¹ See: Weber, Paul J. and Gilbert, Dennis A., Private Churches and Public Money (Westport, Conn.: Greenwood Press, 1981).Google Scholar

² An excellent study of the development of the Court's use of the Jeffersonian interpretation of the metaphor, and of the legislative history of the First Amendment is found in the first two chapters of Howe, Mark DeWolfe's The Garden and the Wilderness (Chicago: University of Chicago Press, 1965).Google Scholar

³ A comprehensive and extremely useful work which details the provisions of every state constitution and its appropriate case law regarding higher education is Howard, A. E. Dick's State Aid to Private Higher Education (Charlottesville, VA.: The Michie Company, 1977).Google Scholar

⁴ See: Pfeffer, Leo, God, Caesar, and the Constitution (Boston: Beacon Press, 1975)Google Scholar, which details some developments in this area; and Drinan, Robert S. J., Religion, the Courts, and Public Policy (New York:McGraw-Hill, 1963).Google Scholar

⁵ The history of religion in the United States is comprehensively handled by Stokes, Anson Phelps, Church and State in the United States (New York: Harper and Row, 1950)Google Scholar; and Pfeffer, Leo, Church, State, and the Public Policy, (Boston: Beacon Press, 1953)Google Scholar; Drinan, 's Religion, the Courts, and Public PolicyGoogle Scholar lends an historical perspective to current church-state debate, and Howe, 's Garden and the WildernessGoogle Scholar discusses the issue of religion and government from the perspective of constitutional history.

⁶ Board of Education v. Allen, 392 U.S. 236, 1968.Google Scholar

⁷ Walz v. Tax Commission, 397 U.S. 664, 1970, at 676–89Google Scholar; Justice White's dissent in Lemon v. Kurtzman 403 U.S. 602 at 66Google Scholar, criticizes the subjective adjective “excessive” to describe entanglement. Paul Kauper sees “entanglement” as implicit in Everson's separation doctrine in his “Everson v. Board of Education: A Product of the Judicial Will,” Arizona Law Review, Vol. 15, 1973, p. 325.Google Scholar The Walz case is in a “separate category,” because of its “tolerance of government aid to religious institutions,” says Brinkmeyer, Scott, in “Comments: Aid to Parochial Schools; A Lid on the Public Coffer,” St. Louis University Law Journal, 19, (1974), 68.Google Scholar

⁸ Everson v. Board of Education, 330 U.S. 1, 1947Google Scholar; Kurland, Philip, Religion and the Law (Chicago: Aldine Publishing Co., 1962)Google Scholar; Drinan, Robert, Religion, the Courts, and Public Policy, chap. 1.Google Scholar

⁹ In Roemer v. Board of Education, 330 U.S. 736, 1976, at 753–755Google Scholar, the Court delineates some of the subtleties of these distinctions; see also Committee for Public Education v. Regan, 100 S. Ct. 840, 1980Google Scholar

¹⁰ See also: Levitt v. Committee for Public Education, 413 U.S. 472 (1973)Google Scholar; Board of Education v. Allen, 392 U.S. 236 (1968)Google Scholar; New York Laws 1974, Ch. 507; Committee for Public Education v. Nyquist, 413 U.S. 756 (1973).Google Scholar

¹¹ See Tilton v. Richardson, 403 U.S. 672 (1971), at 686 and 689Google Scholar; and Hunt v. McNair, 413 U.S. 734 (1973), at 747.Google Scholar

¹² Tilton at 690Google Scholar; Hunt at 746Google Scholar; Roemer at 765.Google Scholar

¹³ Roemer at 773.Google Scholar

¹⁴ Roemer at 776.Google Scholar

¹⁵ See: Oaks, Dallin, ed., The Wall between Church and State (Chicago: University of Chicago Press, 1963)Google Scholar; Howe, , Garden and the WildernessGoogle Scholar; Drinan, , Religion and Public PolicyGoogle Scholar, especially chap. 6; and Mechling, Jay, ed., Church, State, and Public Policy (Washington: American Enterprise Institute, 1978)Google Scholar, the report on a conference on the “New Shape of the Church-State Debate and Its Impact on Public Policies and Values.” In their excellent study on federal aid to religiously affiliated higher education, Gaffney, Edward and Moots, Philip have probed the various dimension and impacts of federal aid on church-related institutions, in Government and Campus (Notre Dame, Ind.: University of Notre Dame Press, 1982).Google Scholar

¹⁶ Howe, , Garden and the WildernessGoogle Scholar, which deals extensively with Williams's metaphor.

¹⁷ Tilton at 688Google Scholar; Roemer at 766.Google Scholar

¹⁸ Tilton at 690.Google Scholar

¹⁹ New York State Constitution, Art. XI, Sec. 3, added to the 1894 Constitution. The term: Blaine Amendment was something of a misnomer; see: Howard, A. E. Dick, pp. 27 and 614.Google ScholarHowe, in Garden and the WildernessGoogle Scholar has an interesting commentary on the impact of the Know-Nothing movement on church establishment theory, pp. 46–49.

²⁰ Howard, , State Aid, p. 616Google Scholar; the League of Women Voters of New York State did quite an excellent study of the constitutional debate, Seeds of Failure: a Political Review of New York State's 1967 Constitutional Convention (Washington Depot, Conn.: Shiver Mountain Press, 1973).Google Scholar

²¹ Levitt v. Committee for Education and Religious Liberty, 413 U.S. 472 (1973)Google Scholar; Board of Education v. Allen, 392 U.S. 236 (1968)Google Scholar; Committee for Public Education v. Nyquist, 413 U.S. 756 (1973).Google Scholar

²² The issue of aid to nonpublic primary and secondary schools in New York is a persistent one; in Committee for Public Education and Religious Liberty v. Regan, 100 S. Ct. 840 (1980)Google Scholar, the Supreme Court permitted a marginal expansion of assistance in the form of reimbursement of costs of state-mandated testing directly to private schools, the first expansion of aid since the textbook loan cases in 1968.

²³ Kauper, Paul G., Religion and the Constitution (Kingsport, Tenn: Louisiana State University Press, 1964)Google Scholar, chap 3, “The First Amendment: Dilemma of Interpretation.”

²⁴ Seeds of Failure, p. 43–44Google Scholar; Lemon v. Kurtzman 403 U.S. 602 (1971).Google Scholar

²⁵ Members of the Select Committee were McGeorge Bundy of the Ford Foundation (Chairman), James Bryant Conant, John Hannah (President of Michigan State University) and Rev. Theodore M. Hesburgh (President of the University of Notre Dame), and Abram Sachar (President of Brandeis Univsity).

²⁶ Report of the Select Committee on the Future of Private and Independent Higher Education in New York State, New York State and Private Higher Education, State Education Department of New York, Albany, NY, 01 1968, p. 55.Google Scholar (hereinafter referred to as the Bundy Report.)

²⁷ Bundy Report, p. 51.Google Scholar

²⁸ Bundy Report, p. 51.Google Scholar

²⁹ Connery, Robert H. and Benjamin, Gerlad, Rockefeller of New York: Executive Power in the State House (Ithaca: Cornell University Press, 1979), p. 320.Google Scholar

A comprehensive study of the changes in the organization and operation of Fordham University was made by Gellhorn, Walter and Greenawalt, R. Kent, The Sectarian College and the Public Purse: Fordham—a Case Study (Dobbs Ferry, N.Y.: Oceana, 1970).Google Scholar In an interview with Rev. James Finley, S.J., the President of Fordham, 26 January 1981, he recalls this period of change as beginning under his predecessor prior to the development of Bundy Aid, and growing out of a mixture of student unrest, ecumenism resulting from the Second Vatican Council and reexamination of the constitutional issues involved.

³⁰ New York Times, 31 03 1968.Google Scholar

³¹ Section 6401 of the New York State Education Law (1968).Google Scholar

³² Connery, and Benjamin, , Rockefeller, p. 323.Google Scholar

³³ New York Laws of 1968, chap. 677, Education Law Sec. 6401Google Scholar; O'Keefe, Edward, “The Influence of New York State Aid to Private Colleges and Universities on the Process of Change Taking Place in Catholic Institutions of Higher Learning,” (Ph.D Dissertation, State University of New York at Buffalo, 1974)Google Scholar; Moots, Philip R. and Gaffney, Edward, Church and Campus: (Notre Dame, Ind. University of Notre Dame Press, 1979), chap. 3.Google Scholar

³⁴ Horace Mann League v. Board of Public Works, 242 Md. 645, 220A. 2d 51, appeal dismissed and cert, denied, 385 U.S. 97 (1966).Google Scholar

³⁵ Wilson, Charles, “Tilton v. Richardson: The Search for Sectarianism in Education,” Washington: Association of American Colleges, 1971, p. 43Google Scholar; Howard, State Aid, pp. 390–93Google Scholar; Interview with Dr. Norman Mercer, former Coordinator of State Aid to Non-Public Colleges, New York State Education Department, 14 01 1981.Google Scholar

The Horace Mann decision, evaluating state aid to church-related colleges, isolated six major factors as relevant in determining whether a college is “legally sectarian:” (1) the stated purpose of the college; (2) the religious affiliation of college personnel; (3) the college's relationship with religious organizations and groups; (4) the place of religion in the college's program; (5) the result or “outcome” of the college program; and (6) the work and image of the college in the community.

³⁶ Horace Mann League v. Board of Public Works, 242 Md. 645, 220 A. 2d 51, appeal dismissed and cert, denied, 385 U.S. 97 (1966).Google Scholar The evaluation of the institution has 14 separate criteria suggested by the Maryland court. McGowan v. Maryland 366 U.S. 420 (1961)Google Scholar had been mentioned by the Select Committee as a possible judicial guide to aid the formulation of constitutional standards, but this was not incorporated into the aid formula; see the Bundy Report p. 50.Google Scholar

³⁷ Bundy Report, pp. 154–55Google Scholar; Gellhorn, and Greenawalt, , The Sectarian College, pp. 35–6Google Scholar; Memorandum on “Constitutional Eligibility of Certain Non-Public Institutions of Higher Education for State Aid Pursuant to Chap. 677 of the Laws of 1968, August 5, 1968,” circulated to Chief Executive Officers, attached to a memorandum of 12 August 1968, from Commissioner of Education, James E. Allen.

³⁸ Entitled: “Applicants Statements for Eligibility for State Aid under Section 6401 of the Education Law.”

³⁹ See: McGowan v. Maryland, 366 U.S. 366 US 420 (1961)Google Scholar; this test was suggested in the Bundy Report, p. 50Google Scholar, quoting Justice Frankfurter, that if “…a challenged statute is supportable as implementing other substantial interests than the promotion of belief, the guarantee prohibiting religious ‘establishment’ is satisfied. …”

⁴⁰ Memorandum to Chief Executive Officers of Institutions of Higher Education from Allen, James E. Jr, Commissioner of Education on “Constitutional Eligibility of Certain Non-Public Institutions Higher Education for State Aid Pursuant to Chapter 677 of the Laws of 1968,” 08 12, 1968Google Scholar. Copies of these provisions are entitled “Applicants Statements for Eligibility for State Aid under Section 6401 of the Education Law.” These questions were formulated by the Counsel for the State Department of Education, Robert Stone: (Interview with Stone, Robert, Counsel for the State Department of Education, 23 02 1981.)Google Scholar See also: Gellhorn, and Greenawalt, , Sectarian College, pp. 177–81.Google Scholar

⁴¹ Interview with Norman Mercer, former Coordinator of State Aid to Non-Public Colleges, New York State Education Department 14 January 1981; interview with Theodora Thayer, Associate Coordinator, Office of Post-Secondary Research, Information Systems and Institutional Aid, New York State Department of Education, 31 October 1980.

⁴² “Reporting Requirements for Eligibility for State Aid,” Education Law Sections 207, 6401, specify that portions of the annual report be submitted to the Bureau of Statistical Services or to the Associate Coordinator, Office of Post-secondary Research.

Every recipient institution must submit an annual report on its expenditures of Bundy funds. Although these funds are prohibited from underwriting religious activities, there is naturally no adequate method of determining whether Bundy funds have in fact released other revenue for religious purposes.

⁴³ Interview with Lester Ingalls, Executive Vice-President and Secretary of the Association of Colleges and Universities at the State of New York (ACUSNY), 27 January 1981.

⁴⁴ Interview with Mercer, Norman, 14 01 1981.Google Scholar

⁴⁵ Interview with Stone, Robert, Counsel New York State Dept. of Education, 23 02, 1981.Google Scholar

⁴⁶ See: the 4th point raised in Tilton at 689Google Scholar; Justice White's concurrence in Roemer at 769 and 770Google Scholar; Note, Fordham Law Review, 45 (1977), p. 992Google Scholar; also, Brennan's dissent from Tilton in his opinion on Lemon v. Kurtzman, 403 U.S. at 661–62.Google Scholar

⁴⁷ Interview with Ingalls, Lester, 27 01 1981Google Scholar; Interview with SrKelly, Dorothy, President of the College of New Rochelle, 26 01 1981.Google Scholar

⁴⁸ Interview with Mercer, Norman, 14 01 1981Google Scholar; Interview with Stone, Robert 23 02 1981.Google Scholar

⁴⁹ Interview with Stone, Robert, 23 02 1918Google Scholar; Interview with Mercer, Norman, 14 01 1981.Google Scholar

⁵⁰ Interview with Stone, Robert, 23 02 1981Google Scholar; Interview with Mercer, Norman 14 01 1981.Google Scholar

⁵¹ Interview with Stone, Robert, 23 02 1981Google Scholar; Interview with Mercer, Norman, 14 01 1981.Google Scholar

⁵² Interview with Thayer, Theodora, 31 10 1980.Google Scholar

⁵³ Interview with Stone, Robert, 23 02 1981Google Scholar; the State Education at this time undoubtedly sensitive to Court standards in the area of First Amendment protection from nonestablishment of religion, because they were embroiled in a series of cases involving primary-secondary nonpublic school state aid. Walz v. Tax Commission 397 U.S. 664 (1970)Google Scholar had begun as a New York case dealing with tax exemption for religious property, but came to be incorporated in “parochaid” cases because of its provision prohibiting “entanglement” between the state and the aid recipient; other cases working their way to the U.S. Supreme Court at this time included Committee for Public Education and Religious Liberty (PEARL) v. Nyquist 413 U.S. 756 (1973)Google Scholar and Levitt v. PEARL 413 U.S. 472 (1973).Google Scholar

⁵⁴ New York Times, 6 01 1970, p. 29.Google Scholar

⁵⁵ Brief History of the Pursuit of “Bundy Aid” by The College of New Rochelle, 18 10 1972Google Scholar; this was done at Special Term in a proceeding under Article 78 of the Civil Practice Law and Rules, cross appeals entered 4 September 1970; see note #1 to College of New Rochelle v. Nyquist 37 A.D. 2d 461 (1971).Google Scholar

⁵⁶ Brief History of “Bundy Aid”, College of New Rochelle; interview with Sister Kelly, Dorothy, 01 26, 1981.Google Scholar

⁵⁷ Manion, Maureen, “The Impact of State Aid Upon Church-Related Higher Education in the State of New York: the First Amendment Issues” (Ph.D. Dissertation, State University of New York at Albany, 1982)Google Scholar. The study included state aid recipients Fordham University, Canisius College, Iona College, the College of New Rochelle, Siena College, St. Bonaventure University, Wagner College, and Yeshiva University. Nonrecipients included in the study were Houghton College, Concordia College, Niagara University, The King's College, and until 1981, LeMoyne College.

⁵⁸ This group included such Catholic institutions as Fordham University, Canisius College, College of New Rochelle, Iona College, Siena College, and St. Bonaventure University, Protestant Wagner College, and Jewish Yeshiva University.

⁵⁹ This group included Catholic Niagara University and LeMoyne College, and Protestant King's College.

⁶⁰ This group included Concordia College (Lutheran) and Houghton College (Methodist).

⁶¹ Interview with Ingalls, Lester, 27 01 1981Google Scholar; Interview with Finlay, James S.J., President of Fordham, 26 01 1981.Google Scholar

⁶² Canisius v. Nyquist 29 NY 2d 928 at 929 (1972).Google Scholar

The court's memorandum stated tersely: “Order reversed, without costs and the petition dismissed in the following memorandum: The Commissioner of Education assuming that Section 6401 of the Education Law does not offend against Constitutional limitations—a question on which we do not pass—denied petitioner's application. In our view, the Commissioner had reasonable basis for his determination.”

⁶³ College of New Rochelle v. Nyquist, 37 AD 2d 461 (1971).Google Scholar

⁶⁴ Canisius and Iona were visited by Reverend Jerald Brauer of the University of Chicago, and the College of New Rochelle was visited by Dr. Arthur McKay of the University of Rochester.

⁶⁵ Interview with O'Halloran, William S.J., President of LeMoyne College, 20 01 1981.Google Scholar

⁶⁶ Interview with Hines, Hugh, OFM, 19 01 1981Google Scholar; see also the Ph.D dissertations by O'Keefe, Edward M., “The Influence of New York State Aid to Private Colleges”Google Scholar; and Maloney, Edward F. S.J., “A Study in the Religious Orientation of Catholic Colleges and Universities in New York State from 1962–1972” (New York University, 1974).Google Scholar

⁶⁷ The SED specified that the Tilton decision of June 1971 was not a contributing factor to this delay, according to SED Counsel Robert Stone, interviewed 23 February 1981; Interview with Mercer, Norman, 14 01 1981.Google Scholar

⁶⁸ Interview with Doyle, Mathias, OFM, President of St. Bonaventure, 23 03 1981Google Scholar; “Report on St. Bonaventure University,” by Brauer, Jerald C. to New York State Education Department 31 10 1975, p. 6.Google Scholar

⁶⁹ Interview with Doyle, Mathias, OFM, 23 03 1981.Google Scholar

⁷⁰ “Niagara University and State Aid,” memorandum by President Kenneth Slattery, CM., 6 08 1973, p. 8.Google Scholar

⁷¹ Slattery, Kenneth, CM., “Catholic with a Capital C,” National Review, 30 (1978), 1021.Google Scholar

⁷² New York Times, 26 07 1969Google Scholar; see also Gellhorn, and Greenawalt, , Sectarian College, pp. 123–26.Google Scholar

⁷³ “Memorandum to Ewald Nyquist, Commissioner of Education from Arthur O. Davidson, President, Wagner College; Subject:Constitutional Eligibility of Certain Non-Public Institutions of Higher Education for State Aid Pursuant to Chapter 677 of the Laws of 1968,” p. 1.

⁷⁴ “Report on Wagner College,” by Brauer, Jerald C., 6 10 1971, p. 2.Google Scholar

⁷⁵ The Illinois Constitution (Article x, Section 3) does forbid any appropriation of public funds for sectarian purposes, but in the 1973 case of Board of Education v. Bakalis, 54 Ill 2d 488, 200 N.E. 2d 737 (1973)Google Scholar, the Illinois Supreme Court decided that the language yielded the same substantive results as the First Amendment and that any program which was constitutional under this state provision; see Howard, , State Aid Education, pp. 252–56, and 273Google Scholar; North Carolina has no constitutional prohibition to funding private higher education if it serves a “public purpose.” Defining “Public Purpose” in a definitive manner has yet to be accomplished by the North Carolina courts; see Howard, , State Aid, pp. 645–48.Google Scholar

⁷⁶ “The King's College Bulletin, 1968–70”, p. 9.Google Scholar

⁷⁷ Interview with DrChamberlain, Daniel, President of Houghton College, 23 01 1981.Google Scholar

⁷⁸ Crothus, William C., President of Roberts Wesleyan College, 22 02 1985.dGoogle Scholar

⁷⁹ Interviews with Nyquist, Ewald, former New York Commissioner of Education, 30 04 1981Google Scholar; Interview with Mercer, Norman, 14 01 1981.Google Scholar

⁸⁰ Interviews with Mercer, Norman, 14 01 1981Google Scholar; Stone, Robert, 23 02 1981Google Scholar, and Nyquist, Ewald, 3 04 1981Google Scholar; and with Ingalls, Lester, 27 01 1981Google Scholar, and Haines, John, Consultant for ACUSNY, 23 02 1981.Google Scholar

⁸¹ “Report on Yeshiva University” by Brauer, Jerald C., 27 09 1971.Google Scholar

⁸² Interview with Dr. Morris Silverman, Registrar of Yeshiva University, 23 March 1981. Dr. Silverman was on the Bundy eligibility committee in 1969–72.

⁸³ This question of defining a “sponsoring religious body” has been discussed in chapter 1, “Legal and Structural Relationships” in Moots, and Gaffney, 's Church and Campus.Google Scholar

⁸⁴ Interview with Ingalls, Lester, 27 01 1981.Google Scholar

⁸⁵ See: Gellhorn, and Greenawalt, , Sectarian CollegeGoogle Scholar; Parsonage, Robert, ed., Church-Related Higher Education (Valley Forge, Pa.: Judson Press, 1978)Google Scholar; Mullaney, Mary, “Religious Discrimination and Higher Education: a Continuing Dilemma,” Notre Dame Lawyer, 52, (1976), 152Google Scholar; and Moots, and Gaffhey, , Church and Campus.Google Scholar

⁸⁶ Bundy Report, p. 63Google Scholar; Parsonage, , Higher EducationGoogle Scholar, chap. 2, “Categories of Church-Relatedness,” pp. 29–42.Google Scholar

⁸⁷ This was particularly evident in comparisons between the experiences of Wagner College, which was formerly Lutheran, and Concordia College, which chose not to apply for aid and retain its Lutheran affiliation. A comparison of the Jesuit institutions Fordham, Canisius, and LeMoyne also illustrates the point.

⁸⁸ Interview with Nyquist, Ewald, 3 04 1981.Google Scholar

⁸⁹ This potential trade-off of “religion for dollars” is one of the major points discussed in Smith, Michael R.'s “Emerging Consequences of Financing Private Colleges with Public Money,” Valparaiso University Law Review, 9 (1975), 578–579.Google Scholar

⁹⁰ Mueller v. Allen, 103 S. Ct. 3062 (1983)Google Scholar; this has been examined at length in a number of sources, but a brief and pithy critique is Hygare, Thomas, “Supreme Court Permits State Tax Deductions for Non-public Schools”, Phi Delta Kappan, 09 1983, pp. 63–64.Google Scholar

This “new temper” was not in evidence in the June 1985 decisions of the Court which invalidated New York City and Grand Rapids, Michigan plans which sent public school teachers into parochial classrooms, for special education programs.

⁹¹ This topic has been debated exhaustively. A good summary of its major points from the separationist perspective is in Pfeffer, Leo's, God, Caesar and the ConstitutionGoogle Scholar. Drinan, Robert's Religion, the Courts and Public PolicyGoogle Scholar, presents the more accommodationist position, as does Giannella, Donald A., in “Religious Liberty, Nonestablishment, and Doctrinal Development,” in the Harvard Law Review, Vol. 81, 1968CrossRefGoogle Scholar. A somewhat more up-to-date comment on the problem may be found in Brinkmeyer, Scott's “Aid to Parochial Schools; a Lid on the Public Coffer,” St. Louis University Law Journal, 19 (1974), 56–77.Google Scholar

⁹² Howe, , Garden and the Wilderness, p. 6.Google Scholar