The National Catholic Review
Charles M. Whelan
From March 11, 1961
PRESIDENT JOHN F. KENNEDYS education message to Congress contained several surprises, but none more disappointing than the statement on parochial schools:

In accordance with the clear prohibition of the Constitution, no elementary or secondary school funds are allocated for constructing church schools or paying church school teachers salaries; and thus non-public school children are rightfully not counted in determining the funds each state will receive for its public schools.

With one sentence Mr. Kennedy disposes of a problem which has vexed the best constitutional lawyers in the nation. Whos being dogmatic now?

In fairness to the President, we could hardly have expected an elaborate constitutional argument to the Congress. But in fairness to the people we could and did expect a silence respectful of the complexity of the problem and the traditional modes of constitutional adjudication. As an American, Mr. Kennedy is entitled both to hold and express his personal opinions. As a candidate, he was compelled to detail his position on Church and State. But as President of the United States, speaking to the Congress of the United States, he should avoid unnecessary pronouncements on delicate constitutional issues.

Mr. Kennedys warrant for the "clear prohibition" of the Constitution is undoubtedly the Church-State theory elaborated by the Supreme Court in the Everson, McCollum, and Zorach cases. In the first of these cases, decided in 1947, the court affirmed that neither a State nor the Federal Government can pass laws which aid one religion, aid all religions, or prefer one religion over another. ... No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. One year later the court reaffirmed this position in McCollum and held religious instruction on public school premises during public school hours unconstitutional. In 1952 the court sustained a released-time program off public school premises in the Zorach case, but did not explicitly temper the language of Everson and McCollum. In view of these statements from the nations highest tribunal, Mr. Kennedy has a prima facie case. He also enjoys the unquestioned support of distinguished constitutional lawyers like Leo Pfeffer, counsel for the American Jewish Congress and author of the best one-volume work on Church and State in America. The President can count on the active political support of such eminent and powerful organizations as the National Educational Association and the National Council of Churches. He cannot fairly be blamed for having incurred the endorsement of POAU and similar extreme groups. What complaint, then, have the advocates of church schools, save that Mr. Kennedy has given the coup de grace to a cause already lost? What refuge have they, short of saying the Supreme Court was wrong and thus conceding the Presidents proposition? The answer is short and decisive. Mr. Kennedys statement was erroneous, inopportune and unnecessary. It is no disparagement to say that neither the President nor his Attorney General enjoy the reputation of great constitutional lawyers. If Mr. Kennedy were speaking simply as a private citizen, his opinion would not be recorded in the law journals of the land. The fact that he is President lends only political, not persuasive, force to his assertion. A short survey of the professional legal journals would demonstrate to any inquirer that there is no clarity of expert legal opinion on the constitutionality of Federal aid to education through limited grants to church schools. It is the fashion of opponents of such aid to pretend that there is no question what the Supreme Court would do with such a program, and that the only people who think there is a serious argument for the constitutionality of such aid are Roman Catholics. The publications of such eminent non-Catholic legal authorities as Mark DeWolfe Howe and Wilbur Katz are simply ignored. A GREAT amount of confusion could be saved if all parties to the controversy would agree to this statement of the question: May the Federal Government bear part of the cost of educating all of the nations children in literacy, science and general human culture, regardless of the benefits which result from the program to religion or religious groups? Everyone is talking at present as though it were the name on the Federal check which determined the issue of constitutionality: if it is P.S. 101, it is constitutional; but if it is St. Marys, it is a betrayal of the American way of life. I submit that it is an incontrovertible principle of American constitutional law that it is the purpose, and not the payee, that determines the checks constitutionality. The only constitutional issue in Federal aid to education is whether the First Amendment means that Congress may not advance the level of national education by any method which even indirectly results in benefit to religious bodies. There is no decision of the Supreme Court on this precise point. All that the McCollum case decided was that government may not use its revenues and its coercive force to co-operate with the teaching of religion in public schools. Everson sustained the use of tax funds to provide transportation to church schools, and Zorach relied explicitly on the right of government to accommodate its programs to the religious interests of the citizens it serves. Moreover, there are two significant facts in our constitutional history which militate for the legitimacy of Federal aid to education, regardless of the religious consequences. First, the Blaine Amendment was not adopted. In spirit and in letter, it would have forbidden every form of Federal aid to education which would result in direct or indirect benefit to church schools. This amendment repeatedly failed of enough votes in Congress to be proposed to the States for ratification. The failure of its adoption by the nation is the precise reason why it was adopted in New York and many other States. The second fact supporting Federal use of church schools to advance general education is that the Cochran case of 1930 was not overruled in Everson, McCollum or Zorach. As is well known, Cochran sustained the constitutionality of state-supplied textbooks to church-school children. Opponents of Federal aid airily dismiss this case with the comment that the First Amendment issue was never argued. This is true only in form. The whole point and substance of the objection overruled by the Court was that the educational program could not be public because it resulted in benefit to a religious, and therefore necessarily private, group. The side effects of the program, the Court held, did not nullify its public character. Cochran involved the due process clause of the Fourteenth Amendment; so did Everson, McCollum and Zorach. What puzzles the experts is the coexistence of these four cases with one another and with our total constitutional history. It is a brave prophet, indeed, who confidently predicts what the Supreme Court will decide. In the clarity of his constitutional vision, however, Mr. Kennedy has succeeded in adding to the confusion. On what principle of law will he justify the enormous chasm in his program between higher and lower education? An admirable scholarship program, buttressed with supplementary grants to the institutions chosen, apparently raises no First Amendment problems; but once you descend to the high school or elementary level, there is no possibility of aid through church schools. Is it because lower education is compulsory that aid would be unconstitutional? Surely that argument cuts both ways; religious freedom becomes a joke when government itself makes the price too high. Is it because direct and unrestricted grants for construction or teachers salaries are the only conceivable means of aid to grammar and high schools? What about scholarships, tuition payments, tax credits or deductions, with supplementary grants to the institutions of parental choice? "Education must remain a matter of state and local control," says Mr. Kennedy, "and higher education a matter of individual choice." Only higher education, Mr. President? The Administration, however, has double reason for gratitude to its leader. Not only has Mr. Kennedy illumined the experts; he has saved his advisers the trouble of further thought. The speed with which he has done so should give them particular consolation and great hope. Less than two months after assuming his grave responsibilities, he has settled for them the position they must publicly take on an intricate constitutional problem. That is, they will take it or risk their jobs. With the necessity of uniformity in the Administration, I have no quarrel; but why should uniformity have been imposed, when it was not necessary to say anything at all? No one would have been surprised if Mr. Kennedy had simply submitted his proposals to Congress without defining the unconstitutionality of a proposal he was not submitting. The basic models of the Presidents program are the Thompson and McNamara bills of last year; each passed its own House with scarcely a whisper of Church-State debate. For all practical purposes, the question of aid to education through limited co-operation with church schools was simply hushed up and ignored. Senator Morse was the one exception, and he made a speech in favor of its constitutionality. The President has solid political reasons for refusing to champion aid through church schools. I affirm the propriety and the wisdom of his standing on those reasons. More importantly, I concede that, wholly independently of Mr. Kennedys position, there are sound arguments against the desirability of Federal aid through church schools. The dangers of excessive Federal control, of disproportionate complexity in administration, of imbalance between the public and church-school systems, and particularly of the use of such funds for segregated schools, are not mere chimeras. These arguments I understand and respect, even though I do not think they outweigh the contrary arguments in favor of the desirability of Federal aid once such aid is given to public schools. But what I cannot understand is why a President who had such excellent political justification for the omission of private schools from his program has chosen the deeper and swampier ground of constitutional law on which to take a stand. The reason he gave Congress, of course, was to explain why non-public school children would not be counted in determining the funds each State would receive for its public schools. An equally good and perhaps more candid reason would be that he had decided in the national interest not to help them. Or was it that Mr. Kennedy did not dare to say that? Did he recognize that the discrimination would be too manifest unless hidden in constitutional clarity? FR. WHELAN, S.J., a doctoral student at the Harvard Law School, is a member of the bar of the District of Columbia and of the U.S. Supreme Court.