpayers is incalculable and negligible. It can be argued, perhaps, that religious classes add some wear and tear on public buildings and that they should be charged with some expense for heat and light, even though the sessions devoted to religious instruction do not add to the length of the school day. But the cost is neither substantial nor measurable, and no one seriously can say that the complainant's tax bill has been proved to be increased because of this plan. I think it is doubtful whether the taxpayer in this case has shown any substantial property injury.21

"Incalculable and negligible" sums up with substantial accuracy the purport of the extensive finding of facts by the Circuit Court of Champaign County, in which Mrs. McCollum instituted her action. Besides, what of the opposed public interest -why should not that have been considered by the Court? In fact, it always has been considered in cases in which taxpayers have sought to challenge the constitutional validity of expenditures from the national fisc, with the result that no such challenge has succeeded thus far.22 Why the same rule should not be observed in the case of local expenditures is hard to see; and especially disappointing is the indifference shown on this occasion by those two or three members of the Court who have so frequently in recent years protested their love for the federal system and deplored its impairment.

I should like to point out, moreover, that a strange difference appears to exist today between public school buildings and public parks in respect to their availability for religious uses. In the Lockport case,23 which was decided three months after the McCollum case, it was held by a vote of five justices to four that an ordinance of the city of Lockport, New York, which forbids the use of sound amplification devices except with the permission of the chief of police was unconstitutional as applied in the case of a Jehovah's Witness who used sound equipment to amplify lectures in a public park on Sunday, on religious subjects. The proposition for which the case seems to stand is that when a municipality establishes a public park it thereby renders the park a potential forum for any blatherskite politician or 11 Id. at 233-234. See also Transcript of Record, p. 69. The state Supreme Court agreed. Id. at 274-275. * See note 17 supra. Saia v. New York, 334 U. S. 558 (1948).