Board of Education of Central School District No. 1 v. Allen/Dissent Fortas

by Abe Fortas

United States Supreme Court

392 U.S. 236

Board of Education of Central School District No. 1  v.  Allen

 Argued: April 22, 1968. --- Decided: June 10, 1968

Mr. Justice FORTAS, dissenting.

The majority opinion of the Court upholds the New York statute by ignoring a vital aspect of it. Public funds are used to buy, for students in sectarian schools, textbooks which are selected and prescribed by the sectarian schools themselves. As my Brother DOUGLAS points out, despite the transparent camouflage that the books are furnished to students, the reality is that they are selected and their use is prescribed by the sectarian authorities. The child must use the prescribed book. He cannot use a different book prescribed for use in the public schools. The State cannot choose the book to be used. It is true that the public school boards must 'approve' the book selected by the sectarian authorities; but this has no real significance. The purpose of these provisions is to hold our promise that the books will be 'secular' (but cf. DOUGLAS, J., dissenting, ante, at 256, n. 6); but the fact remains that the books are chosen by and for the sectarian schools.

It is misleading to say, as the majority opinion does, that the New York 'law merely makes available to all children the benefits of a general program to lend school books free of charge.' (Ante, at 243.) This is not a 'general' program. It is a specific program to use state funds to buy books prescribed by sectarian schools which, in New York, are primarily Catholic, Jewish, and Lutheran sponsored schools. It could be called a 'general' program only if the school books made available to all children were precisely the same-the books selected for and used in the public schools. But this program is not one in which all children are treated alike, regardless of where they go to school. This program, in its unconstitutional features, is hand-tailored to satisfy the specific needs of sectarian schools. Children attending such schools are given special books-books selected by the sectarian authorities. How can this be other than the use of public money to aid those sectarian establishments?

It is also beside the point, in my opinion, to 'assume,' as the majority opinion does, that 'books loaned to students are books that are not unsuitable for use in the public schools because of religious content.' (Ante, at 245.) The point is that the books furnished to students of sectarian schools are selected by the religious authorities and are prescribed by them.

This case is not within the principle of Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947). Apart from the differences between textbooks and bus rides, the present statute does not call for extending to children attending sectarian schools the same service or facility extended to children in public schools. This statute calls for furnishing special, separate, and particular books, specially, separately, and particularly chosen by religious sects or their representatives for use in their sectarian schools. This is the infirmity, in my opinion. This is the feature that makes it impossible, in my view, to reach any conclusion other than that this statute is an unconstitutional use of public funds to support an establishment of religion.

This is the feature of the present statute that makes it totally inaccurate to suggest, as the majority does here, that furnishing these specially selected books for use in sectarian schools is like 'public provision of police and fire protection, sewage facilities, and streets and sidewalks.' (Ante, at 242.) These are furnished to all alike. They are not selected on the basis of specification by a religious sect. And patrons of any one sect do not receive services or facilities different from those accorded members of other religions or agnostics or even atheists.

I would reverse the judgment below.

Notes