*1 April earned his termination since

1972.1 foregoing shall constitute this findings of fact and conclusions

Court’s hereby plaintiff is ordered

of law. The judgment, ap- this Court

to submit to proved defendant, form the as to foregoing. consistent with the litigation be borne Costs of this defendant, City Shreveport, Loui-

siana.

John C. ROEMER, III, et al.

BOARD OF PUBLIC WORKS OF the

STATE OF MARYLAND et al.

Civ. No. 72-307-Y.

United States Court, District Maryland. D.

Oct. 1974.

Probable Jurisdiction Noted Feb. 1975. See 95 S.Ct. 1115.

Appeal April Dismissed in Part See 95 S.Ct. 1455. wages by gainful employment damages 1. Such are to between opinion. be reduced the extent his Rutledge mitigated his Charles Elliott the date of dismissal *2 Loyola College City

fessors of Baltimore, Inc. Mudd, Howell,

John H. H. Thomas Gately, Md., Baltimore, William F. Maryland College. Western *3 George Constable, Baltimore, Md., W. College Maryland, of Notre Dame of Inc.

George Baltimore, Md., Tyler, T. College Joseph Emmitsburg, of Saint Maryland, Inc. BRYAN, Judge,

Before Senior Circuit YOUNG, and WATKINS and District Judges. YOUNG, Judge. H. JOSEPH District Mary 77A, seq. 65, Article et of the § provides public land Annotated Code aid non-categorical grants in the of form eligible colleges in the and universities State. Four citizens taxpayers1 challenged the constitu 77A, tionality of Md.Ann.Code art. § grounds seq. (1969 Repl.Yol.) et on the statute violates the Establish ment of the Clause First Amendment2 the Constitution of the United States. among eligible recipients Included Greenwald, Baltimore, Lawrence S. are five church-affiliated institutions. Md., plaintiffs. against plaintiffs injunction seek an Atty. Gen., Md., Burch, Francis B. grants further aid a declaration George Nilson, Atty. Md., Gen., A. Asst. that all funds received Baltimore, Md., for Bd. of Public Works paid the state over to Maryland, Mandel, of of State Marvin in the with interest.3 The defendants Governor, Goldstein, Comptrol- Louis L. Comptroller Governor, case are the ler, Leutkemeyer, and John A. Treasur- Maryland, of all Treasurer er. of whom Public constitute the Board of Connolly, Wilson, Maryland, Paul R. Charles EL of Works the State of Jr., C., Washington, D. for Mt. Saint five institutions which church-affiliated Mary's College recipients and the Pro- Associated aid under the statute.4 original plaintiffs 1. The “Congress respecting in this suit included 2. shall make no law * * Mary the American Civil Liberties Union of an establishment of land, and Mary- Other Protestants Americans In American Civil Union of Liberties Separation Works, United for supra and State. Church land v. n. Board Public However, unpublished opinion plaintiffs’ challenge in an earlier this Court dismissed case, organizational in this constitutionality both statute based on of this plaintiffs were dismissed for lack of stand the Free the First Exercise Clause ing. See American Civil Liberties Union Amendment. Maryland v. Board of Public Works Findings Fact, Appendix, 3. See n. 2. Maryland, (D. State of Civil No. 72-307-Y 13, 1972) (Young, J.). Md. Dec. College Dame, The four 4. The of Notre Mount St. plaintiffs, Maryland taxpayers, Mary’s individual all College, Joseph College, and Saint permitted proceed were on the Loyola College basis of the Associated Professors Cohen, Flast v. City Baltimore, (Loyola S.Ct. Inc. Col- (1968). lege) L.Ed.2d 947 all affiliated the Homan was purposes.” the sole factual lized tions aid. cational hearings theological degrees this leges credited limits was convened payable Ct. fendant schools and the opinion rests, resulted Maryland 1495. 68A which reads: “None of ucation. Judge Joseph Tilton v. are not Lemon v. S.Ct. Jurisdiction Section 2105, 29 L.Ed.2d 745 opinion thirteen non-ehurch-affiliated appointed to conduct and 2284. United 2091, which award and universities Act. A District Court joined under this subtitle shall be by from these institutions which the institutions 1972, Richardson, However, educational 66 Legislature 29 L.Ed.2d 790 as an to the character Ch. of the article under as defendants. pursuant is based H. program after basis appendix. of fact which 534, findings Young only hearings constitute 403 U.S. Department 403 U.S. the decisions incorporated ^[1972] upon which this enacted section to 28 U.S.C. §§ not of three which are to States administration seminarian for sectarian (1971), and fact-finding private eligible receive (1971), the 602, 91 Md.Laws U.S.C. District 672, moneys institu- judges attack panel edu- into uti- Ed- col- ac- 91 in S. § public was ly would Each previous lars ments use vide a formula changed trator each school degree considerable prior ter average yearly expenditure *4 hundred dollars the number of associate excluding hundred dollar has of a direct grees, of arts in among demic statute was amount of aid to be dependent The formula the state $3,000,000 the number of full-time students and functions for resulted in the number of computed change to the creation of the state year. conferred aid to the provided degrees conferred and universities any purpose. the various on several occasions. paid academic seminarian or of its functions as up grant question college system multiplied expertise program. The for the to originally grant a and by multiplying by by for an additional by a total of which the school could significant 1974 in the institution in by given year. bachelor’s and had school for each statutory schools as The five hundred amendments entire various aid is allocated theological previous enacted, approximate- 1973 amend- 15% institutions. in the form The funds increase the schools developed a State, in- program. graduate adminis- degrees, formula student As charac- private pro- aca- five dol- two aid in in 77A, analysis et 65 The of Article responsibility §§ The administration problem seq.' presents with a Mary- this Court is vested in the complexity. great sensitivity Higher Council for Education. land Throughout country’s history the public appointed council is a commission separation has and state pro- church by the to coordinate state Governor guard a pre- served the nation well as grams higher and to education against religious prin- oppression. This ap- pare reports and recommendations protect ciple further served to has propriate state officials and vitality integrity reli- higher of American edu- for the benefit gious of a existence institutions.5 The established cation. Council was largely gion Maryland College attributable was America Western Catholic Church. separation of church and state: with the Methodist Church. affiliated gov- intimately Religions proceedings united with Since initiation known Joseph College earth have been al- ernments defunct has become Saint power sovereign ter- joined though founded exercise is still as defendant it faith; con- but when a ror case. nature, I do not alliance of this tracts an ago Tocqueville commits century affirm that it hesitate Alexis de Over sacrifice strength a man who should reli- same error unusual concluded that system private colleges (1973); L.Ed.2d 948 Levitt universi- v. Commit including ties, component Education, 472, of church-af- tee for Public 413 U.S. institutions, 2814, (1973); filiated has maintained a 93 S.Ct. L.Ed.2d pluralist Lemon, 825, tradition v. education Sloan 413 U.S. 93 S.Ct. savings 2982, (1973) ; in substantial has resulted v. L.Ed.2d 939 Lemon treasury. question Kurtzman, public 403 U.S. 91 S.Ct. Legislature presented is whether the (1971). 29 L.Ed.2d 745 an otherwise commendable effort to as- Supreme Court system private sist the education part evolved a three test which the Maryland has violated the First Amend- constitutionality of a statute be de prohibition “respecting ment of laws light termined in of the Establishment religion.” establishment This Court “First, Clause. the statute must have k must conclude that the statute does legislative purpose; second, secular principal its violate the Establishment Clause. effect must be one that neither advances nor inhibits reli The Establishment Clause clear gion .; finally, . . must statute ly any prevent public does not form of government not foster ‘an excessive tanglement en- any aid or service to church-affiliated ” religion.’ Lemon institution, see, g., McNair, e. Hunt v. Kurtzman, supra, 612-613, 403 U.S. at 413 U.S. 37 L.Ed.2d entangle- 91 S.Ct. at 2111. Government (1973); Richardson, Tilton v. *5 ment must be avoided in two areas— 672, 2091, 91 U.S. S.Ct. 29 L.Ed.2d 790 the statute must not cause excessive ad- (1971); Commission, Walz v. Tax 397 entanglement ministrative in its en- 664, 1409, U.S. 90 S.Ct. 25 L.Ed.2d 697 program and forcement the aid must (1970); Allen, of Board Education v. entanglement not religion cause excessive of 236, 1923, 392 U.S. S.Ct. 20 88 L.Ed.2d political process. in the See (1968); 1060 Everson v. Board Edu Kurtzman, supra. Lemon v. cation, 504, 1, 330 U.S. 67 L.Ed. S.Ct. 91 findings The in fact this case clear- (1047); Roberts, Bradfield v. ly indicate that the statute was enacted 291, 121, 20 S.Ct. 44 L.Ed. 168 purpose. program a secular The (1899).6 Supreme Court has also Maryland will taxpayers save the sub- explicitly rejected the notion that “ * * * money stantial amounts of which would all aid is forbidden because spent otherwise have had to be to ex- aspect aid to one of an institution frees pand public educational institutions. spend it to its other resources reli The Court notes that over two-thirds gious McNair, ends.” supra, Hunt recipient institutions have no reli- 743, U.S. at 93 S.Ct. at 2874. On the gious affiliations. hand, other aid to church-related institu analyzed greatest tions must be findings with the of fact also conclude that purposes to care ensure that the the statute has not had the ef- religion advancing clauses are not inhibiting religion. See violated. fect of analysis Committee Nyquist, Public Education v. This Court’s indicates that this 413 U.S. 37 conclusion is correct. present welfare; his future to Tocqueville, his Democracy in and A. de in control. obtaining power a America, (Bradley 1945). which it has no ed. claim, authority it risks is which * * * rightfully example, its own. anAs Council on Higher performs Education a valuable func- r-eligion perhaps pow- In Maryland higher America generally, less tion for education periods erful thereby than it has been at certain and benefits church-affiliated col- among nations; leges and Maryland. certain but its influ- and universities located in lasting. ence suggestion, is more however, It restricts itself There is no resources, operations, its leaving ques- own but of these none can Council’s aside the deprive it; limited, per- Court, its circle it but tion now before this are violative undisputed vades it and it holds under the Establishment Clause. setting.” pri in a secular In a find that edu- A court setting prohibition mary aid will be cation satis- effect “ . it fied . . when existence limitations to advance safeguards against in sectarian use. Thus to an institution flows portion provision Tilton, pervasive held unconstitu- that a substantial so permitted the re- tional school of its functions subsumed spe- buildings ligious publicly-financed for reli- funds a mission or when it use gious religious purposes twenty-year cifically activity peri- an other- after substantially setting.” government secular od. Some form surveil- wise buildings McNair, supra, lance of the use of the 413 U.S. would Hunt v. necessary twenty years even be after at 2874. S.Ct. activity prevent specifically religious Hunt Tilton are instructive Both occurring buildings. from ever determining an institution when Hunt, prohi- the Court found that the “pervasively The Court sectarian.” religious bitions on use in the lease and composite rejected the use of a Tilton satisfy require- the Act served to profile in- a sectarian institution specifically ments that no ac- on the actual characteris- focused stead tivity supported. colleges. independent tics of the four inquiry, The focus of our there that all four schools Court noted fore, must be whether sufficient safe to the 1940 Statement subscribed guards exist ensure funds Principles on Academic Freedom support diverted activi by the American Asso- endorsed Tenure ty. safeguards Mary Such exist Professors, University ciation of land statute. The statute bars use atmosphere freedom of academic that an sup purposes funds for or to campus. prevailed Each on each seminary divinity port programs. hired students four schools admitted president of the institution must the af- faculty were not members who Higher verify to the Educa Council on re- None of the schools filiated church. *6 year tion on two each that occasions quired services. at attendance public be funds have not and will not required Although stu- all of schools purposes. used for sectarian The Coun study theology, courses dents to authority to cil itself has administrative taught according the academic to were perform public as such audits of funds subject matter. requirements of necessary satisfy may require be have in this case five defendants The Findings of of the statute. ments See closely col- to the been found conform that with Fact. This Court is satisfied Richardson, leges approved in Tilton v. exception safe one there are sufficient Findings Thus, supra. as of Fact.7 See guards prevent of the funds the use a matter of fact the defendants purposes. for sectarian pervasively would that aid so advancing reli- a effect have only qualification The to this gion. general theology and conclusion is as The fact finder was courses. also cannot be said The aid religious activity “specifically unable to characterize the course offer- to fund a Maryland McNair, analyzed schools are char- v. su The defendant 7. The in Hunt school high degree provides striking of institutional pra, a the five acterized a contrast autonomy. institutions exer- The affiliated in this institutions case. defendant budget policies of cise no control over the were elected board of trustees of that school Only Baptist re- Western schools. the South Carolina Convention. approval a small contribution and sub- ceives financial was neces Convention report transactions, sary to the affiliated mits church, a statistical and for certain financial only Convention could amend the Nevertheless, the school was found charter. to be similar to the institutions involved Tilton. ings subjects poses at the available institutions that bene though fited, Even defendant schools. nature the aid that various resulting prevailed provides, academic freedom at each and the rela tionship government school and there was no indica- between the fendant religious authority.” indoctrination was Lemon v. tion that goal schools, possibility supra, exist- of these 403 U.S. at 91 S. at ed could be devoted to Ct. 2112. that these courses religious experiences deepening purposes character and teaching particular faith rather than to five defendant theology discipline. academic as an supra Findings discussed Theology required equivalent or its is a only Fact. It be need noted that these and in case is at each school each course perform essentially edu- schools secular taught by a cleric the affiliated quite cational and are similar functions Absent a clear indication church. to the defendant schools in Tilton. Reli- taught theology as the discipline, was an academic gion permeate does not edu- secular programs state aid to such cational function these schools. justified. be As no such indica- cannot The nature of the aid factor the en- defendants, the tion exists to these tanglement analysis the ideo- focuses on Higher take Council steps Education must logical particu- neutrality or bias of the public ensure funds are not program. Supreme Thus, aid lar support programs. used to such approved programs aid Court has which provided The Council’s failure to take such funds for the construction of steps however, buildings far, thus does not lead to school in Tilton Hunt and finding unconstitutionality. approved textbooks, As also loans of see has possibility Allen, supra, “A was noted ways exists, Tilton: al v. Board Education legiti money rides, course, see Everson bus objectives any legislative supra, requiring mate program Education, law or Board given only conscious that the ideo- subverted was itself design logically required or lax enforcement. a mini- neutral possi government judicial But concern about these mum of surveillance. standing cannot, alone, bilities warrant Supreme By contrast, Court striking down a statute as unconstitu sup programs disapproved aid Richardson, supra, tional.” Tilton v. building port maintenance, see Commit atU.S. Nyquist, tee Public Education v. entanglement supra, salaries, excessive see Lemon test teachers’ *7 aspect concerned in supra, its the administrative v. which assist program children, that government aid parents an does not lead Levitt v. school see pre- Education, supra; encroachment on the for Public Committee religion, political cincts in its as- for Public Education Committee pect supra. that Nyquist, does not intrude into political process. case, the In each some emerges from What a considera governmental involvement with is that tion these cases the conviction perhaps inevitable, Walz v. Tax cf. ideological neutrality particular the of a Commission, supra (governmental duty program dependent type of aid on only to ensure that bona fide being institution benefited. The exemption), bodies receive tax such but buildings provided in Tilton classroom entanglement kept must be mini- to the and Hunt no more neutral in the are ab gov- mum consistent with fulfillment of buildings than classroom stract responsibilities. ernment public were maintained with which evaluating taught Nyquist. administrative en funds The classes tanglement, the Court must no examine the Tilton and Hunt classrooms taught three pur- by factors: The “character more neutral classes than gram be Lemon, could defendant in the teachers publicly subsidized program, by aid Obviously, federal being benefited things equal. all other the Tilton between and the difference things equal. What are not other all Maryland aid program and the aid impermissible in institution be would into itself program resolves particular thus by of a members staffed grants construction by between administratively a difference faith, controlled Clearly grants. non-eategorical in- religious body, to the and dedicated to consti- not rise may does faith, distinction particular well latter of a culcation institu- tutional dimensions. permissible in an autonomous be faculty by ba- hired on the staffed relationship tion between merit, academic where of academic sis this results from which and state church prevails, and where courses entangling. pro freedom taught program is not aid require- accordance with on gram Council is administered discipline. The academic of an ments Higher considera which has Education validly require that could Court expertise to the character as ble programs teaching at content of monitor the state of the State’s pre- secondary level to from its other derived education lapses into reli- inadvertent vent even performs responsibilities. The Council part pub- gious on the indoctrination screening process ensure two-step licly the Court Yet subsidized teachers. improperly used. are not funds monitoring conclude that such could requires step Council The first necessary at a would primarily award schools which eliminate freedom maintained its academic degrees. theological step re The second integrity. use quires to examine the that Council recipient institutions. therefore, made of funds is, not sufficient It Findings argue, does, of Fact. plaintiff aid See ideologically program neutral here is not of the nature of the Because respects it resem- because some necessity schools, for state there programs previously un- found aid ble investigate the conduct officials to in a lower school context. constitutional pro- particular of educational classes supra, McNair, In Hunt v. 746, 413 U.S. grams a school to determine whether at 2875 the Court said S.Ct. attempting to indoctrinate its students “ degree entanglement . . . guise education. under of secular arising inspection from facilities as monitoring governmental Such large varies in measure with use espe- program, context of an educational religion permeates extent to which religious grounds, raise would cially on institution.” po- grave questions. Concern over clearly government role was tential entangle- Supreme Court’s heart non-eategorieal characterized grants direct analysis primary and sec- ment ondary by prohibition restricted use See Committee cases. education Leaving purposes. for sectarian aside supra; Nyquist, Education v. for Public question efficacy pro of this Educa- for Public Levitt v. Committee tion, hibition, differences between *8 supra; supra; Lemon, v. Sloan program program and Tilton the are However, Kurtzman, supra. Lemon v. apparent more than real. In Tilton di Maryland program procedures in the the grants rect were for available the con and found to be effective have been virtually any type struction of of build udgmental. non-j subject ing, prohibitions to similar against posture usage. this Thus, procedural of ease sectarian Til- The the development prevented fol- of ton has the funds were used to construct li two low-up procedures braries, music, ensure a to drama and arts build religious ing, building language are converted to a science state funds and a However, laboratory. years. unlike the Every pro- uses later non -sectarian 20-year held The South Carolina restriction unconstitutional Educational Facil- Authority prohibition power Tilton, sectarian ities to the the issue absolute, buildings the revenue in the statute is bonds which school

use responsibili- and facilities could aware of its be constructed. If Council seems authority ties in matter. The Court is satis- financed construction a of non-entangling could, adequate, building, fol- school as in v. fied that low-up Hunt McNair, procedures developed. supra, convey building will be to Authority Findings of Fact. State and lease back See building for use. The lease and the in Tilton factors were found Three statute against both contained restrictions degree engangle- mitigated Authority sectarian use. The 1) program. federal aid ment given power regulations was to issue provided reli- found to be The aid giously was and to set fees for the use the facili- 2) recipient The neutral. ties. A decision of the South Carolina by an absence schools were characterized Supreme Authority’s Court limited the religious 3.) aid indoctrination. The fee-setting rule-making powers in the form of “one time construc- was the establishment of a fee schedule grant.” tion repayment which would ensure supra, neutrality noted As revenue scheme, bonds. the South Carolina dependent upon the essen the aid is agency the state administrative tial school. character Where acted as the institution’s land- aspects sepa secular of a school be acquired lord and substantial control sectarian, rated the case from the ability over the school’s to set its own defendants, aid these sectarian charges. Supreme fees Court regardless aid, aspect, of the form the found the South' Carolina be statute to necessarily religiously will neutral. be though constitutional even it established program aid is restricted school-governmental relationship which aspects the secular of the institutions. pervasive was far more intimate any relationship likely than result It has been found that indoc- from the statute now under considera- purpose trination is not a insti- McNair, supra. tion. See Hunt v. Although tutions. each has as a school secondary encouragement purpose the Supreme yet Court has to elabo- spiritual development of the stu- political entanglement on the rate test. dents, at none these schools does this However, primary the Court’s concern is encouragement go beyond providing op- society spared po- be the trauma of portunities experience. religious grounds litical strife on over religious programs at each school governmental programs benefits. Aid separable pro- from the secular secondary schools have grams, only and the latter bene- been found to contain the seeds of such of state ficiaries aid. example,-85% strife. As an stu- dents in New York who were bene- Although Maryland program does fited the statute held unconstitutional provide “one time construction Committee Education Public grants,” continuing nature of the Nyquist, supra, attending were church- program constitutionally is not fatal. schools, primarily affiliated of the Ro- required continuing Even Tilton man Catholic faith. The Court noted government perpetual involvement appropriations pros- that annual and the publicly with the schools to ensure that pect increasing public of an demand for buildings financed would never used potential political-re- funds created a purposes. However, for ligious conflict. See also Lemon v. analysis in Hunt v. supra. McNair, supra, revealing is far more *9 degree However, in Richardson, Tilton su- which is con- v. involvement stitutionally distinguished higher permissible. pra, the Court edu-

1291 secondary primary Accord- edu- use funds. tions on sectarian from cation poten- ingly, unconstitu- political “The version was effect. to cation as paid in the es- funds were inherent As substantial divisiveness tial for tional. schools, problems this sentially the five out in 1971 to local significantly less to order the secondary whether schools must decide Court illegally university recipient respect or to refund the schools with Maryland. constituency paid not local the State whose student funds dispersed.” widely but diverse governed by question is 688-689, at 2101. 192, Kurtzman, 411 U.S. v. S. Lemon factors that the same also noted Court (1973) (Lemon L.Ed.2d 151 Ct. mitigated entan- administrative which Supreme refused Court II), in which glement mitigated political entan- also moneys paid out refund to order the glement. unconstitutional held under the statute This Court is satisfied 403 U.S. in Lemon v. Maryland a sub statute does not create (1971) (Lem 2105, 29 L.Ed.2d 745 S.Ct. danger entanglement political stantial II, noted I). the Court on In Lemon Maryland though program calls even newly developed years recent in recip appropriations, and the annual principles law, both constitutional request likely to addi ient schools are non-constitutional, frequently not in Tilton, aid. As factors tional See effect. retroactive been accorded mitigated the en administrative Walker, Linkletter 381 U.S. tanglement mitigate polit also served to (1965). The 1731, 14 L.Ed.2d 601 S.Ct. entanglement. greater impor ical Of principle apply retroactive decision mitigating in reli tance the effect of balancing equitable be ly on an based gious program divisiveness is that the the state interests tween the gener designed to aid education prior acting party in reliance ally, colleges spe not church-affiliated set principle. the test The Court used cifically. eighteen Only five eli analyze Linkletter, supra, forth in gible which have received prior problem. to the A must look court funds are church-affiliated. Unlike purpose history rule, ef Nyquist situation, program does retrospec rule, and fect of the whether primarily particular not aid one reli or re operation further will tend to tive gious group large awith educational es operation. tard the rule’s Furthermore, tablishment. the defend refund order a refused to The Court substantially ant schools are autonomous plaintiff II. In Lemon I the in Lemon Nyquist institutions, whereas the schools payments after had suit months filed generally subject were to the con direct tactical and had refrained on were made trol of the affiliated church. Political seeking injunction. grounds from over conflict size of allocations entanglement primary ef- No further scope programs advancing religion was foreseen fect of likely not to involve the affiliated permitting defendants as a result of degree major politi churches to keep had relied to The schools funds. controversy. cal controversies planning on the funds their detriment which result from the are like Lem- programs, and the decision their ly to questions responsi involve of fiscal anticipated. on I not have been could bility requirements and educational realistically, that, The Court observed questions rather than people must conform and institutions identity schools. exists, presently as it it law as must, therefore, This Court conclude subsequent may be construed to be after seq., Md.Ann.Code art. et 77A 65 §§ equi- court A court decree decisions. as amended in is constitutional. ty principle seek should based on a new original version to work the harm consistent least passed 1971, provided Act, purposes restric- new rule. *10 case, given non-profit private suit nine In this was filed learning. higher Claiming that the of the statute of after enactment months statute, payments 77A, 65-70, were Art. Annotated months after five §§ already Maryland, have defendants of violates the Estab- The Code made. Amendment, spent re the funds allocated for lishment clause of First constitutionality plaintiffs injunction prevent of on liance seek an paying pursuant program. Lemon I and Tilton Both the state from aid of enactment were decided after the the Act and a declaration that all funds expenditure by recipient of the funds and the received institutions be statute anticipated. paid and could not have been over to the with interest. state supra. Governor, Comptrol- Fur Lemon v. Defendants are See Legislature Mary- thermore, corrected ler of and -Treasurer State original by pro land, the defects in Act all of whom constitute the Board hibiting funds, Mary- use of of of Public Works substantially eliminating thereby land, of five of 18 institutions danger recipients learning of use of unconstitutional funds. which are protected challenged constitutional values to aid under the statute.1 by the Establishment Clause would not originally coupled Plaintiffs their Es- despite be furthered refund the un tablishment claim with contention that constitutionality 1971 version of the statute violates the Free Exercise the Act. well, originally joined clause as and were organizations. in their suit two day Accordingly, it is this 16th of Oc- complaints organizations the two tober-, by the United States standing, were dismissed for lack Mary- District Court for the District the Free Exercise four claims in- land, ORDERED and DECLARED that: plaintiffs similarly dividual were dis- 77A, 1. Md.Ann.Code art. et §§ remaining taxpayers, missed. As seq. is on face constitutional its and as plaintiffs standing challenge have applied. question statute on Establishment injunction 2. Plaintiff’s motion for grounds. Jurisdiction is based on 28 U. application 77A, of Article §§65 S.C. 1331. A § court three district be, seq. et is, hereby and the same judges pursuant was convened to 28 U. nied. S.C. 2284. §§ 3. Plaintiff’s motion for refund challenged provides statute aid di program be, is, hereby and the same rectly institution, proportion to each denied. to the number of associate or bachelors degrees year awarded it in the fiscal preceding APPENDIX year next fiscal payment is made.2 The insti awarding only tution “cannot OF be one FACT FINDINGS theological degrees,” seminarian or Art. I 66(d), Mary 77A § Annotated Code of Maryland land, taxpayers Four money citizens and and state cannot be used for ' challenged constitutionality purposes,” 77A, 68A, “sectarian Art. § public law Maryland. state under which aid is Annotated Code of Maryland College 1. College, November, degrees Western based Dame, Mary’s 1970-71, Notre College, recipients Mount St. awarded in received Joseph’s College, aid, Saint and The some Associated 1.7 million dollars in the five de Loyola College City receiving approximately Professors $520,000. fendants Baltimore, (Loyola College). following year, Inc. Western 1.8 million dollars was recipients. sum, is affiliated with the Methodist awarded to 18 Of $603,000 placed Church. The other four defendants are af was an escrow account pending filiated with the Roman Catholic Church. defendants the ou tcome litigation. *11 agreed that his freedom to conduct II regard classes without to con- question de- is a factual The threshold impinged. had never siderations legis- purpose the of termination the defendant the 1940 Each subscribes to purpose for this stat- action. The lative Principles Statement of on Academic origin clearly It had its secular. ute is Freedom of the American Association Maryland analysis edu- of in an University Professors, of and each ob- Maryland by Council done the cation by viously abides it. Higher in this Included Education. description of analysis a statistical Plaintiffs have was demonstrated that savings money practice the to there is a at several the tremendous system private starting prayer. of col- fendants of from the classes state with pro- leges. practice aid There is continuation of the no such The at Western Maryland gram College, re- a later has been bolstered and the extent of prayer Council, widely among port which adminis- class varies the remaining responsibility Act, Loyola con- four under the defendants. trative At cerning private Mary’s, percentage Mt. uncertain nature of St. of college finances, prayer classes which even with the state with start is minis- College Joseph’s program. At aid to church-related cule. St. and Notre Dame, necessarily not those sectarian classes which do start with prayer Richardson, purpose. Tilton often do not utilize what would 678-679, prayer, be called 29 L.Ed.2d a traditional form of S.Ct. join purpose (1971). here is op- The state students or not at their clearly tion. not. purpose, Despite a secular a state law figures on the number instruc- violates the clause if Establishment begin prayer and the class with tors who religion. to effect advance do out the testimo- who not bear number pri- An aid need not have the ny that for each defendant of witnesses mary advancing religion effect of unless college policy encour- is no actual there permeated are so aging as a prayer in is treated It class. by religion that the secular side cannot free- academic facet of the instructor’s separated be from the sectarian. Moreover, es- plaintiffs failed dom. perva- here

defendants are not in that beginning with a class that tablish sively category. at- any way prayer diminishes showing which mosphere freedom intellectual only has there been Not fact, colleges. St. at In of class- marks the conduct that slants only College, defendant institutions, Joseph’s this liti- es at the defendant with majority start gation opposite of classes which has demonstrated depart- prayer, education potent evidence true. The most teach- group regard monitored testi- ment is the uncontroverted College program at ers education mony the fac- of numerous members of entering into ulty They re- no evidence feel no saw of each defendant. ap- program. It any by anyone, that ligious pressures, on their elements peripher- prayer is as pears in class presentation selection that or their classroom religious permeation subject of al Even and course materials.3 texts that facts faculty as are institution former member of Mt. St. garb, and wear clerical Mary’s plaintiffs testify to some instructors called symbols. disagreement aspects classrooms some his certain impairs the clear college, of these facts None administration examples. fifth point presented counter out with book Court has been produced Mary’s, defendant, testimo- Mt. St. defendants. lists the five four within ny was covering spec- textbooks instance, selection for courses each teacher. program, the individual arts book the discretion trum liberal of a fare, plaintiffs did lists seem standard convincing University evidence courses Pro- at American Association of taught “according each fessors, defendant are or to administration. requirements the academic either. intrinsic Plaintiffs showed no instance subject matter individual Though finding represents a the above concept professional teacher’s stand hiring generally, hiring faculty as to *12 Richardson, supra, ards.” Tilton 40 patterns religion theology depart- or U.S. 91 S.Ct. 2097. special present ments are a and a case finding unique problem. A that there is All defendants substantial ac- five religion theology depart- ademic freedom for individual staff their or instruc- chiefly religion tors to a ments leads conclusion that with clerics of the affiliat- permeate defendants, ed does not church. At two Western secular side of the college only religion plays part Mary’s, if all mem- no and Mt. St. hiring religion theology faculty faculty hiring bers decisions. of the or picture complex. presented problem is At Notre and clerics. Dame Mary’s, inquiry make-up departments Mt. no is St. is these made into Recognition applicant’s religion. an academic At obvious. of the Western Maryland there not inquiry, is freedom of these does no formal but instructors necessarily inquired, a former President lead to a conclusion that often fully religion theology appreciate applicant’s order to de- courses or background. partments A have sup- the five defendants similar rationale religious ports preference More- overtones of indoctrination. blanks on application Loyola. over, lists in form an examination of book In ad- meaningless. Loyola relatively dition, attempts these courses to recruit to its faculty year necessarily “religious” There ti- each will two members of a reli- gious tles, finding cannot make a order which a court once staffed a recently merged Loyola. texts indoctrinate and cer- into that certain At both inquire. Joseph’s tain College, Notre Dame and St. religious

members orders of women although Therefore, Court finds faculty salary, receive less than full that extent academic freedom at although budgetary considerations lead finding any each defendant belies a that to favor a member of an or- “pervasively sectarian,” them are der, hiring the main criteria for is aca- McNair, Hunt v. 93 S.Ct. quality. demic (1973), L.Ed.2d 923 Court characterize the manner in is unable to Despite variety hiring situa- theology courses are tions, things two are common to each de- Those conducted. courses notwithstand- Hiring fendant. decisions are effective- ing, extent of academic freedom at ly participatory. low-level and And at institution, coupled each the more no defendant was there such dominance intangible that an in- factors determine faculty by religious on the group one “atmosphere,” stitution’s discussed be- hiring escape bias would the atten- low, a lead to conclusion that each de- tion religious of members of other fendant atmo- groups. “characterized importantly, Even more sphere of academic freedom rather than faculty defendant, members of each religious indoctrination,” Tilton v. Rich- many testified, impress of whom ardson, supra, 403 U.S. professionals Court as who value aca- 2097, and therefore that the ef- place demic freedom and see no for reli- gious fect of aid to defendants bias liberal arts education. If religion. advance by any there were an effort defendant faculty to stack its with members of a particular Ill religious group, it could not escaped attention To determine whether the statute’s present faculty, they entangles would have the state with administration complained chapter to their necessary religion, local first it is deter- thorough analysis However, stu- indoctrination mine whether recruiting activity purpose dent admission criteria or a substantial each defendant the nature demonstrates recipients, then consider re- student bodies are chosen without rec- involved. of the aid gard religion. amply testimony in this ease ord and finding support at none of the a Religious exercises are held on the indoctrination fendants campus defendant, though of each none activity. purpose Plain- or substantial require of the defendants attendance at each of the demonstrate that tiffs did any religious exercise.5 Each defendant exception of defendants, St. Jo- with the chaplaincy program,6 and at each recently had, have, seph’s College, principal chaplain is defendant governing membership quotas on the clergyman of the affiliated church. The membership board based *13 Campus Ministry chaplain Loyola, at the Moreover, for each in a order. Religious and the Life at West- Council affiliation defendant the pro- Maryland, chaplain ern and the any college readily apparent to would grams remaining defendants, at the each prospective applicant took time who encourage spiritual development to serve catalogue. formal to Such read of the which finds students, the Court not relevant, are but are con- matters trolling secondary objective be one de- of each more reliable when indications Representatives fendant. de- each “atmosphere” of the institution candidly that their fendant admitted in- picture. evoke a different Hunt encouraging stitution is interested in spiritual supra. McNair, interests. admissions These exception Mary- With the of Western complement the Court’s conclusion land, none of the defendants receive aid aspects evi- drawn from other reports from or make institutional testimony. Though some dence and Maryland church. Western an- receives caught up seem in defendants more stipends nual from Methodist Church others, this none of idea than at these very amount, in modest makes encouragement go institutions does reports annual to the statistical nation- beyond providing opportunities or al There is ef- Methodist Church. no religious experience. occasions parlay fort the Church to the funds religion theology courses reports college. or into control over the in must each defendant be viewed though Similarly, the local head of the light objective. shared While Catholic Church an ex member officio offer ma- most of defendants do not Mary’s Trustees, of the Mt. St. Board of religion jors theology, main- or each entry no instance of of Church consider- religion theology vigorous de- or college tains ations into decisions was shown. partment. concern aspect No of the student conduct code admittedly departments, or either any at any defendant institution has re- ligious courses, thrust of the the obvious content.4 noted, Christianity. already As great majority of students at entirely partments are staffed almost each of the institutions affiliated with Catholic, clergy At of the affiliated church. Catholic Church are and with defendants, comprise largest single of these each of certain Methodists religious group Maryland. required.7 at courses are Western ambiguous Mary’s that a 4. at indicates An 6. Evidence adduced trial reference Mt. St. majority inspired arts Code was shown of American liberal to have been by religious chaplains. considerations. philosophy 7. Western combines Though ceremony the Baccalaureate at permits religion department, stu- in one religious, each defendant there seems philosophy rather than a dents select a compulsion be no real for students to attend. wholly department religion course. by Methodist ministers. staffed already degrees. seminary The Court has stated its view or Several institu- legally empowered that it genuinely nor disqualified tions neither have been man- ner, man- sug- able characterize the and there has serious theology religion gestion eligible ner in institutions found standard, It violate studied these schools. be that or that this deter- subjects approached entangles at each the as mination the Council reli- intriguing gion. complex and disci- intellectual plines. However, department staffed screening The second level is a de- mainly by clerics of the affiliated termination of whether state funds have geared church and ray toward a limited ar- improperly pro- been gram used. After theology possible or operation year’s was in awarded, and one congenial courses affords a furthering means of funds the statute was amended secondary objective prohibit the use of state funds for fostering religious experience. Only the purposes.” Chap. “sectarian clearest indication that Maryland, 68A, Laws A, Art. An- § theology department amalgam Maryland (1969 is an of notated Code of Re- placement Vol.). statutory people study That interested in the of the re- stric- implemented through ture is require- ligious phenomenon experience, rath- pres- ments verification experiencing religion, justi- er than receipt ident before that funds will not department support fies state *14 improperly expended, and verification light secondary objective. the of that year one thereafter that funds have not There has been no such indication for improperly used. The Council re- any However, of these defendants. the quires detail, through sufficient follow- findings chaplaincy as to the Court’s up usage description on the which ac- program theology religion and the or companies the second verification, to de- general impair courses do not find- the expenditure termine whether the was ing not a that indoctrination is (The pre-amendment for sectarian use. activity any purpose or substantial degrees funds awarded for conferred during year these defendants. the 1970-1971 academic subjected were never to this second level general finding mind, that in a With screening.) description of the administration of the usage in statute is order. The verification the normal accounting annual which each Primary responsibility administrative conducts obviate the need for state program vested in for the aid is post-audit analysis every case. Such Higher Education. Council analysis needed, is available when how- responsibility complemented That accomplish ever. State auditors could responsibilities for other the Council’s post-audit analysis, using accepted ac- Maryland, do which education counting techniques, day in one or less.8 challenged statute not derive from accounting This mechanical grant expenditures of state give profes- its but Council and do entangling. not It expertise with staff sional considerable programs by done now for federal recipient. regard quick to each these same non-j gmental. It is institutions. ud prescribes levels two The Act pre-eligibility

screening. first is a The administering body yet not primarily determination based developed systematic follow-up pro- go in- requirement not that aid Act’s grants cedure to insure that state made theological awarding primarily now are stitutions or converted to sectarian re- Recipients supporting this nominal minimize even could documents that account special designating auditing by place. degree one locating grant, all for the state account years ligious usage program íes some hence. The or otherwise enmesh itself places prohibi- potentially religious matters, limit on its Act no time Act however, usage, tion of sectarian Art. must be prevent administered so as to testimony any 77A, 68A, supporting disclosed that state funds from § the re- ligious administering body clearly theology under- programs studies or at usage forbidden, any stands that institution. purposes,” “Sectarian no matter when it occurs. the face 77A, as term 68A, is used-in Art. § prohibition interpreted Act’s and the adminis- must be encompassing understanding tering body’s it, study theology.9 follow-up Court cannot surmise procedures eventually routin- which are IV prove inadequate. ized will grant Each defendant received a state Except follow-up monitoring, degrees for this on November based on supervi- during there is no for additional need conferred year the academic recipients. sion the Council over 1970-1971. 77A, Art. 68A and § corresponding no monitoring Council has shown indication to proce- state unnecessarily recipi- enmesh itself dure were not added un- require ents’ does not til affairs. Act 1972. Three of the five defendants entangling, effectively commingled grant administrative there the 1971 entanglement present procedures, general college operating funds. speculate Loyola, by contrast, and no that the Coun- cause to used the state mon- responsibilities ey solely scholarships. cil will redefine its Mount St. problems Mary’s employed in the future. create restricted funds ac- counting, part and demonstrated that no there evidence indicates grant, except the interest it pass institutions, able to which are earned, purposes. was used for sectarian screening, state’s initial findings study theology may The consolidated be- fact *15 following herein strengthening are made the for conclusion come instrument during of the evidence submitted the the students’ life. Yet the argument following position trial and from all Council has taken the that state religion proposed findings, counsel on the funds be used for and the- findings ology are intended to form the courses. The Court’s conclusion sub- three-judge mitted to improper the court. this is these defend- already ants has noted. the Were BRYAN, ALBERT Senior Circuit V. yearly inquiry Council to similar make a Judge (dissenting): made, to that which the Court has the becoming entangled risk of the Council The first Amendment’s Establishment religion great. Religion with To avoid would be pressed vi here clause1 is requirement minutely monetary the state Maryland’s to the tiate aid recipient’s scrutinize each stud- private five institutions2 defendant included, study Maryland College 9. The Court does believe that not the Nor is Western religion theology necessarily longer is or sectari- I a church-affiliated for find it is no an, finding and makes no as to it whether is institution within the or church-related any inquiry scope sectarian at the defendant institu- be- now of the constitutional tions. in answer to this fore the Plaintiffs court. explicitly interrogatories dis- defendant’s applicable 1. The First is Amendment to the any is a school of claimed it contention through laws of each State the Fourteenth im- disclaimed other that character and also Pennsylvania, Amendment. Murdock aspects mediately the school’s related 105, 108, 870, U.S. 63 S.Ct. 87 L.Ed. 1292 just January four structure. On 1974— (1943). findings days in were filed before the fact budget provision previous 2. References herein defendant this case —the college was, Joseph’s are not intended to include St. Col- the Methodist Church lege, longer subsisting request, since it no discontinued insti- at the latter’s existed, mind, my tution. if it once future. Thus to learning clearly quite depict these colleges Annotated Code incidents under Disagreeing 77A, reluc- as church-affiliated or church- 65-70. Art. §§ Indeed, appears tantly majority, I find Act related. this conclusion seriously not to in truth be instances.does offend debated. in these provisions its the Constitution question II. The next whether money exposes funds, in that it State college-aid programs may pri- instant advancing religion, mat- for use mary effect affront the Act’s interdic- vigilance it. ter the to avoid money tion of the use of State sec- they purposes. legislation tarian I must be conceded think do. I. purpose, and so the first to be secular potential moneys It is use of the point is whether each for consideration which is the to be looked to determinant remaining defendant insti- of the three appraising constitutionality or church- a church-affiliated tutions is monetary church-affiliated hardly body. It deniable that related or institutions, read church-related as I category. are of this all of them Supreme Court’s enunciations. The According they findings, court’s legality moneys’ utilization is “vigorous or maintain a theolo- finally conclusively resolved “primary gy department” con- funds, actual use of the no matter how departments, either admit- cern of these tedly neutral, praiseworthy. bona fide or It by the thrust of the obvious opportunity is the reasonable for sectar Christianity”. Moreover, courses, misapplication gauge ian that is the departments staffed ex- almost validity particular of the statute’s wearing clusively their affil- with clerics beneficence. Lemon v. ministerial vestments. iated churches’ 617-619, findings court itself in its sees Also (1971). Otherwise, L.Ed.2d unin to characterize manner “unable escape tended circumvention would theology religion are conduct- unrelenting First Amendment’s veto. obliged to make “no find- ed” and feels ing present grants must, therefore, study of as to whether [the contingencies scrutinized for of this na any theology] ture. institutions”. defendant telling pay Of decisiveness here is the colleges’ religious affiliations are grants directly ment to the col immediately readily made at once leges purpose. These unmarked fea catalogues. Reli- known tures in Levitt v. Commit were decried *16 gious the faith exercises in of Education, 472, tee for Public 413 U.S. campuses, are church conducted 480, 2814, L.Ed.2d 736 93 S.Ct. 37 compulsory. is not but attendance (1973); for Public Educa Committee religious fig- there are classrooms some 774, 756, Nyquist, 93 tion v. 413 S. U.S. Quite pictures. and understand- ures ably (1973), 2955, and L.Ed.2d 948 Ct. large majority of students Kurtzman, supra, 602, Lemon v. 621, 403 U.S. institution in suit attends each 2105, 29 L.Ed.2d 745 91 S.Ct. religious persuasion. its Ev- of church (1971). There, potential misuse of program, ery college chaplaincy has a of a of the lack de- was existent because chaplain clergyman of the af- with the a plan application, as the of such finitive designation filiated church. worthy or of de- needs of liturgy instruction, profes- and example, improvements, While for sired just buildings hon- symbolisms books, are to be salaries, mentioned and like sors’ objectives. places, to me all times and all ored at relationship college schools, secondary of all such affiliation or deal or general church was terminated. principles and laid are therein out appositeness. their cases, post, Lemon 3. While and other cited Allen, Levitt, Nyguist, Everson and such as simply conclude, interpreted Presently this Act a blunder- case “must be discharge encompassing religion public study funds to a as of buss of or (cid:127) theology”, p. previously col- ex- or church-related 1297. As church-affiliated warning only single colleges lege. plained, a all of the defendant There merely religion theology in a have the forbidden use and an alive or generality: partment. phrase “sectarian of utmost At each of them certain Noteworthy, could purposes”. subjects mandatory. the funds courses compensation findings say to the While the fact be devoted theology that the two faculty faculty. teachings approached complex One chaplain. intriguing is the disciplines, in each and members intellectual it overlap example adds, “[hjowever, department one This but a staffed theological salaries. and mainly of academic Beyond peradventure, clerics of the affiliated church geared self- save array toward a limited college administrators possible theology restraint or courses attention, the congenial their faithful furthering and without grants affords a means of go though proscribed, well, secondary could objectives fostering the ligious re- at the areas experience”. finding into secular Another or menial could be acknowledges: These time. same building services, or professional “Recognition freedom academic maintenance, to both grounds related of these instructors does not neces- Pub- purposes. Levitt v. Committee sarily lead to a conclusion that courses Education, supra, 413 U.S. lic depart- theology in the (1973). 2814, 37 L.Ed.2d 93 S.Ct. ments at the have no five defendants comparable me no discloses Research (Accent overtones added.) indoctrination.” per- expenditure power of carte blanche upon missibly a State conferred Thus, obviously, departments insti- or church-related church-affiliated theology quickened sig- been into Surely, potential for abuse tutions. nificant sectarian area education. honesty through only here, and department inspirited With a so money avoided. deflection faculty composed with its staff non-prescription of infirmity of theological clerics, a result- exquisite- objects of the State the ly ing theology expansion of the school Richardson, in Tilton demonstrated logically seems at once at hand. With L.Ed.2d mounting potentiality, States (1971). There the United teaching might readily permeate quite grants authorized college. pervade Consequently, ex- facilities of academic construction moneys include the allocation of facility for sectarian used cept to be religious segment growing could reserved purposes. The Government of the Act mean that this effectuation built units to be 20-year interest respecting may equate it to a “law provi- enforcement so as to insure religion”. establishment limiting the held that The Court so. assaying Potentiality is also an *17 IV. opened facili- years prohibition 20 measuring iri whether the Act’s factor any purpose after ty for utilization colleges play ex creates “an within the years, and expiration of 20 government entanglement with cessive grant tolerated the aid reason Kurtzman, supra, religion”. Lemonv. for sectarian period for use post-20-year 2105, 2111, 602, 613-614, 91 S.Ct. U.S. trenchantly con- objects. decision This Commission, 745; L.Ed.2d Walz v. Tax public possible utilization firms that 1409, supra, 664, 674, 90 S.Ct. 397 U.S. ipso religion advancing property 697; v. L.Ed.2d Levitt Committee inhibited. facto 480-482, 472, Education, Public 413 U.S. (1973); purposes” 2814, III. The out- 37 L.Ed.2d 736 “sectarian 93 S.Ct. by findings Education Act, for Public lawed fact see also Committee 794, integrity Nyquist, of the latters’ the mon- 93 S.Ct. use of v. U.S. Instantly eys (1973). despite help and of such 37 L.Ed.2d 948 welcome providing possibility public real and manifold. educa- complete ab- tion. to the This is attributable objects any appointment sence Recovery payments already dis- V. bounty when Act’s extended of the my judg- bursed is not in State enti- church-affiliated or church-related recipi- equitably ment demandable. The context, assured that ties. In this to be good ents faith on the State relied public of the funds kindle or fire none funds, obliga- doubtlessly and assumed oversight theology, closer my anticipation tions In of them. appropriation ap- required of the opinion disposition reim- grants plication than secular Lemon bursement claim sustainable. unavoidably Thus schools. 93 S.Ct. v. frequent into and constant touch drawn (1973). 1463, 36 L.Ed.2d 151 college. of each the fiscal affairs with deferentially fine, In hold the view I controversy. easily generate This could injunction issue should prayed complaint, stopping future True, periodical reports' be ex- payments Act to under grants’ use, pected of the colleges. three defendant audit accountants in with verification analyses. But, tracking fear, the down I moneys require exceptional would against safeguards overflow theology purely into academic guardianship lead This could curricula. entanglement of the State

to excessive colleges. Filgo following Lee and wife Thelma R. FILGO summation from Lem- on, 621-622, 602, at 403 U.S. apt: at 2115 seems of America. UNITED STATES history government grants “The No. CA Civ. A. 3-6507-E. continuing subsidy' cash indicates Court, United States District programs that such al- almost Texas, N. D. ways varying accompanied Dallas Division. measures control and surveillance. grants government July 17, cash before us provide predicting

now no basis for comprehensive measures sur- will veillance controls follow. government’s post- particular power inspect and evaluate a audit rec-

church-related financial school’s expendi- and to

ords determine and which are sec-

tures intimate continu-

ular creates an relationship

ing between church added.) (Accent

state”.

It is but another risk of encroachment

on the Act’s ban. *18 posed potentialities

Because

throughout dissent, think I the Act adapted unconstitutional when colleges, despite

three now-defendant