MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
A three-judge District Court sustained the validity of a Mississippi statutory program under which textbooks are purchased by the State and lent to students in both public and private schools, without reference to whether any participating private school has racially discriminatory policies. 340 F.Supp. 1003 (ND Miss. 1972). We noted probable jurisdiction, 409 U.S. 839.
Appellants, who are parents of four schoolchildren in Tunica County, Mississippi, filed a class action on behalf of students throughout Mississippi to enjoin in part the enforcement of the Mississippi textbook lending program. The complaint alleged that certain of the private schools excluded students on the basis of race and that, by supplying textbooks to students attending such private schools, appellees, acting for the State, have provided direct state aid to racially segregated education. It was also alleged that the textbook aid program thereby impeded the process of fully desegregating public schools, in violation of appellants' constitutional rights.
Private schools in Mississippi have experienced a marked growth in recent years. As recently as the 1963-1964 school year, there were only 17 private schools other than Catholic schools; the total enrollment was 2,362 students. In these nonpublic schools 916 students were Negro, and 192 of these were enrolled in special schools for retarded, orphaned, or abandoned children.
This case does not raise any question as to the right of citizens to maintain private schools with admission limited to students of particular national origins, race, or religion or of the authority of a State to allow such
Administration of the textbook program is vested in the Mississippi Textbook Purchasing Board, whose members include the Governor, the State Superintendent of Education, and three experienced educators appointed by the Governor for four-year terms. Id., §§ 6634, 6641. The Board employs a full-time administrator as its Executive Secretary. Textbooks may be purchased only "for use in those courses set up in the state course of study adopted by the State Board of Education, or courses established by special acts of the Legislature." Id., § 6646. For each course of study, there is a "rating committee" composed of appointed members, id., § 6641 (1) (d), and only those books approved by the relevant rating committee may be purchased from publishers at a price which cannot "be higher than the lowest prices at which the same books are being sold anywhere in the United States." Id., § 6646 (1).
The District Court found that "34,000 students are presently receiving state-owned textbooks while attending 107 all-white, nonsectarian private schools which have been formed throughout the state since the inception
In dismissing the complaint the District Court stressed, first, that the statutory scheme was not motivated by a desire to further racial segregation in the public schools, having been enacted first in 1940, long before this Court's decision in Brown v. Board of Education, 347 U.S. 483 (1954), and consequently, long before there was any occasion to have a policy or reason to foster the development of racially segregated private academies. Second, the District Court took note that providing textbooks to private sectarian schools had been approved by this Court in Board of Education v. Allen, 392 U.S. 236 (1968), and that "[t]he essential inquiry, therefore, is whether we should apply a more stringent standard for determining what constitutes state aid to a school in the context of the Fourteenth Amendment's ban against denial of the equal protection of the law than the Supreme Court has applied in First Amendment cases." 340 F. Supp., at 1011. The District Court held no more stringent standard should apply on the facts of this case, since, as in Allen, the books were provided to the students and not to the schools. Finally, the District Court concluded that the textbook loans did not interfere with or impede the State's acknowledged duty to establish a unitary
In Pierce v. Society of Sisters, 268 U.S. 510 (1925), the Court held that a State's role in the education of its citizens must yield to the right of parents to provide an equivalent education for their children in a privately operated school of the parents' choice. In the 1971 Term we reaffirmed the vitality of Pierce, in Wisconsin v. Yoder, 406 U.S. 205, 213 (1972), and there has been no suggestion in the present case that we alter our view of Pierce. Yet the Court's holding in Pierce is not without limits. As MR. JUSTICE WHITE observed in his concurring opinion in Yoder, Pierce "held simply that while a State may posit [educational] standards, it may not pre-empt the educational process by requiring children to attend public schools." Id., at 239.
Appellees fail to recognize the limited scope of Pierce when they urge that the right of parents to send their children to private schools under that holding is at stake in this case. The suggestion is made that the rights of parents under Pierce would be undermined were the lending of free textbooks denied to those who attend private
We do not see the issue in appellees' terms. In Pierce, the Court affirmed the right of private schools to exist and to operate; it said nothing of any supposed right of private or parochial schools to share with public schools in state largesse, on an equal basis or otherwise. It has never been held that if private schools are not given some share of public funds allocated for education that such schools are isolated into a classification violative of the Equal Protection Clause. It is one thing to say that a State may not prohibit the maintenance of private schools and quite another to say that such schools must, as a matter of equal protection, receive state aid.
The appellees intimate that the State must provide assistance to private schools equivalent to that which it provides to public schools without regard to whether the private schools discriminate on racial grounds. Clearly, the State need not. Even as to church-sponsored schools whose policies are nondiscriminatory, any absolute right to equal aid was negated, at least by implication, in Lemon v. Kurtzman, 403 U.S. 602 (1971). The Religion Clauses of the First Amendment strictly confine state aid to sectarian education. Even assuming, therefore, that the Equal Protection Clause might require state aid to be granted to private nonsectarian schools in some circumstances—health care or textbooks, for example—a State could rationally conclude as a matter of legislative policy that constitutional neutrality as to sectarian schools might best be achieved by withholding all state assistance. See San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973). In the same way, a
The District Court's holding therefore raises the question whether and on what terms a State may—as a matter of legislative policy—provide tangible assistance to students attending private schools. Appellants assert, not only that the private schools are in fact racially discriminatory, but also that aid to them in any form is in derogation of the State's obligation not to support discrimination in education.
This Court has consistently affirmed decisions enjoining state tuition grants to students attending racially discriminatory private schools.
We do not suggest that a State violates its constitutional duty merely because it has provided any form of state service that benefits private schools said to be racially discriminatory. Textbooks are a basic educational tool and, like tuition grants, they are provided only in connection with schools; they are to be distinguished from generalized services government might provide to schools in common with others. Moreover, the textbooks provided to private school students by the State in this case are a form of assistance readily available from sources entirely independent of the State—unlike, for example, "such necessities of life as electricity, water, and police and fire protection." Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 173 (1972). The State has neither an absolute nor operating monopoly on the procurement of school textbooks; anyone can purchase them on the open market.
The District Court laid great stress on the absence of a showing by appellants that "any child enrolled in private school, if deprived of free textbooks, would with-draw from private school and subsequently enroll in the public schools." 340 F. Supp., at 1013. We can accept this factual assertion; we cannot and do not know, on this record at least, whether state textbook assistance is the determinative factor in the enrollment of any students in any of the private schools in Mississippi. We do not agree with the District Court in its analysis of the legal consequences of this uncertainty, for the Constitution
The recurring theme of appellees' argument is a sympathetic one—that the State's textbook loan program is extended to students who attend racially segregated private schools only because the State sincerely wishes to foster quality education for all Mississippi children, and, to that end, has taken steps to insure that no sub-group of schoolchildren will be deprived of an important educational tool merely because their parents have chosen to enroll them in segregated private schools. We need not assume that the State's textbook aid to private schools has been motivated by other than a sincere interest in the educational welfare of all Mississippi children. But good intentions as to one valid objective do not serve to negate the State's involvement in violation of a constitutional duty. "The existence of a permissible purpose cannot sustain an action that has an impermissible effect." Wright v. Council of City of Emporia, 407 U.S. 451, 462 (1972). The Equal Protection Clause would
The District Court offered as further support for its holding the finding that Mississippi's public schools "were fully established as unitary schools throughout the state no later than 1970-71 [and] continue to attract 90% of the state's educable children." 340 F. Supp., at 1013. We note, however, that overall state-wide attendance figures do not fully and accurately reflect the impact of private schools in particular school districts.
Appellees and the District Court also placed great reliance on our decisions in Everson v. Board of Education, 330 U.S. 1 (1947), and Board of Education v. Allen, 392 U.S. 236 (1968). In Everson, we held that the Establishment Clause of the First Amendment did not prohibit New Jersey from "spending tax-raised funds to pay the bus fares of parochial school pupils as a part of a general program under which it pays the fares of pupils attending public and other schools." 330 U. S., at 17. Allen, following Everson, sustained a New York law requiring school textbooks to be lent free of charge to all students, including those in attendance at parochial schools, in specified grades.
Neither Allen nor Everson is dispositive of the issue before us in this case. Religious schools "pursue two goals, religious instruction and secular education." Board of Education v. Allen, supra, at 245. And, where carefully limited so as to avoid the prohibitions of the "effect" and "entanglement" tests, States may assist church-related schools in performing their secular functions, Committee for Public Education v. Nyquist, post, at 774, 775; Levitt v. Committee for Public Education, post, at 481, not only because the States have a substantial interest in the quality of education being provided by private schools, see Cochran v. Louisiana Board of Education, 281 U.S. 370, 375 (1930), but more importantly because assistance properly confined to the secular functions of sectarian schools does not substantially promote the readily identifiable religious mission of those schools and it does not interfere with the free exercise rights of others.
Like a sectarian school, a private school—even one
Our decisions under the Establishment Clause reflect the "internal tension in the First Amendment between the Establishment Clause and the Free Exercise Clause," Tilton v. Richardson, 403 U.S. 672, 677 (1971). This does not mean, as we have already suggested, that a State is constitutionally obligated to provide even "neutral" services to sectarian schools. But the transcendent value of free religious exercise in our constitutional scheme leaves room for "play in the joints" to the extent of cautiously delineated secular governmental assistance to religious schools, despite the fact that such assistance touches on the conflicting values of the Establishment Clause by indirectly benefiting the religious schools and their sponsors.
In contrast, although the Constitution does not proscribe private bias, it places no value on discrimination as
At oral argument, appellees expressed concern over the process of determining the scope of relief to be granted should appellants prevail on the merits. That aspect of the case presents problems but the procedural details need not be fully resolved here. The District Court's assumption that textbook loans were permissible, even to racially discriminating private schools, obviated any necessity for that court to determine whether some of the private schools could properly be classified as "racially discriminatory" and how that determination might best be made. We construe the complaint as contemplating an individual determination as to each private school in Mississippi whose students now receive textbooks
The proper injunctive relief can be granted without implying a finding that all the private schools alleged to be receiving textbook aid are in fact practicing restrictive admission policies. Private schools are not fungible and the fact that some or even most may practice discrimination does not warrant blanket condemnation. The District Court can appropriately direct the appellees to submit for approval a certification procedure under which any school seeking textbooks for its pupils may apply for participation on behalf of pupils. The certification by the school to the Mississippi Textbook Purchasing Board should, among other factors, affirmatively declare its admission policies and practices, state the number of its racially and religiously identifiable minority students and such other relevant data as is consistent with this opinion. The State's certification of eligibility would, of course, be subject to judicial review.
This school-by-school determination may be cumbersome but no more so than the State's process of ascertaining compliance with educational standards. No presumptions flow from mere allegations; no one can be required, consistent with due process, to prove the absence of violation of law.
The judgment of the District Court is vacated and the case is remanded for further proceedings consistent with this opinion.
MR. JUSTICE DOUGLAS and MR. JUSTICE BRENNAN concur in the result.
"For the distribution of free textbooks the local control will be placed in the hands of the County Superintendent of Education. All requisitions for books shall be made through him and all shipments of books shall be invoiced through him. At his discretion he may set up certain regulations governing the distribution of books within the county, such regulations not to conflict with the regulations adopted by the State Textbook Board or provisions of the Free Textbook Act."
This regulation was revised on October 14, 1970, to read as follows:
"Public Schools. The administration of the textbook program in the public schools shall be the responsibility of the administrative heads of the county units, consolidated districts, and municipal separate districts set up by the Legislature. All textbook transactions between the public schools and the State shall be carried on through them. It shall be the duty of these local custodians to render all reports required by the State; to place orders for textbooks for the pupils in their schools . . . .
"Private Schools. Private and parochial school programs shall be the responsibility of the State Textbook Board. All textbook transactions will be carried out between the Board and the administrative heads of these schools. Their duties shall be the same as outlined above for public schools."
The leeway for indirect aid to sectarian schools has no place in defining the permissible scope of state aid to private racially discriminatory schools. "State support of segregated schools through any arrangement, management, funds, or property cannot be squared with the [Fourteenth] Amendment's command that no State shall deny to any person within its jurisdiction the equal protection of the laws." Cooper v. Aaron, 358 U.S. 1, 19 (1958). Thus MR. JUSTICE WHITE, the author of the Court's opinion in Allen, supra, and a dissenter in Lemon v. Kurtzman, supra, noted there that in his view, legislation providing assistance to any sectarian school which restricted entry on racial or religious grounds would, to that extent, be unconstitutional. Lemon, supra, at 671 n. 2. See Part IV, infra.