which serves the area in which a program or project assisted under this title is located) who are enrolled in private nonprofit elementary and secondary schools, such agency, after consultation with the appropriate private school officials, shall provide for the benefit of such children in such schools secular, neutral, and nonideological services, materials, and equipment including the repair, minor remodeling, or construction of public school facilities as may be necessary for their provision (consistent with subsection (c) of this section), or, if such services, materials, and equipment are not feasible or necessary in one or more such private schools as determined by the local educational agency after consultation with the appropriate private school officials, shall provide such other arrangements as will assure equitable participation of such children in the purposes and benefits of this title.'

Subsection (b) of this law requires that expenditures for programs benefitting nonpublic school children be equal (consistent with the number of children to be served) to those for like programs provided for public school children. Subsection (c) mandates that funds and property provided for these programs be administered by a public agency. In addition, all persons employed to provide services to nonpublic school children under this law must be contracted from public agencies. The remaining sections provide for the standard bypass procedures which may be conducted by the U.S. Commissioner of Education.

Of further interest to nonpublic schools is a new program under the Special Projects Act [section 402(a)(1)] for the benefit of gifted and talented children, which requires State or local educational agencies to make proper assurances of the participation of eligible nonpublic school children in any project established. This act also contains the following programs available to all children, but which carry no specific mandate for nonpublic enrollment: Education for the Use of the Metric System of Measurement, Community Schools, and Women's Equity in Education (all of which are new programs in 1974 law); Consumer Education; and Arts in Education Programs.

Title VI. (ESEA)

In Title VI, part B [section 612(d)] of the Education of the Handicapped Act is amended to insure that:

... to the maximum extent appropriate, handicapped children, including children in public and private institutions or other care facilities, are educated with children who are not handicapped, and that special classes, separate schooling, or other removal of handicapped children from the regular education environment occurs only when the nature or severity of the handicap is such that education in regular classes with the use of

supplementary aids and services cannot be achieved satisfactorily....

A provision in the 1974 Amendments puts a new requirement for approval of grant applications under the Indian Education Act. Section 632, containing revisions of programs relating to Indian education, states that:

... such an application, to the extent consistent with the number of eligible children in the area to be served who are enrolled in private nonprofit elementary and secondary schools whose needs are of the type which the program is intended to meet, makes provision for the participation of such children on an equitable basis.

The Emergency School Aid Act, contained in the Education Amendments of 1972 (PL 92-318), provides Federal aid for educational programs for disadvantaged minority children in school districts which implement desegregation plans. These programs are designed to combat minority group isolation and assist in overcoming the harmful effects of such isolation upon school children. The 1974 Amendments (section 644, part D) contain a provision which requires that nonpublic school children who are eligible for services under this Act be included in local grant requests for assistance in establishing projects to improve the teaching of standard mathematics.

Title VII (ESEA)

Under Title VII of the 1974 Amendments, the Bilingual Education Act presents broadened provisions for improving the educational opportunities for children of limited English-speaking ability. The mandate for nonpublic school involvement is contained in part A, section 721(b)(2), and requires that an application for a grant to establish, operate, or improve a bilingual educational program may be approved only if:

... the Commissioner determines (i) that the program will use the most qualified available personnel and the best resources and will substantially increase the educational opportunities for children of limited Englishspeaking ability in the area to be served by the applicant, and (ii) that, to the extent consistent with the number of children enrolled in nonprofit, nonpublic schools in the area to be served whose educational needs are of the type which the program is intended to meet, provision has been made for participation of such children....

Within Title VII are also provisions for the National Reading Improvement Program, with the ambitious objective of achieving 99 percent functional literacy for persons 16 years of age, and 90 percent for those over 16, by the year 1980. To this end, the

Federal Government will provide financial assistance to encourage State and local educational agencies to undertake projects to strengthen reading instruction in elementary schools, to improve teaching skills, to explore ways to develop the most effective reading improvement methods, to establish programs at the preelementary school level, and to provide financial assistance to promote literacy among adults. Nonpublic school participation is mandated on an equitable basis of pupil enrollment, and representation on State and local advisory councils is also required.

Title VIII (ESEA)

Title VIII of ESEA contains miscellaneous provisions, with State responsibility for nonpublic school involvement mandated in the areas of school nutrition, health services, and dropout prevention projects. A new section concerning the next White House Conference on Education is presented here in part:

SEC. 804. (a) The President is authorized to call and conduct a White House Conference on Education in 1977 (hereafter in this section referred to as the "Conference") in order to stimulate a national assessment of the condition, needs, and goals of education and to obtain from a group of citizens broadly representative of all aspects of education, both public and nonpublic, a report of findings and recommendations with respect to such

assessment.

(b)(1) In carrying out the provisions of this section, participants in conferences and other activities at local, State, and Federal levels are authorized to consider all matters relevant to the purposes of the Conference set forth in subsection (a), but shall give special consideration to the following:

(J) The contribution of nonpublic primary and secondary education in providing alternate educational experiences for pupils and a variety of options for parents in guiding their children's development.

Other Legislation

In addition to the Elementary and Secondary Education Act of 1965 (with amendments), there are mandatory provisions for the inclusion of nonpublic school children in several other acts of Congress passed since 1958. Among those are: Vocational Education Act of 1963; Economic Opportunity Act of 1964 (with the objective of sustaining gains made in Head Start and similar programs); National School Lunch Act and Child Nutrition Act of 1966; Special Milk and School Breakfast Programs; Environmental Education Act of 1970; Drug Abuse Education Act of 1970; and Emergency School Aid Act of 1972. With the exception of the Environmental Education Act, which allows nonpublic schools to apply for grants directly, benefits and services are provided through and under the supervision of State or local educational agencies.

Conclusion

Although it has been the goal of Congressional endeavors over the past several years to initiate and establish far-reaching programs and services intended for all eligible children regardless of schools attended, the Federal Government has made no provisions for its own control of these programs and services. Indeed, the consolidation of Titles II, III, and V under Title IV of the 1974 Amendments to ESEA has been achieved for the purpose of strengthening State management of Federal assistance. It remains the task of the State and local educational agencies to implement and administer the benefits which have been made available, within the framework of each State's law.

Under the Tenth Amendment to the U.S. Constitution, "powers not delegated to the Federal Government and not prohibited to the States are reserved to the States or to the people." Moreover, the Constitution makes no mention of education, thus leaving to the States full responsibility for the establishment and regulation of schools. All State constitutions recognize the importance of education and provide for the financing of public education. A description of the constitutional provisions which serve the States in their supervision of nonpublic schools and corporations is presented in this chapter. These provisions are compiled under three classifications: Public Aid for Nonpublic Schools, Tax Exemptions for Nonpublic Schools, and Miscellaneous Constitutional Provisions.

Public Aid for Nonpublic Schools

One of the most sensitive areas in which the Federal and State governments must deal in structuring their laws involves the question of what constitutes direct public aid to nonpublic endeavors, particularly those which are church-related.

Two amendments to the U.S. Constitution serve as guidelines:

Amendment 1

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Amendment 14

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any persons of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Through the 14th Amendment the Supreme Court has interpreted the Establishment of Religion clause of the First Amendment as

extending to the States. The principle of the separation of church and state implicitly stated in the U.S. Constitution is explicitly present in most State constitutions. One of the earliest, commonly called the Blaine Amendment, was adopted by the State of New York in 1894 and clearly illustrates the ban on aid to schools under church control:

Art. 11. Sec. 3. Use of public property or money in aid of denominational schools prohibited; transportation of children authorized.-Neither the state nor any subdivision thereof shall use its property or credit or any public money, or authorize or permit either to be used, directly or indirectly, in aid or maintenance, other than for examination or inspection, of any school or institution of learning wholly or in part under the control or direction of any religious denomination, or in which any denominational tenet or doctrine is taught, but the legislature may provide for the transportation of children to and from any school or institution of learning. [Formerly sec. 4 of Art. 9. Renumbered and amended by Constitutional Convention of 1938 and approved by vote of the people November 8, 1938. Formerly sec. 4, renumbered sec. 3 without change by amendment approved by vote of the people November 6, 1962; former sec. 4 repealed by same amendment.] 1

A controversy has developed in recent years ove: State constitutional provisions which prohibit aid for sectarian purposes. Certain Federal laws have been passed providing for State educational programs which require the participation of nonpublic school children, including those in parochial schools. The States then have been asked not necessarily to change their laws, but to provide for the inclusion of nonpublic school children in certain federally funded programs if the State wishes to operate such a program.

Two States have amended their constitutions explicitly to permit nonpublic schools to receive Federal aid. In Montana, the Constitutional Convention of 1972 added a new subsection to section 6 (Aid Prohibited to Sectarian Schools) of article 10 (Education) which says

that "(2) this section shall not apply to funds from federal sources provided to the State for the express purpose of distribution to nonpublic education." Also in 1972, the constitution of Nebraska, article 7 (Education), was amended to provide “... that the State may receive money from the federal government and distribute it in accordance with the terms of any such federal grants, but no public funds of the State, any political subdivision, or any public corporation may be added thereto."

Thirteen States have constitutional provisions specifically authorizing public aid to nonpublic schools and/or private institutions or individuals for educational or charitable purposes under certain conditions. These States are Alabama, Georgia, Iowa, Louisiana, Maine, Massachusetts, Mississippi, Nebraska, Nevada, New York, Pennsylvania, Rhode Island, and Virginia.

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In Alabama the legislature may be law provide for:

... the grant or loan of public funds and the lease, sale or donation of real or personal property to or for the benefit of citizens of the State for educational purposes except to nonprofit charitable or eleemosynary corporations or associations organized under the laws of the State.

The Georgia constitution permits the General Assembly to "... by law provide for grants of State, county or municipal funds to citizens of the State for educational purposes, in discharge of all obligation of the State to provide adequate education for its citizens." In addition, political subdivisions in Georgia are allowed to provide public aid to any corporation, company, association, institution, or individual for "purely charitable purposes."

Maine has a provision in its constitution requiring the legislature "... to encourage and suitably endow, from time to time, as the circumstances of the people may authorize, all academies, colleges and seminaries of learning within the State....

The constitutional provision in Massachusetts which allows public aid to private institutions for charitable purposes reads as follows:

Nothing herein contained shall be construed to prevent the commonwealth, or any political division thereof, from paying to privately controlled hospitals, infirmaries, or institutions for the deaf, dumb or blind not more than the ordinary and reasonable compensation for care or support actually rendered or furnished by such hospitals, infirmaries or institutions to such persons as may be in whole or in part unable to support or care for themselves.

The constitution of Mississippi allows that "the legislature may appropriate state funds and authorize counties, municipalities and other governmental subdivisions and districts to appropriate funds, including poll tax and sixteenth section funds, to aid educable children of this state to secure an education . . . ." Moreover, aid may

be granted for nonsectarian purposes upon the approval of two-thirds of the members of each branch of the legislature.

In Nebraska the State may "guarantee or make long-term, low-interest loans to Nebraska residents seeking adult or post high school education at any public or private institution in this state. Qualifications for and the replacement of such loans shall be as prescribed by the Legislature."

In Nevada a constitutional provision states that: "The State shall not donate or loan money, or its credit, subscribe to or be, interested in the Stock of any company, association, or corporation, except corporations formed for educational or charitable purposes."

In New York, a vote of two-thirds of both branches of the legislature is required to appropriate "public moneys or property for local or private purposes." In addition, the State may appropriate money or lend its credit to "... any fund or property now held or which may hereafter be held by the State for educational, mental health or mental retardation purposes."

In Iowa, Pennsylvania, and Rhode Island the legislature may grant public aid for private educational or charitable purposes with the assent of two-thirds of each house of the General Assembly. Finally, the constitution of Virginia provides that:

The General Assembly may, and the governing bodies of the several counties, cities and towns may, subject to such limitations as may be imposed by the General Assembly, appropriate funds for educational purposes which may be expended in furtherance of elementary, secondary, collegiate or graduate education of Virginia students in public and nonsectarian private schools and institutions of learning, in addition to those owned or exclusively controlled by the State or any such county, city, or town.

Under this same law, "counties, cities, towns and districts may make appropriations to nonsectarian schools of manual, industrial or technical training and also to any school or institution of learning owned or exclusively controlled by such county, city, town or school district." In addition, the Virginia General Assembly may "make appropriations to nonsectarian institutions for the reform of youthful criminals and may also authorize counties, cities, or towns to make such such appropriations to any charitable institution ΟΙ association."

There are five States-Delaware, Michigan, New Jersey, New York, and Wisconsin-that may provide for transportation of nonpublic school children under the mandate of a constitutional provision. The constitution of Louisiana includes a provision for approval on request of private schools by the State Board of Elementary and Secondary Education, and another for free textbooks and other instructional materials to all children of the State at the elementary and secondary levels.