LEMON v. KURTZMAN

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Argument of David P. Bruton

Chief Justice Warren E. Burger: We’ll hear arguments next in 71-1470, Lemon against Kurtzman.

Mr. Bruton you may proceed.

Mr. David P. Bruton: Mr. Chief Justice and members of the Court, may it please the Court.

This litigation is now before this tribunal for the second time.

On the first occasion, this Court ruled in Lemon versus Kurtzman that Pennsylvania Act 109 providing aid to nonpublic schools was unconstitutional on its face under the Religion Clauses of the First Amendment.

The case has returned here again because there is a dispute as to the affect and purpose of that prior ruling, and the question which is now presented is whether the Commonwealth can now disperse an additional $24 million approximately, under the statute which has been held unconstitutional to Pennsylvania’s sectarian schools.

The relevant facts I think are these, and they fall into two categories, first with respect to Pennsylvania Act 109 itself.

That statute provided a scheme for subsidy to the nonpublic schools in the form of reimbursement for certain so called “secular education services” as defined in the statute.

And the expenses which could be reimbursed under the statute included the cost of teacher salaries, textbooks, and instructional materials for certain specified types of courses of instruction.

And the areas of instruction which were included were mathematics, modern foreign languages, physical sciences and physical education.

The schools became eligible for reimbursement under this statute by entering into in the scheme of the statute certain agreements, purchase of service contracts.

And under these agreements they were to be paid by the State in the subsequent school year for these so called services which were rendered during the prior year.

Now, it was not of course necessary for any school to show that it had in fact added any new teachers, admitted any new pupils, hired any new textbooks or otherwise really incurred any new expenses in order to receive aid under the statute.

All it was required that it was the school satisfied the State that the expenditures in question fell within the defined statutory categories and, this is a very vital “and” I think, that the services for which reimbursement was sought were in fact secular, and did not include any subject matter expressing religious teaching or the morals, or beliefs of any particular sect.

The Commonwealth was given extensive administrative powers in carrying out the purpose of this statute with the right to audit the performance of each school and its books and records to make sure that the expenditures were properly made.

This then, in brief summary, is the scheme of the statute.

I’d like to turn now to the chronology of events here, which I think is quite significant.

The statute was passed in June of 1968, and within one month the plaintiffs announced publicly and this was in the news media, that they intended to challenge the constitutionality of this Act.

Of course, the suit itself could not be brought until it was clear that the statute was operational that in fact funds were going to be disbursed under it, otherwise there was a possibility that the claim could be dismissed as premature.

And it was not until six months later, at the end of 1968 that the State issued rules and regulations and forms and so forth which could be submitted by schools seeking subsidy under the Act.

Now, these so called agreements were to be submitted by January 15th of 1969 with schedules identifying the classes, the number of pupils and so forth.

And then in June, at the end of the school year, additional schedules were to be submitted which detail the precise items of expenditure that they were seeking reimbursement for.

Once it was clear that the statute was indeed operational, plaintiffs filed suit.

Now, this was in July of 1969.

At that time the defendants moved to dismiss the complaint.

And I may say to the considerable surprise of the plaintiffs.

The District Court panel in a 2-1 decision over the dissent of Chief Justice -- Chief Judge Hastie granted that motion to dismiss.

Plaintiffs immediately appealed to this Court.

Within six weeks, after the decision of the District Court, the schools again entered into these contracts which are annual in nature on the 15th of January 1970, and it’s at this point, Your Honors, I would like to correct a factual error which is in the record and it has been in the record I’m afraid from the time this case was presented to the District Court on remand.

And I think that Mr. Ball and I are in agreement that we can now stipulate to this change.

And the change is this, it was stated below by the defendants that on January 15, 1970 the schools entered into contracts for services to be rendered in the subsequent school year 1970 to 1971.

We have repeated that statement in the briefs that we have filed here.

That is not correct.

The contracts that were signed on the 15th of January 1970 were applicable to services provided in that school year that was already half over 1969-1970.

And it was therefore not until a year later, January 15, 1971 that agreements were entered into by the schools covering services for the 1970-1971 school year.

There is a one year difference there, and although I frankly don’t believe that it’s critical to the plaintiffs’ case here, I think it does have a good deal to do with the arguments of the defendants have made as I come to in a minute.

The facts that these agreements were not signed until the 15th of January 1971, means that a number of other intervening events have occurred.

Chief Justice Warren E. Burger: You said these agreements now?

Mr. David P. Bruton: I’m now referring to agreements covering the 1970-1971 school year that is the year and the only year which is at issue here.

Justice William J. Brennan: And those are the contracts that were made in January, something 1971?

Mr. David P. Bruton: That’s right, halfway through that year.

The State has --

Justice William J. Brennan: The school year I gather, begins September doesn’t it or August?

Mr. David P. Bruton: Yes, September 1, I think is essentially the beginning.

Justice Harry A. Blackmun: No point was made as to 1969-1970 at all?

Mr. David P. Bruton: That’s correct.

And I want to emphasize that.

The funds that the Commonwealth collected for those years have already been disbursed to the schools, and the plaintiffs are not here seeking a return of any moneys which have already been paid out.

We are seeking only an order which would bar any further payment of funds which the Commonwealth still has.

Justice William J. Brennan: And was the amount for the 1969 that you actually disbursed?

Mr. David P. Bruton: I do not have that figure.

I believe it was something less than the sum that we now have here.

Justice William J. Brennan: And that sum that you now have is?

Mr. David P. Bruton: About $24 or $25 million approximately.

Justice William H. Rehnquist: Mr. Bruton was that January a date in which the contracts went into issue, or just a random date, or do you correspond to some appropriation, or something like that?

Mr. David P. Bruton: It is the date which was established Mr. Justice Rehnquist, in the schedule which was put out by the State itself with its rules and regulations when they were issued under the statute.

What they did was set a specific schedule for the 1968-1969 year and then said it’s the same schedule every year thereafter year after year.

Justice Harry A. Blackmun: Mr. Bruton, do I correctly have the impression that you did not seek a temporary restraining order or an injunction in this case?

Mr. David P. Bruton: That is correct.

Justice Harry A. Blackmun: Is there any significance in that at all?

Mr. David P. Bruton: I do not believe at this time that there is, Your Honor.

I think we’re now focusing on the question of whether the impact of this Court’s decision in June of 1971, whatever the situation may have been before that, whether the impact of this Court’s decision in June of 1971 was to prevent any further disbursements under the unconstitutional statute thereafter.

Justice William J. Brennan: Well, if you had sought an injunction would it have been against disbursements, or against entering under these agreements?

Mr. David P. Bruton: It would have been against the disbursements.

That is of course the ultimate nexus the focus of the case.

Chief Justice Warren E. Burger: Well, if these funds can’t be disbursed now as a constitutional matter, then recovery of the amounts paid in prior years is in what status in your view?

Laying aside the intentions of the parties, constitutionally could they be recovered?

Mr. David P. Bruton: Constitutionally I would say yes, because I think that there is at least since the Tidal Oil case in 1924.

It is clear that a judicial decision nullifying a statute can have full retroactive operation.

We do not urge it.

We do not urge it here and whether on a less than constitutional plan as a matter of policy, this Court would determine if it were presented that question that it was appropriate to apply the decision that retroactively.

I think is a different matter and one that [Voice Overlap].

Chief Justice Warren E. Burger: What kind of policy would you call that?

What kind of policy would we be employing?

Mr. David P. Bruton: I think in that --

Chief Justice Warren E. Burger: Is that official policy?

Mr. David P. Bruton: Yes, I think I have reference to the standards which have been suggested in Linkletter and certain other cases in which it’s been indicated that when one is considering retroactive application, one ought to look at the substance of the rule which is laid down, and determine whether the policy that lies behind that rule will be offended or not if only a prospective application is given.

I think you’d have to look at the question of whether you would be really remedying or preserving the integrity, if you will, of the rationale behind this Court’s decision in Lemon by ordering a return of those prior funds.

I suggest that there is a difference between that situation and the case at bar.

And the difference is this.

This Court, I think, focused principally in its decision which came down in June of 1971, holding that Act 109 was unconstitutional on its face, on the question of entanglement.

I think there are other threads that can be discerned in the fabric of the opinions of the Court, but I think this is we’ll assume for the moment the primary one.

And as to entanglement, it is the position of the defendants here that all the entanglement that there might be under this statute has already occurred with respect to 1970-1971.

In effect, the horse has been stolen, there’s no point in locking the barn now.

This contention, the plaintiffs disagree with vigorously.

We say that there is no indication in this record.

In fact, there is evidence to the contrary that there has been the kind of discriminating meaningful inquiry by the Commonwealth into the applications which have been submitted by over a thousand schools, most of them sectarian, to insure that these funds would not be used in fact for the furtherance of religious purposes in violation of the Establishment Clause.

And not only is there no evidence in the record whatsoever to support the position of the defendants on this point.

They asked simply that you conclusively presume that all this has been done.

I think there is now evidence, and we’ve referred to it in our supplemental brief filed only last week that indicates to the contrary.

In fact, the Commonwealth has advised one of the named defendant schools in this very litigation.

The Montgomery -- Philadelphia Montgomery Christian Academy and certain other schools that they are not eligible for any aid under Act 109, whatever remaining aid there may be under it.

Because in the by-laws or a charter of the Institution, there is reference made to the fact that the God’s creation has a bearing on the teaching practices of that Institution.

And I think my witty opponent Mr. Ball, would be the first one to concede that the application of that kind of administrative standard in making these determinations if applied to all of the schools in the State would disqualify every Catholic parochial school in the State of Pennsylvania.

I don’t think there’s any question about that.

The Montgomery Academy confronted with this decision brought suit against the Commonwealth in the federal District Court seeking to have a reversal.

They were told not surprisingly at that point, this occurring after the decision of this Court striking down Act 109, they were told that they could not have a hearing to review the administrative determination made by the State because that would create the very entanglement which this Court has said is forbidden by the Religion Clauses.

And so you have a conundrum, you have an apparently arbitrary decision --

Justice William J. Brennan: For that Montgomery School, is it a disbursement for the 1970-1971 school year?

Mr. David P. Bruton: There are two years in question in that case. One of them is 1970-1971, one of them is 1969 and 1970, in which is also interesting and I’ll come to that in a moment.

Therefore, I submit that the evidence is that there has not been the kind of discriminating inquiry that the really terribly difficult question of looking into the classroom, and that’s what it came down to in this case.

To determine whether in fact these expenditures would be for secular purposes.

And therefore, I suggest that to permit the disbursement of the $24 million now would run directly afoul of the rationale of this Court’s decision in Lemon v. Kurtzman.

Unless of course you simply say, “Pay the money out without any further inquiry.”

And that I think would run afoul of this Court’s decision because it would be done without any insurance that you weren’t directly violating the Establishment Clause.

Now, turn to the other side of the coin.

I’ve been speaking now out in terms of the rationale of this Court’s prior ruling in whether it would be offended.

Looking now to the other side, are there any interests here on the part of the defendant schools which would warrant an exception to what I submit is the usual effect given to a judicial decision?

And as to whether it is the usual effect without getting in to the nice philosophical distinctions between the Blackstonian approach and the brooding omnipresence in the sky and so forth, and the more contemporary realistic approach.

I do think it’s clear that it has long been recognized and for good reason that judicial rulemaking is essentially retroactive, unless there is good reason to make exception to that.

Chief Justice Warren E. Burger: It would be agreement to say “constitutional rulings.”

Mr. David P. Bruton: Constitutional rulings primarily although I think one can find precedence which address the same problem even in other areas of which --

Chief Justice Warren E. Burger: But all judicial -- all judicial rulings are not retroactive, are they?

Mr. David P. Bruton: Surely, injunctions by their very nature or not, yes.

Chief Justice Warren E. Burger: You mean, you put emphasis on constitutional ruling, constitutional adjudication?

Mr. David P. Bruton: Principally.

I don’t think I have to address other areas.

For example, without getting into it, there are areas I suppose open to question when a court interprets a statute in one way and then reverses itself in another case in some time later and interprets the statute in another way.

There are questions there whether that is a retroactive, if you will, interpretation of the statute.

Usually, I think it’s held that it is.

Although there maybe some exceptional cases.

But certainly, in the area of constitutional adjudication, I think the general rule is that it is retroactive unless there is sound reason to depart from that, and the two principal areas of exception which we referred to in our brief.

Of course the bond cases where you have public bonds being issued in reliance on the validity of the procedures involved, and then those procedures are struck down.

This Court has, on many occasions, expressed reluctance and unwillingness to hold that those bonds now in the hands of innocent holders are void, and that the money that has been paid for, that is simply to be forfeited.

Chief Justice Warren E. Burger: What about the reliance factor here?

Mr. David P. Bruton: This is exactly what I’m coming to.

First of all, with regard to the so-called agreements, I think there’re several points to be made here.

With regard to the so-called agreements --

Justice William J. Brennan: May I ask why you call them “so called?”

Mr. David P. Bruton: Well, I think there’s a real question, Your Honor, as to whether these agreements are true contracts in the sense of a quid pro quo between the Commonwealth and the schools.

The schools don’t have to show that they are really hiring any new teachers, adding any new pupils, incurring any new expenditure in order to be reimbursed.

Essentially --

Justice William J. Brennan: You mean it’s a subsidy really?

Mr. David P. Bruton: They’re really being subsidized for doing what they would be doing anyway.

Now, I know that defendants have cited cases which indicate that, at least in the Law of Pennsylvania, a very technical approach to aspects of consideration can be taken and you can say there are valid contracts under contract law.

Chief Justice Warren E. Burger: Well, isn’t there a quid in the sense broadly for the Commonwealth of Pennsylvania or any other state in that the maintenance of private schools relieves the state of considerable burden, and that even an open subsidy identified as the subsidy is a partial recompense for that?

Mr. David P. Bruton: Perhaps.

Chief Justice Warren E. Burger: But you’re now talking just about contract law and not the constitutional law.

Mr. David P. Bruton: That’s right.

Perhaps there is an ultimate quid pro quo.

I think it depends in this sense on whether the, I call them in terrorem.

I think kind of arguments that are made here are true.

That is that without the subsidy, you will have widespread closing of the private school system and that otherwise this great burden will fall upon the public school system.

I suggest that the record doesn’t really indicate that that’s the fact.

It’s not the parochial schools who didn’t open this fall for lack of funds in Philadelphia.

It’s the public school system that didn’t have the money to pay its teachers and its two-and-a-half weeks late.

It’s the public schools who may have to close early next spring.

But in that ultimate sense if that were ultimately shown to be the case, I guess it could be said yes, there is a quid pro quo.

I suggest it need not be assumed to be true at this point, and in respect of the particular years involved, I think it’s clear that the schools would have incurred these expenses anyway.

Secondly, you have a fact that the Commonwealth itself has regarded this statutory scheme as essentially a subsidy.

Again, I point to the case referred to in our supplemental brief.

The Philadelphia Montgomery Christian Academy was told by the Commonwealth in July of 1970 that it would receive no payments in respect of services provided during the preceding school year, 1969-1970.

And interestingly enough the District Court never faced that question when it dismissed the Academy’s complaint.

The Commonwealth didn’t talk about contractual reliance there, equitable obligations, contractual obligations.

They treated it as a subsidy which could and should be cut off at any time the State decided that it was improper.

And this is precisely the position that we’re taking.

I think the actions of the Commonwealth confirm it.

Third, the fact is that because the contracts were not entered into for the year in question until January 15, 1971, the schools had already incurred whatever expenses there were in teaching the subjects they were halfway through the school year, and the single most important sentence I think in the opinion of the court below which justified the decision below is this, and I’m quoting from our jurisdictional statement page 9 of the appendix.

“In reliance on these contracts --“

Chief Justice Warren E. Burger: Just a moment here to find page 9 of the appendix, you say?

Mr. David P. Bruton: I’m sorry.

It’s the appendix Your Honor, to the jurisdictional statement --

Chief Justice Warren E. Burger: Oh!

Jurisdictional statement.

Mr. David P. Bruton: -- rather than the appendix itself.

Chief Justice Warren E. Burger: Thank you.

Mr. David P. Bruton: Page 9 of the appendix which is toward the rear.

The bottom paragraph on that page the court said “In reliance on these contracts” and it used the word contracts in quotes because it wasn’t deciding whether they were really contracts or not, “the nonpublic schools adjusted their budgets accordingly and performed the services required by them.”

My proposition is how can you rely on contracts that haven’t even been entered into?

And I think, I can only assume if it please the Court that the court below had in mind that these contracts had been signed on January 15, 1970 not January 15, 1971.

Chief Justice Warren E. Burger: But you have the course of the conduct over the relationships between the parties that might give a basis for some reliance, haven’t you?

Mr. David P. Bruton: You’ve anticipated my next point Mr. Chief Justice.

I think that that is the next dimension of the argument that the defendants are making that they thought the statute was constitutional.

They say they assumed it was going to continue to be so and that therefore they could continue to rely on this subsidy which they had had in prior years.

And I think there, it’s relevant to look at the question of what really were the expectations of the parties here.

This is not, as we had made clear, a case of an overruling of prior precedent.

This is a case in which a statute was passed and from the very beginning, every party involved would it recognized that its constitutionality was open to serious question.

Everyone knew it was going to be taken to the courts and that ultimately this Court was going to have to decide the issue.

Justice William J. Brennan: Well, will you state again Mr. Bruton the date on which the District Court first held that statute unconstitutional in relation to this January 15, 1971 date?

Mr. David P. Bruton: The first decision, I’m not sure I know which decision you’re referring to.

The first decision in the District Court was in November of 1969.

Justice William J. Brennan: And that was to what effect?

Mr. David P. Bruton: And that was to the effect that the statute was constitutional.

Justice William J. Brennan: Was constitutional.

Mr. David P. Bruton: They dismissed the complaint.

Justice William J. Brennan: Right.

Mr. David P. Bruton: The second decision was not rendered until after remand from this Court, which was in I think November of 1971.

Justice William J. Brennan: So at least so far as would any judicial determination, that determination was favorable at the constitutionality of the statute?

Mr. David P. Bruton: That’s correct.

Justice William J. Brennan: As of the time these agreements were made.

Mr. David P. Bruton: That -- it is correct.

Justice Harry A. Blackmun: Of course in the meantime, you had the Rhode Island decision the other way?

Mr. David P. Bruton: DiCenso case came down from the three-judge District Court in June of 1970 before the school year in question here eight months before the contracts were signed, unanimously striking down a very similar statute concerning salary supplements.

This Court’s decision in Walz versus Commissioner which to be sure held that tax deductions for religious contributions were appropriate, the rationale of that decision certainly prefigured the ultimate result in this case.

And narrow really the area of permissible involvement I think between church and state and focused on the problem of entanglement.

All of these things were intervening.

Justice Harry A. Blackmun: As you go along, will you let me have your ideas about burden of proof as to reliance.

Who has it?

Mr. David P. Bruton: I’ll be happy to.

Let me start first with the argument that the defendants have made.

They have said in effect that in the absence of any proof, it falls on the plaintiff and that you must presume that everything has been done and that there is full reliance here.

Perhaps Mr. Justice Blackmun, I’ve misanticipated the direction of your question.

I was going to focus on whether the plaintiffs or the defendants had to show that all had been done by the State that’s necessary to be done.

But perhaps your question was directed to different point.

I want to be sure on response.

Justice Harry A. Blackmun: Go along on what you’ve just suggested.

Mr. David P. Bruton: Well, they’ve cited the Allen case for the proposition that on this kind of record it must be presumed that the State has been doing everything right, and that at this point, this money can be distributed.

And I only want to distinguish what this Court did in Allen from what this Court did in this case in Lemon versus Kurtzman, where it specifically declined to assume on a basis of a bare bones record that there could be no entanglement here.

Allen was dealing with textbooks.

The judgment there was that you can’t assume that the State isn’t able to choose the right kind of textbooks in approving textbooks for the parochial schools.

In this case where you have teacher salaries involved and so forth, the presumption was to the contrary that there would have to be entanglement, so that I’m saying that I don’t think the defendant’s citation of Allen is well founded on this point.

Plus the fact that I say the record does have positive evidence indicating that the State is not doing what it would have to do really to take care of its constitutional obligations here.

Justice William H. Rehnquist: Mr. Bruton, isn’t the -- at least in normal litigation of where you have a judgment of the lower court in your favor, isn’t the normal approach to the equities in this situation that if you think it’s going to be reversed on appeal, you get a temporary restraining order or a stay rather than requiring the prevailing party to anticipate the often serpentine pass of adjudication in the higher courts?

Mr. David P. Bruton: That is certainly often done.

I can only say here, and I do not know what the expense to the plaintiffs would have been in seeking such a stay, or any kind of an injunction.

They would’ve been holding up funds and they decided not to hold up those funds, and as I say again we’re not seeking now to undo those payments.

The payments that were made during the period between trial and appeal had been, and we’re not asking to reverse them.

We’re only talking about the future payments and here we’re again on this question of reliance, and as I say, I don’t think that there could be any genuine element of surprise here.

I think it’s perhaps interesting in connection with the question you raised, to look at the one case in this Court that I have found which lies in this stream of municipal bond cases.

Norton versus Shelby County, it’s cited in both of the briefs.

It may even be referred to in the opinion below.

Now, what that case is usually cited for is some rather black stony in language about the absolute retroactivity of judicial decisions.

But what I’d like to call attention to is the facts of that case. Contrary to the other bond cases, in that case you had a statute passed which purported to transfer certain taxing powers from one political body to another.

The statute was challenged.

The lower court ruled in favor of the statute.

In the time intervening between the trial and the appeal, bonds were issued.

On the appeal, the lower court was reversed, and in that case this Court concluded that the bonds were invalid.

That goes farther than what we have to do here, but I think it’s the only case in that line of cases where you find that sequence of events.

Elsewhere, the case always was that there had been consistent judicial interpretations upholding a statute by the highest court of the jurisdiction involved.

Subsequent to the issuance of bonds, there is a reversal of that precedent.

I think that’s a very different case and certainly not one that we have here.

We’re much closer to Norton versus Shelby County.

When you’re done, I think, looking at this reliance question and really looking at it not just taking it on its face, I think the record indicates that there are no genuinely persuasive reasons for departing from the precedence of this Court in the area of perspective and retrospective application.

Indeed as I say again, in a literal sense a prospective application of the ruling in Lemon versus Kurtzman will give the plaintiffs the result that they are asking for.

Justice William J. Brennan: Do I infer it correctly Mr. Bruton that if you’re wrong in this reliance point, your case is lost?

Mr. David P. Bruton: No, I think that the reliance point is only an element which has been indicated in the decisions of this Court to be taken into account.

I would say that not withstanding the reliance, the fact that there’s more entanglement here would override that.

And for that reason alone, it would be appropriate to deny any further claimants.

Chief Justice Warren E. Burger: You mean the entanglement of trying to determine these past events?

Mr. David P. Bruton: Precisely.

In conclusion, let me say only that I think that in this case to grant the relief of the defendants have sought and have obtained below, would carry this Court really beyond the verge of violation of substantial First Amendment rights.

And beyond the verge of the previous limitations which had been developed with respect to prospective limitation.

And I don’t think that this case provides an appropriate bridge for this Court to travel in either of those two directions.

Chief Justice Warren E. Burger: Well, would it be appropriate for someone at some point to try to find out where their $24 million if that’s the amount involved here, would have a rationale relationship to the totality of secular education costs involved here?

Mr. David P. Bruton: If the inquiry is, would this fully pay for the --

Chief Justice Warren E. Burger: No, would it be more than, not fully pay for, would it be more than the total secular education expense that these private schools dealt with?

Mr. David P. Bruton: It is my presumption Your Honor, that it is less than that in fact that there are more --

Chief Justice Warren E. Burger: I don’t think so.

Mr. David P. Bruton: We have here the Attorney General, the Commonwealth I’m sure if necessary he could be more specific on that.

Justice William J. Brennan: Well, I gather Mr. Bruton, for what you’ve been telling us about the Philadelphia Montgomery case, do I get this correctly?

At least in its administration, the State itself has felt that some kind of inquiry of this nature had to be made as to each of the schools involved?

Mr. David P. Bruton: Well, the inquiry seemed to me to be quite perjury.

It seemed to me that in looking at some language which appeared in the brochure or the --

Justice William J. Brennan: Well, whatever it was.

Mr. David P. Bruton: Whatever it was, an inquiry was made.

Justice William J. Brennan: Then it was determined therefore that perhaps this involves some support of the religious education in school, and therefore, that that school was not qualified.

Does this suggest that this would have to be done then by the or is this what the state intends to do as to every school that --

Mr. David P. Bruton: I’m suggesting --

Justice William J. Brennan: From which this 24 million would go?

Mr. David P. Bruton: I’m suggesting, Your Honor that if the State were to be consistent with what it has done in this case, it would have to do that and that if the same standard were applied, it would rule out all the schools.

And there you are right in to the morass.

Justice William J. Brennan: Who was -- was this a single district judge who took the view he couldn’t look into this?

Mr. David P. Bruton: That’s correct.

He was asked to convene a three-judge court.

It was Judge Troutman, one of the three judges in the court below here.

He declined to convene the three-judge court.

It’s now on appeal on the Court of Appeals.

Thank you.

Chief Justice Warren E. Burger: Mr. Ball.

Argument of William B. Ball

Mr. William B. Ball: Mr. Chief Justice and may it please the Court.

I’m arguing here today not only on behalf of the defendant schools who are named in the complaint, Lemon versus Kurtzman, but also on behalf of the Commonwealth who is represented here today by the Attorney General who sits next to me at counsel table.

And on behalf of the intervenor defendant of Pennsylvania Association of Independent Schools, whose counsel a distinguished Philadelphia -- a member of the Philadelphia bar Mr. Henry T. Reath is here, and who has presented a brief in this case.

The appellants agree with the Commonwealth, with the schools, with the intervenor defendant and with the court below that a decree of unconstitutionality does not necessarily have, in all cases, a retrospective effect.

Rather, the answer to whether it does or does not would depend in part upon considerations of the interests of justice and it will depend also upon whether the constitutional policy which was expressed in the decree will be frustrated if the application is made only prospectively.

The appellants on the first point have said there was really no interest of justice involved, so far as the schools are concerned, and they have said secondly, that the very crisis of which the Court attract in Lemon versus Kurtzman will be perpetuated should the Court hold and agree with the unanimous court below that this statute should be, that its decree should be applied only prospectively.

And as these two points namely, the question of the interest of justice, the question of the constitutional policy that I will address myself to in this argument.

Now, we speak of the interest of justice, I think Your Honors that we have to focus first of all on the holders of that interest.

And in this case, they are school people, they are educators, they are people who are working with parents and with children in Pennsylvania.

In the real life business of being locked in a struggle against inflation and taxation in educating 23% of the population of the Commonwealth of the school population of the Commonwealth of Pennsylvania, some 535,000 children.

Children who are being educated in schools in the inner city of Philadelphia, in the large population centers of Pittsburgh and Scranton, and Erie, and who are also found in the coal regions and the rural regions of that state.

As we look at these holders of this interest then we have to ask ourselves whether they were in good faith, whether they were justified and reasonably relying upon the continuing validity of this Act which was passed by the legislature.

Whether indeed there were actual real legal contracts which they had entered upon, and whether they are going to suffer hardship if the 1970-1971 claimants which they have earned are not to denied them.

I too feel that the chronology of events becomes important in understanding this case.

As counsel has stated, the Act was passed in June of 1968.

Immediately thereafter, the Commonwealth Department of Education tooled up to put the Act into full operation.

That began to occur immediately upon the passage of the Act, and by the fall, time of the opening of the school year an office to administer this Act had been set up and paid employees of that office appointed, and their work had begun.

Indeed, counsel speaks of the regulations which counsel’s briefs tells us appeared in December of that year.

These were created in the fall of that year.

Thus, the fact that a challenge to this Act had been announced in the press immediately upon the passage of the Act, but no suit brought certainly gave the administrators of the schools reasonable reliance, at least a measure of it that the Act was going to remain unchallenged.

The plaintiffs had every opportunity to bring an injunction action that very fall because money was committed to the program and that program was in on operation at this time, they neglected to do so.

Justice Potter Stewart: When had the Act been asked by the legislature?

Mr. William B. Ball: In June of 1968, Mr. Justice Stewart.

Justice Potter Stewart: In June?

Mr. William B. Ball: Yes.

Justice Potter Stewart: And as you say it was immediately announced publicly that there was going to be a --

Mr. William B. Ball: That is correct.

Justice Potter Stewart: -- attack upon it in the course?

Mr. William B. Ball: Yes, that’s correct.

And there was full opportunity for the plaintiffs to have brought their suit.

Justice William J. Brennan: And actually Mr. Ball, when was the action brought?

Mr. William B. Ball: The action was brought June 3, 1969.

Justice William J. Brennan: Almost a year?

Mr. William B. Ball: Almost a year.

Justice William J. Brennan: But the announcement had been made upon its adoption that one would be brought?

Mr. William B. Ball: Yes, that is correct as counsel in his statement --

Justice William J. Brennan: And was it the folks who announced that they were going to bring it, in fact the ones who did bring it?

Mr. William B. Ball: Yes.

The group that announced that is one of the plaintiffs in this case, a spokesman for an organization known as Americans United and the speech given at Pittsburgh.

Counsel has said and admitted in his argument today that the plaintiffs in the plural did announce this at this time.

Thus, this was apparently with the concurrence of those who ultimately did become all of the plaintiffs in this case.

Now then, contracts were entered into January 15, 1969.

Why the delay if this was a true contractual situation?

In this governmental program as in many similar programs, say if the federal government, sometimes legislation is passed putting a program into effect.

Then the people who are going to participate in the program enter into application relationships in anticipation of entering contracts under the program, and they then go ahead and execute the contract at some later date.

And this is how that January 15 date gets locked in to the annual renewal of the program.

1181 schools entered into contracts with the Commonwealth, and I should like to pause here briefly to cover a point that I don’t think is essential for our case, though I think it does add to the interest of justice the equity aspect of this case.

Chief Justice Warren E. Burger: Mr. Ball, when were the appropriations available?

Mr. William B. Ball: The appropriations under the scheme of the Act would not become available till the following September.

In other words, the first payment these are payments by reimbursement in a typical purchase and service situation, Mr. Chief Justice.

And the first payment would be made for the 1968-1969 school year.

The first payment would be made in September 1969.

Payments were always after the fact.

Chief Justice Warren E. Burger: Well, what you’re -- do I understand that what you’re saying is that in effect in January 1969 effect was that they executed a formal contract that carried out informal understandings and agreements that had been reached beginning with the opening of the school or before the opening of school?

Mr. William B. Ball: That is correct Mr. Chief Justice, just a passing word about contracts because we do not think that the existence of a contract is essential to our case though we believe it adds to the equities of our case.

The lower court, the District Court in its original decision upholding the Act, 310 Federal Supplement at page 40 called these contracts.

We have stated in our brief, the Pennsylvania Law which is applicable to these agreements and which clearly demonstrates their contracts.

If these are not contracts, then the purchase of service contract which typifies all sorts of arrangements between states and sectarian institutions of welfare and health, and care of the aged, childcare and so on, are certainly not contracts though they have been upheld as contracts in case after case.

Among these the leading Pennsylvania case on purchase of service from sectarian child caring institutions, Shade versus Allegheny County Institution District which we have cited in our brief.

Justice Harry A. Blackmun: Mr. Ball, was anything added or any difference, did any difference result by virtue of these contracts?

Were teachers added, was curriculum changed anything of this kind?

Mr. William B. Ball: Yes, Mr. Justice Blackmun.

Under these contracts and under the arrangement, under the service which took place in pursuant to the Act.

First of all, it was necessary that the sectarian schools replaced any religiously oriented textbooks which they might have in the four subjects covered by the Act with books which had to have the prior approval of the State Secretary of Education as provided in the Act and the regulations.

Furthermore, they had to conform their teaching plans to the severe secularity requirements of the Act, so that in the teaching of these four subjects, those requirements would be observed.

They also had to setup separate accounting systems according to one provision of the Act, whereby they had to keep separate accounts related to these four subjects.

They made administrative changes obviously in the areas pertaining to teacher certification requirements under the Act, and also with respect to standardized testing which came as a new requirement to many of the schools and was aimed in improving quality.

This Court in its opinion in Lemon versus Kurtzman made note of the fact that the very purpose of this program was to enhance, and this Court found was to enhance the quality of education in the schools which were served under the Act.

Justice William J. Brennan: What I expect Mr. Ball that’s not to suggest that the schools had this Act not been passed, would not have taught these four subject.

Mr. William B. Ball: No indeed.

And the fact that the schools now did in some cases what they had been doing before now being funded for it, present us a picture very, very similar to what happens under Medicaid, to what happens under other kinds of purchase of service agreements.

That is to say the State enters into a contract with let us say a sectarian child caring institution.

It does so, and this brings us back to a question asked by Mr. Chief Justice Burger this morning.

It does so because it has a public need.

The State has a need for that service.

It needs to have someone take care let’s say of dependent and neglected children.

So it goes to a sectarian institution, child caring institution, and pays it to carry on this publicly needed service.

The institution itself does nothing more than it did before, but it is now aided materially in the rendering of that service, and indeed it may improve the services.

We happen to know that in Pennsylvania, what this Act meant was that a school which had a class let’s say of 70 children in a math class could now split that into two or three sections.

A school which had not been able to afford to have a calculus course could now hire a calculus teacher.

A school which had not previously had a course in Spanish could now institute a course in Spanish.

Justice William J. Brennan: Which is to suggest then that in fact, this enable expansion of faculties at least in terms of numbers?

Mr. William B. Ball: Or indeed it did, yes.

That is correct Mr. Justice Brennan.

Finally, the Act itself four times uses the term contract, which I think is significant in terms of Pennsylvania’s legislation knowing Pennsylvania’s Law and knowing what it was doing pursuant to that law.

Then in June 3, 1969 the plaintiffs instituted their case.

The program goes into its second year.

And in November 28, 1969 the very form selected by the plaintiffs, three-judge Federal Court of Philadelphia, upholds the Act as being constitutional.

I could scarcely think of a greater incentive to the schools to continue to serve under this Act.

As to the Commonwealth, the Commonwealth had no need to have a reliance upon the Act.

The Commonwealth was bound by the Act, bound by the law of Pennsylvania to continue the program.

Thereafter, in May 15, 1970 the decision of this Court in Walz versus the Tax Commission takes place.

There was some comment during Mr. Bruton’s argument with respect to the Walz case.

This seemed to us as turnings of this decision.

First of all to uphold direct aid to religion, this was the fact of the case, the most essential part of it.

It did nothing to disturb the purpose and effect test in Allen, and Allen’s careful demarcation of the secular function which was found to be supportable by the public in that case.

Justice William J. Brennan: But Mr. Ball am I not right that at least some of the opinions in Walz suggest that there might be a distinction between subsidy situations and tax exemption?

Mr. William B. Ball: That’s perfectly true Mr. Justice Brennan, but the fact --

Chief Justice Warren E. Burger: I think its fair -- isn’t it fair to say that the Court’s opinion indicated some doubts about, at least doubt about direct subsidies?

Mr. William B. Ball: I think there can be no doubt of that, but on balance as we read that opinion, we felt that it did not disturb and could not have disturbed what was already determined by the Court in Board of Education versus Allen, where we have a clear support with public funds of the secular function clearly spelled out by the Court which takes place or is offered in sectarian schools.

We were also encouraged by the fact that there was extensive italicizing by the Chief Justice in his opinion for the Court of a number of passages from cases in which the aid which had been given to sectarian education as for example in Allen was heavily stressed.

Again, we have the authority of Mr. Justice Douglas in the Walz case who all but predicted that the Walz decision lead directly to support of aid to parochial schools.

Again we found no --

Justice William J. Brennan: That was a dissent?

Mr. William B. Ball: That indeed was a dissent, but a very authoritative dissent, if I may say so.

Justice William J. Brennan: Oh, I’m sure of that.

Mr. William B. Ball: We also examined the concept of entanglement in terms of, or in comparison to the extensive regulation of nonpublic schools which this Court had pointed to in Board of Education versus Allen.

We did not think that the provisions with respect to secularity, with respect to church school or state school relationships contained in Act 109 added a feathers weight to the kind of relationship which was already considered licit in the law and which had been recognized by this Court.

The school administrators both sectarian and nonsectarian had no complaint with respect to the administration of this Act.

Conceivably there would be sense to it, and again we saw no degree of relationship such as is observed in purchase of service arrangements in the welfare and healthcare fields.

And thus, we think that the situation as we came in to the 1970-1971 school year was one in which this Act had been upheld by a court chosen by the plaintiffs.

We thought this Act basically did not confront the decision of the Court in Walz and therefore, we think it was a complete basis for a lawyer’s reliance in proceeding with the contracts for the coming year.

But we are talking here not about a lawyer’s reliance, but educator’s reliance, people who are in the job of educating and whose schools desperately needed the funding in question.

Those people and the parents who are the basic source of support of the schools in question, and they certainly could not have desisted from the program in accordance with the ethical obligation which they have to their constituents.

Chief Justice Warren E. Burger: Well, I take it you’re addressing yourself in part at least to the predictability of the Court’s holding on this program as of sometime before the holding was actually rendered?

I suppose it’s reasonable to assume that people trying to make that prediction would be entitled now to look at the fact that some members of the court didn’t agree with the holding?

Mr. William B. Ball: Yes.

Chief Justice Warren E. Burger: I don’t recall now for the numbers in the first Lemon Kurtzman, there were dissenting opinions --

Mr. William B. Ball: Yes.

Chief Justice Warren E. Burger: -- they were representing.

Mr. William B. Ball: There were indeed Mr. Chief Justice.

But the point that I’m trying to stress is this, that if we’re talking here about the good faith reliance, I think that we do not and cannot impose upon either the turnings for the schools, the duties of predicting where this Court would’ve gone in Lemon versus Kurtzman the test case.

I think in the second place, the educators, the people who are operating schools and the parents will certainly bond to continue the program, and having before them -- having before them not a decision of this Court striking down such a program, but having before them a decision of the District Court upholding the program.

I couldn’t imagine better basis for reliance and good faith reliance.

The decision came down finally June 28, 1971.

The Court remanded the case to the District Court, the Supreme Court not attempting to spell out to rule upon the effect of its this decision in Kurtzman.

The court below, after full briefing an argument unanimously, this time including Judge Hastie, held that the effect of this decree should be prospective only, and pointed to the elements, reliance and hardship which we’ve been discussing here.

Chief Justice Warren E. Burger: As I recall it, Judge Hastie dissented in the first three-judge court?

Mr. William B. Ball: That is correct Mr. Chief Justice.

I come now to a second problem that this case poses.

Then (Inaudible) the purpose served by the decree of the Court in Lemon versus Kurtzman, namely the prevention of excessive entanglement will be frustrated if the payments are to be made.

The Commonwealth of course had to make a determination of the eligibility of the schools before it could have taken the position in court asking that these schools be permitted to be paid the money in question.

And admittedly, the very activities which the Act required the Commonwealth to go through, the speedy inspection, the surveillance, the audits and what not was precisely what was offensive to this Court as it reviewed the Act in question.

The price, in other words of payment to the schools would be the subjecting the schools to these various kinds of controls and inspections and checkups which this Court said constituted excessive entanglement between the state and the church schools.

I’d like to focus, if we might, on precisely what these inspections and so on, what the requirements of the Act were.

Justice William J. Brennan: And before you do Mr. Ball may I ask does payment out of this $24 million contemplate doing this as to each of the recipient schools?

Mr. William B. Ball: It contemplates that it will have been done.

Justice William J. Brennan: But before the money is paid out?

Mr. William B. Ball: Precisely.

Justice William J. Brennan: What you’re now going to tell us it should be done before the money is paid out, is that it?

Mr. William B. Ball: Yes.

Justice William J. Brennan: Thank you.

Mr. William B. Ball: That’s right.

The Act calls for reimbursement of what it describes as actual cost, actual cost of two things.

Teachers’ salaries not teachers’ salaries, but the teachers’ salaries allocated to the four subjects.

The number of hours a teacher logs in for example in high school French 1.

Secondly, instructional materials and textbooks allocated again to the four subjects.

Actual costs of these.

Now, as to the textbooks and instructional materials, looking at it now from the point of view in entanglement, the Act required that these be previously approved prior to use, prior to use in the classroom, prior to any reimbursement of these books, previously approved and the regulations spell that after.

The regulations say that a list of textbooks used by participating nonpublic schools and programs for which payment is sought onto the Act shall be submitted the Superintendent of Public Instruction by the nonpublic schools.

Thereafter, the Superintendent shall review each list and will notify the nonpublic school of his approval in whole or in part of a list of textbooks being guided by the requirements of the Act.

So as far as textbooks and instructional materials are concerned, these had to have been previously reviewed and approved by the Superintendent of Education.

This has been discharged.

This is an accomplished fact.

Payment is not going to cause some state official now to go into classrooms and begin to examine books.

Secondly as to teachers’ salaries, the classes involved took place years ago.

So that if it were asked was the worthy secularity requirements of the act observed in the teaching of the four subjects, one would have to say that the Commonwealth did perform that function.

That this case which Mr. Bruton cites is strong evidence of this fact, but more important than that is the fact that there is a clearly established presumption in the law of Pennsylvania.

I cite the case of Falkenburg versus Venango Township 297 Pennsylvania.

There was always a presumption that official acts or duties have been properly performed.

And in general, this is to be presumed that everything done by an officer in connection with the performance of an official act in the line of his duty was legally done.

Now the plaintiffs had every opportunity to rebut that presumption.

They would not --

Justice William J. Brennan: Do we know in fact exactly what audit procedures were followed as to teachers’ salaries?

Mr. William B. Ball: As to teachers’ salaries?

Justice William J. Brennan: Is there anything in the record to tell?

Mr. William B. Ball: As to the instruction.

I believe you mean the instruction --

Justice William J. Brennan: Well, I thought you said Mr. Ball perhaps I didn’t catch it correctly.

Mr. William B. Ball: Yes.

Justice William J. Brennan: That a teacher logged in a certain number of hours?

Mr. William B. Ball: Yes.

Justice William J. Brennan: And then submits, I gather, the school submits in her behalf a reimbursement?

Mr. William B. Ball: That is correct.

Justice William J. Brennan: To the school of the amount paid out to that teacher, isn’t that it?

Mr. William B. Ball: And there are two audits which then take place.

Justice William J. Brennan: That’s what I was, yes.

Mr. William B. Ball: First of all there is an audit which neither of us has referred to in our briefs, but it takes place under Pennsylvania Law.

It’s an audit of the State Treasurer which would be obvious that the State Treasurer would not certify the certain school could be paid any money, until the state treasurer’s auditors had checked out whether these hours had been performed, whether teacher “X” had taught 100 hours of freshman high school of French, for example.

Justice William J. Brennan: But, that’s the extent of his audit?

Mr. William B. Ball: That is correct.

The Superintendent of Public Instruction now the Secretary of Education of Pennsylvania has the duty to ascertain whether the instruction in question, rather in the course of the instruction in question the secularity requirements of the Act were observed.

Justice William J. Brennan: Now, how does he go about doing that?

Mr. William B. Ball: That I can not answer.

The Act requires that no religious matter be introduced in the teaching of the four subjects.

Whatever technique the Secretary of Education would use to ascertain that, whether he would have an inspector spot check classrooms, or whether he would assume that in the absence of complaint, as we do in the public schools with respect to bible reading that in the absence of complaint, it is presumed that the teacher carried out the obligation imposed upon him by law.

Justice William J. Brennan: But I gather Mr. Ball, we have nothing in this record to show us what in fact he did?

Mr. William B. Ball: That is perfectly correct --

Justice William J. Brennan: What about this Philadelphia, the case that Mr. Bruton mentioned?

Mr. William B. Ball: Well, this course is not on the record of this case.

Justice William J. Brennan: Yes, I know.

Mr. William B. Ball: And nothing that has been cited on the brief submitted is necessarily true or false.

Justice William J. Brennan: Yes.

Mr. William B. Ball: It’s a statement of counsel about what’s going on in another case.

Taking that to be true however, as I do, this evidence is the fact that the Commonwealth used certain techniques to determine whether a particular school was within or outside of the law of the secularity requirements of the law.

Justice William J. Brennan: Doesn’t that get us into the very problem of entanglement?

Mr. William B. Ball: Precisely.

It’s entanglement already over.

It is entanglement which took place.

Justice Potter Stewart: Your basic point is that that’s water over the dam in any event, isn’t it

Mr. William B. Ball: Basic point is that it is water over the dam.

Chief Justice Warren E. Burger: It was that entanglement that formed the basis of the Court’s holding in the prior case, was it not?

Mr. William B. Ball: Exactly.

You see Mr. Chief Justice we’re not here to reargue Lemon versus Kurtzman.

I tried to state very, very carefully that these offending relationships are precisely what took place.

The fact of having to change the textbooks, to get approval of textbooks, prior approval of textbooks and the instruction materials, the requirement with the Secretary of Education satisfy himself that no religious matter was introduced in the teaching of the four subjects.

All of that must be presumed to have taken place.

The law is presumed to have been carried out, and the very fact that the Commonwealth’s having made, having asked the court to make the payments to the schools, to permit the payments to be made to the schools.

Quite as --

Chief Justice Warren E. Burger: And you said that under Pennsylvania law that it’s presumptively correct?

Mr. William B. Ball: Yes.

Justice William J. Brennan: Do we now Mr. Ball, whether there been any disqualifications of schools upon that kind of audit, and a determination that they had been teaching these?

Mr. William B. Ball: I’m quite confident that there have been disqualifications of schools.

The plaintiffs in their -- this brief say that not only this school but several other schools, Christian Montgomery Academy and other schools have been disqualified.

The plaintiffs have had every opportunity to bring this into court.

They certainly could’ve had used evidence to show what kind of inspections were made and whether these inspections conformed the Act, and in what instances there had been improper inspections, not enough of them was on.

They have never rebutted the presumption.

And I think that we cannot presume that the Commonwealth would not carry out the law.

That the Commonwealth could behave dishonestly.

Any more I think that we can assume that teachers and administrators in schools are not capable of observing the law, and acting as good citizens capable of understanding and observing the law in spite of all religious zeal which they might have.

With respect then to the all of these features, they have been discharged, and these, the factors of entanglement can no longer exist.

Justice William J. Brennan: I gather Mr. Ball, those are the only two audit operations had take place?

One of the treasurer and the --

Mr. William B. Ball: Approval of the textbooks.

Justice William J. Brennan: Yes.

Mr. William B. Ball: Yes, secondly, the Secretary of Education’s check out of the teacher.

Justice William J. Brennan: Yes, and then the --

Mr. William B. Ball: Thirdly, the State Treasurer’s audit.

Justice William J. Brennan: Audit.

Mr. William B. Ball: And fourthly, a post audit.

Now the post audit is referred to in the Act and it is an audit whereby the auditor, and according to the terms of the Act, the Auditor General examines the separate funds and accounts not of the school, not of the whole school operation at all.

Separate funds and accounts pertaining to the costs of secular educational service which is a defined term in the Act, the providing of services into four subjects.

Justice William J. Brennan: Well is this a check on the state officials, rather than a check on the --

Mr. William B. Ball: It’s a check on the check so to speak.

Justice William J. Brennan: Yes.

Mr. William B. Ball: In other words, let us what takes place in the post audit is simply a review of the audit of the State Treasurer.

In other words, the checks which have been paid out are examined, examined against the allocation of time if the teacher is paid $15.00 an hour let us suppose.

And the record shows that she put in 60 hours is the amount is to be paid, or was paid, or is listed by certified by the State Treasurer that she is to be paid.

Does that equal 15 times 60?

That’s what that the audit amounts in those sense Mr. Justice Brennan.

Is it an examination of the whole curriculum or life of the school?

In no sense, does it involve classroom surveillance?

I therefore conclude by urging the Court to affirm the judgment below as clear as it was, and I hope it is clear to the Court that the interest of justice are thereby served, and secondly that no entanglements for the future are possible under the decree of the court below.

Justice Lewis F. Powell: Mr. Ball, will you take just a minute and try to get me clear on the point that Mr. Bruton was making as I understood in that there was a mistake in the record as to the date the contracts were entered into?

I think he said they were entered into January 15, 1971 for the school year 1970-1971, and therefore they could’ve been no reliance on the contracts since the school year was half over.

What is your response to that?

Mr. William B. Ball: My response to that is that the problem of contracting had been established in the 1968.

There was a period between the enactment of Act 109 and the getting it into operation.

During which, the school year 1968-1969 began.

Therefore, what was sought were applications from any schools that were interested in participating in the program and they began to flow in.

Everyone had read the terms of the Act and knew that they would be under contract.

The nature of the contract could certainly be defined through a reading of the Act.

And therefore, in the initial year tooling up, there was a small lag between the beginning of September and January 15 for the issuing of those first contracts.

Then a program is instituted which will obviously an annually repeated program.

And each year therefore, this date of January 15th was carried forward so that there could be complete reliance not merely on the contract but more basically upon the ongoing continuation of the program.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.