Levitt v. Committee for Public Education
413 US 472 (Decided June 25, 1973)
By an 8-1 vote (dissent by White) the Court disallowed another statutory attempt by the New York State Legislature (see Committee) to aid private and parochial schools. The Legislature had appropriated $28,000,000 to reimburse nonpublic schools in the State
"for expenses of services for examination and inspection in connection with the administration, grading and the compiling and reporting of the results of tests and examinations, mantenance of records of pupil enrollment and reporting thereon,...."
Though this case received only brief consideration by the Court because of the infirmities noted in Committee (decided on the same day), it allows us to see the Chief Justice's (Burger) attempt to parse the distinction between secular and sectarian that the Court had now adopted.
The Statute and its Shortcomings
In our day we hear legislators grousing continually about "unfunded mandates" from the state and federal government. New York's law was an attempt to "fund" a mandate, for the $28,000,000 was to go primarily to "services" mandated by the Committee for Public Education. The principal services reimbursed were the costs of state-prepared examinations and traditional teacher-prepared tests, though the evidence for the latter seemed unclear from the record. In any case, the annual payment to parochial or nonpublic schools would be $27 per pupil in grades 1-6 and $45 for each pupil in grades 7-12. Section 8 of the Act tried to save it from Establishment Clause problems:
"Nothing contained in this act shall be construed to authorize the making of any payment under this act for religious worship or instruction."
However, as the Court noted, the Act contains no provision authorizing state audits of school financial records to determine whether the school's actual costs in complying with the mandated services was less than the annual lump sum payment. In addition, there was no way to determine whether some of the money would go to teachers for drawing up typical and regular tests in classes, many of which could be on religious subjects. In mentioning this latter point, the Chief Justice was drawing on an important distinction that arose in the previous few years of the Court's jurisprudence.
In Allen (1968) and Tilton (1971), the Court had to determine the propriety of various kinds of assistance to parochial schools or parents of parochial school students. In the first, the Court approved loans to parochial school students of "secular" textbooks, free of charge, from public schools when requested by parents of the parochial school students. In Tilton the Court allowed the use of federal grants and loans to finance construction at four Catholic colleges only if the funding would be used for secular purposes. As part of the program, the government would have permanent oversight of how the buildings were used.
The facts and holdings of these two cases provided the Chief Justice a framework to apply to the facts in the case at hand. Since the grants in Levitt were not supervised, and since there was no therefore no way to determine if some of the money might be used for sectarian/religious purposes, the program violated the Establishment Clause. Indeed, since routine teacher-prepared tests are an "integral part of the teaching process," it would be unusual if these tests did not relate to the central mission of a Cathlic secondary school, which is the inculcation of religious faith.
Because the statute only provided for a single per-pupil allotment for a variety of specified services, some secular and some potentially reiligious, and neither the Court nor the lower courts could properly reduce that allotment to an amount corresponding to actual costs incurred in preforming reimbursable secular services, the program must falter under the First Amendment.
Copyright © 2004-2007 William R. Long