Norwood v. Harrison, 413 U.S. 455 (1973)

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF MISSISSIPPI

Syllabus

A three-judge District Court sustained the validity of a Mississippi statutory program, begun in 1940, 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. The number of private secular schools in Mississippi, with a virtually all-white student population, has greatly increased in recent years.

Held:

1. Private schools have the right to exist and to operate, Pierce v. Society of Sisters, 268 U.S. 510, but the State is not required by the Equal Protection Clause to provide assistance to private schools equivalent to that it provides to public schools without regard to whether the private schools discriminate on racial grounds. Pp. 461-463.

2. Free textbooks, like tuition grants directed to students in private schools, are a form of tangible financial assistance benefiting the schools themselves, and the State’s constitutional obligation requires it to avoid not only operating the old dual system of racially segregated schools but also providing tangible aid to schools that practice racial or other invidious discrimination. Pp. 463-468.

3. Assistance carefully limited so as to avoid the prohibitions of the "effect" and "entanglement" tests may be confined to the secular functions of sectarian schools and does not substantially promote the religious mission of those schools in violation of the Establishment Clause. In this case, however, the legitimate educational function of private discriminatory schools cannot be isolated from their alleged discriminatory practices; discriminatory treatment exerts a pervasive influence on the entire educational process. Brown v. Board of Education, 347 U.S. 483. The Establishment Clause permits a greater degree of state assistance to sectarian schools than may be given to private schools which engage in discriminatory practices. Everson v. Board of Education, 330 U.S. 1, and Board of Education v. Allen, 392 U.S. 236, distinguished. Pp. 468-470.

4. Proper injunctive relief can be granted without implying that all the private schools alleged to be receiving textbook aid have restrictive admission policies. The District Court can direct appellees to submit for approval a certification procedure whereby schools may apply for textbooks on behalf of pupils, affirmatively declaring admission policies and practices, and stating the number of their racially and religiously identifiable minority students, and other relevant data. Certification of eligibility will be subject to judicial re.view. Pp. 470-471.

340 F.Supp. 1003, vacated and remanded.

BURGER, C.J., delivered the opinion of the Court, in which STEWART, WHITE, MARSHALL, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS and BRENNAN, JJ., concurred in the result.