The Law: Upholding Aid to Students

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The lower court judges who eventually try the case of Flast et al. are sure to do their homework on another Supreme Court decision handed down last week. That case involved the question of whether New York, or any other state, can require its public school boards to lend textbooks to students in all private schools—including religious schools. Members of the board of education for both Rensselaer and Columbia counties argued that such programs violate the First Amendment ban on "establishment of religion." Last week the court upheld the state. New York's law, it said, was an aid to children, not religion.

In 1947, the court had ruled that states could reimburse parents for the cost of bussing their children to parochial schools, and Justice Byron White's majority opinion relied heavily on that earlier case. "Of course," he agreed, "books are different from buses." But in this case they are no more of a threat to the Constitution. The public school board must find that they are secular, thus answering the objection that the state might be supplying religious books.

Pointing out parenthetically that many apparently secular books may be religious in their treatment of such subjects as evolution, the three dissenters. Justices Douglas, Fortas and Black, all heatedly argued that the First Amendment's rule was being badly compromised. Said Black: "It requires no prophet to foresee that on the argument used to support this law others could be upheld providing for funds to buy property on which to erect religious school buildings, to pay the salaries of religious school teachers, and finally to pick up all the bills for religious schools. I still subscribe to the belief that tax-raised funds cannot constitutionally be used to support religious schools, even to the extent of one penny."