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1. In this writ petition, the petitioner-Trust and the college have prayed for issue of a writ of certiorari for quashing the order dated 31.05.2017 passed by the respondent No.1 whereunder the petitioners have been debarred from admitting 150 students in the MBBS course in the academic years 2017-18 and 2018-19 and further to restrain the respondent No.2, Medical Council of India (MCI), to encash the bank guarantee of Rs. 2 crores furnished by the petitioner-institution.
That apart, the prayer is to quash the order dated 14.08.2017 passed by the respondent No.1 for reiterating the said order. The relief has been sought for issue of writ of mandamus, commanding the respondent No.1 to grant renewal for the academic year 2017-18 keeping in view the recommendations dated 14th May, 2017, submitted by the Oversight Committee constituted in terms of the order of this Court and to direct the respondents to permit the institution to admit 150 students in MBBS Course for the academic year 2017-18.
2. At the very inception, it is necessary to state that though many a document has been filed and prolonged, anxious, forceful and sometimes vehement arguments have been canvassed, yet the controversy, as we perceive, lies in a narrow compass. And to appreciate the same, we are required to set out the chronology of litigation. Its life is not long.
3. The petitioner No.1, a Trust, established under the Indian Trust Act, 1882 decided to establish a new Medical College by the name of Kerala Medical College at Palakkad, Kerala. It submitted an application under Section 10-A of the Indian Medical Council Act, 1956 (for brevity, "the Act") to the respondent No.1 to establish the Medical College in the name and style of Kerala Medical College and Hospital seeking admission of 150 students in the MBBS Course for the academic year 2014-15. As certain deficiencies were pointed out by the MCI, it was not granted Letter of Permission (LOP) for the year 2014-15.
Thereafter, in 2015, an application was filed for grant of LOP for the academic session 2016-17. A team of assessors of the respondent No. 2 conducted assessment of the college in regard to grant of LOP for the academic year 2016-17 and submitted its report. The respondent No.2, on the basis of the reports of the assessors dated 16.12.2015 and 17.12.2015 in its Executive Committee meeting dated 28.12.2015 made recommendation to the respondent No.1 not to grant LOP for the academic year 2016-17.
On 18.01.2016, the respondent No.1 afforded an opportunity of hearing to the petitioner as contemplated under Section 10A(4) of the Act and the petitioner gave its explanation as regards the deficiencies pointed out by the respondent No.2 and the respondent No.1 being satisfied referred back the matter to the respondent No. 2 for review.
4. As the factual narration would evince, on 10th February, 2016, a team of assessors of the respondent No. 2 conducted verification assessment for grant of LOP for the academic year 2016-17. In the mean time, the Constitution Bench in Modern Dental College and Research Center and others v. State of Madhya Pradesh and others1 constituted the Oversight Committee headed by Justice R.M. Lodha former CJI to oversee the functioning of the MCI. We shall refer the relevant paragraphs of the said judgment at a later stage. On 13th May, 2016, the report of the assessors team was considered by the Executive Committee of the respondent No.2 in its meeting dated 13.05.2016 and on 14.5.2016 the MCI recommended the disapproval of the scheme of the petitioner under Section 10-A of the Act for the academic year 2016-17.
However, after Oversight Committee was constituted, the Central Government issued a public notice informing all the Medical Colleges to submit a compliance report concerning their respective colleges who had applied for LOP for 2016-17. As the facts would unfold, the 1st respondent sent the compliance report along with the reply of the MCI to the Oversight Committee for consideration which on 11.08.2016 approved the same for the year 2016-17 imposing certain conditions.
A notification with respect to constitution of the said Committee be issued within two weeks from today. The Committee be given all facilities to function. The remuneration of the Members of the Committee may be fixed in consultation with them. The said Committee will have the authority to oversee all statutory functions under the MCI Act. All policy decisions of MCI will require approval of the Oversight Committee. The Committee will be free to issue appropriate remedial directions.
The Committee will function till the Central Government puts in place any other appropriate mechanism after due consideration of the Expert Committee Report. Initially the Committee will function for a period of one year, unless suitable mechanism is brought in place earlier which will substitute the said Committee. We do hope that within the said period the Central Government will come out with an appropriate mechanism."
6. As mentioned earlier, the Government constituted the Oversight Committee and thereafter the assessment report and the views of the Executive Committee were sent to the Oversight Committee.
"Kerala Medical College, Palakkad, Kerala, MBBS (150 seats), LOP for 2016-2-17 u/s 10A.
The Institution had stated that all deficiencies (faculty/resident/clinical material and infrastructure) pointed out by MCI have been made up by them. The OC peruse the statement in the compliance report submitted by the college. These statements satisfy the criteria stated in para 3.1 above. Accordingly, the application is approved subject to conditions laid down in aforementioned para 3.2."
(ii) A bank guarantee in the amount of Rs. 2 crore in favour of MCI, which will be valid for 1 year or until the first renewal assessment, whichever is later. Such bank guarantee will be in addition to the prescribed fee submitted alongwith the application. 3.2(a) OC may direct inspection to verify the compliance submitted by the college and considered by OC, anytime after 30 September 2016.
(b) In default of the conditions (i) and (ii) para 3.2 above and if the compliances are found incomplete in the inspection to be conducted after 30 September 2016, such college will be debarred from fresh intake of students for 2 years commencing 2017-18."
"1. Deficiency of faculty is 13.84% as detailed in the report.
2. Shortage of Residents is 8.69% as detailed in the report.
3. No Anti Sera are available in Microbiology laboratory.
5. Casualty: Separate casualty for O.G. is not available. Crash Cart is not available.
6. O.T.: Preoperative beds are not available.
7. ICUs: There was only 1 patient in ICCU, SICU on day of assessment.
8. Only 1 out of 2 Static X-ray machines has AERB approval.
9. Blood Bank: Only 2 units were dispensed on day of assessment.
10. ETO Sterlizer is not available.
11. OPD: Separate Registration counters for OPD/IPD are not available.
12. Audiometry (Soundproof & Air-conditioned) is not available. There was no Audiometer.
13. Other deficiencies as pointed out in the assessment report."
10. The Executive Committee took into consideration the report of the assessors and letter dated 29th December, 2016 of the Principal, Kerala Medical College, Palakkad regarding promotion of Dr. Munir U.A. from Assistant Professor to Associate Professor in the department of Pediatrics and the clinical material and leave of the faculty and resident doctors during MCI assessment. Regard being had to the deficiencies, the MCI recommended to the Central Government not to grant Letter of Permission.
11. Thereafter, the Union of India passed an order on 31st May, 2017, debarring the petitioner-College to admit the students in the MBBS course in the academic years 2017- 2018 and 2018-2019 and also authorized the MCI to encash the bank guarantee of Rs.2.00 crore.
"In continuation to this Ministry's letter dated 20.08.2016 granting conditional permission for establishment of a medical college 150 seats for the academic year 2016-2017 on the basis of approval communicated by Supreme Court Mandated Oversight Committee on MCI and after granting an opportunity of hearing to the College with reference to the recommendation of the MCI's letter NO.MCI-36(41)(e-86)/2016- Med./167376 dated 15.01.2017, I am directed to convey the decision of the Central Government to debar Kerala Medical College, Palakkad from admitting students in next two academic years i.e. 2017-2018 & 2018-2019 and also to authorize MCI to encash the Bank Guarantee of Rs.2.00 crore. You are therefore, directed not to admit students in the MBBS course in the academic years 2017-2018 & 2018-2019 at your College.
Thereafter, next batch of students shall be admitted in the College only after obtaining permission of the Central Government for renewal. Admissions made in violation of the above directives will be treated as irregular and action will be initiated under IMC Act & Regulations made thereunder."
"In the light of the order passed by the Apex Court in Writ Petition (Civil) No.411 of 2017 and connected matters on 01.08.2017, as the medical colleges involved in these cases are similarly placed, I deem it appropriate to pass an interim order directing the Central Government to consider afresh the materials on record pertaining to the issue of renewal or otherwise of the letter of permission granted to the petitioner colleges/institutions.
It is made clear that while undertaking this exercise, the Central Government shall re-evaluate the recommendations/views of the MCI, Hearing Committee, Director General of Health Services and the Oversight Committee, as available on records. The Central Government shall also afford an opportunity of hearing to the petitioner colleges/institutions to the extent necessary. The process of hearing and the final reasoned decision thereon, as ordered, shall be completed peremptorily, within a period of fifteen days from today."
"Whereas, the MCI vide letter dated 15.1.2017 has informed and recommended to the Ministry as under: "In view of the above, the college has failed to abide by the undertaking it had given to the Central Govt. that there are no deficiencies as per clause 3.2(i) of the directions passed by the Supreme Court mandated Oversight Committee vide communication dated 11/8/2016. The Executive Committee, after due deliberation and discussion, have decided that the college has failed to comply with the stipulation laid down by the Oversight Committee.
Accordingly, the Executive Committee recommends that as per the directions passed by Oversight Committee in para 3.2(b) vide communication dated 11/08/2016 the college should be debarred from admitting students in the above course for a period of two academic years i.e. 2017-18 & 2018-19 as even after giving an undertaking that they have fulfilled the entire infrastructure for establishment of new medical college at Palakkad by Royal Medical Trust under Kerala University of Health Sciences, Thrissur the college was found to be grossly deficient.
Deficiency of faculty is 13.84% as detailed in the report.
No satisfactory justification for deficiencies.
No Anti Sera are available in Microbiology laboratory.
ICUs: There was only 1 patient in ICCU, SICU on day of assessment.
Only 1 out of 2 Static X-ray machines has AERB approval.
Blood Bank: Only 2 units were dispensed on day of assessment.
ETO Sterilizer is not available.
OPD: Separate Registration counters for OPD/IPD are not available.
Audiometry (Soundproof & Air-conditioned) is not available. There was no Audiometer.
Whereas, the Ministry forwarded the Hearing Committee report to the OC for guidance.
(i) Faculty:- Considering the 7 members of faculty (out of 8) as explained by the College, the deficiency is 3.03% which is within the acceptable limits.
(ii) Residents:- Considering the 4 residents as explained by the College, there is no deficiency.
(iii) No Anti Sera:- The deficiency is subjective though explained by the College.
(iv) Bed occupancy:- The College has explained the grounds.
(v) Casualty:- The College has explained the grounds. This deficiency is subjective. No MSR.
(vi) OT:- The College has explained the grounds.
(vii) ICUs:- The College has explained the grounds. This deficiency is subjective. No MSR.
(viii) X-Ray machines:- The statement of College is correct as seen from the attached approvals.
(ix) Blood Bank:- The ColLege has explained the grounds. This deficiency is subjective. No MSR.
(x) ETO:- The College has explained the grounds.
(xi) OPD:- The College has explained the grounds.
The College explanation is acceptable on the basis of photos attached. LOP confirmed."
14. After so noting, the Central Government referred to its earlier order dated 31st May, 2017 and the order dated 2nd August, 2017, passed by the High Court of Kerala at Ernakulam and held thus:- "Now, in compliance with the above direction of Hon'ble High Court dated 2.8.2017, the Ministry granted hearing to the college on 8.8.2017. The Hearing Committee after considering the record and oral & written submission of the college submitted its report to the Ministry. Findings of Hearing Committee are as under: "MCI has pointed out deficiency of 9 faculty and 4 residents against the requirement.
The shortfall is attributed by the college to leave opted by staffs during the Christmas - New Year week. Supporting documents such as bank statement Form-16 (for financial year 2015-16) were also submitted for the doctors on leave. It is observed that the appointment orders issued by the college are without any reference number. Nothing could be conclusively established about the faculty on leave. The submission of the college regarding static x-ray machine, pre-operative beds, ETO sterilizer, audiometry, etc. may be accepted. However, the college seems deficient in bed occupancy.
In view of the Committee, the college is at LoP stage and the facilities have to be satisfactorily verified. The Committee agrees with the decision of the Ministry vide letter dated 31.05.2017 to debar the college for two years and also permit MCI to encash bank guarantee. Accepting the recommendations of Hearing Committee, the Ministry reiterates it earlier decision dated 31.5.2017 to debar the college from admitting students for a period of 2 years i.e., 2017-18 & 2018-19 and also authorize MCI to encash Bank Guarantee of Rs.2 crores." The said order is the subject matter of assail in this Writ Petition.
15. We have heard Dr. Rajiv Dhawan and Mr. Mukul Rohatgi, learned senior counsel for the petitioners, Mr. Ajit Kumar Sinha, learned senior counsel for the Union of India and Mr. Vikas Singh, learned senior counsel along with Mr. Gaurav Sharma, learned counsel for the MCI.
16. Learned counsel for the petitioners submit that the inspection that has been carried out by the MCI is a composite inspection for 2016-2017 and 2017-2018 and when the deficiencies are marginal and, in fact, it can be said there is really no deficiency, there is no justification to deny the LOP for 2017-2018. It is urged by them that the explanation offered by the petitioner-institution has really not been taken into consideration and had it been appositely appreciated, such an assessment could not have been made by the assessors. They have also highlighted that certain other institutions having more deficiencies have been extended the benefit of LOP for 2017-2018, but for no fathomable or acceptable reason, the institution in question has been deprived of the said benefit.
It is urged with vehemence that the order passed by the Central Government is not in consonance with the judgments rendered by this Court in Glocal Medical College (supra), IQ City Foundation and Another v. Union of India & Ors3. That apart, it is contended that the inspection by the MCI was done during the Christmas and New Year, which is not permissible as per the Regulations and hence, the whole report deserves to be disregarded.
Additionally, it is propounded that the status of the order passed by the Central Government still remains an unreasoned one and by stretch of reasoning, it can be conferred the distinction of a reasoned order. Dr. Rajiv Dhawan, pyramiding the aforesaid submissions along with Mr. Mukul Rohatgi, submits that the Court does not sit in appeal over such order and, therefore, when the order is absolutely perverse and arbitrary, it should be overturned in exercise of power of judicial review and the institution should be granted LOP for the academic year 2017-2018.
Oversight Committee, the opinion of the Hearing Committee and eventual expression of an opinion. According to him, if such an order is not given the stamp of a 'reasoned order', it will be granting premium to recalcitrant institutions, which are bent upon imparting medical education in an unscrupulous manner.
According to Mr. Sinha, concept of negative equality is not within the ambit of Article 14 of the Constitution of India and, in any case, this Court has issued notice to the other institutions and, therefore, the petitioners cannot claim parity. Additionally, he would put forth that in most of the matters, this Court has directed for consideration of the LOP for the year 2018-2019 and the present fact situation does not exposit a different scenario and hence, this Court should not make any distinction in the present case.
18. Mr. Vikas Singh, learned senior counsel appearing for the MCI refuting the arguments advanced by the learned senior counsel for the petitioners, contends that ascribing of reasons by an administrative authority should not be equated to a judgment of the Court, for what is required is to see whether the reasons are discernible and whether there has been application of mind. Mr. Singh would further contend that the allegation made by the petitionerinstitution that the Executive Committee has not considered the explanation offered by the competent authority of the college shows an attitude of obstinacy and deviancy. Learned senior counsel would contend that the in IQ City Foundation (supra) when this Court remanded the matter and in Glocal Medical College (supra) when this Court granted the benefit on proper appreciation, it would be quite lucent, the role conferred on the MCI of India and the reason for extending the benefit to an institution for 2017- 2018.
That apart, propounds Mr. Singh, that the educational institutions cannot remain disobedient to the framework of the Regulations brought into existence under Section 33 of the Act and assert with stubbornness that they should be given the LOP. According to him, if such a situation is allowed to prevail, the Act, the Regulations and Minimum Standard Requirement (MSR) for the MCI would be tenuous and ultimately come within the tentacles of unscrupulous institutions.
19. This Court in IQ City Foundation (supra), after referring to Dr. Ashish Ranjan and Others v. Union of India and Others4 and Manohar Lal Sharma v. Medical Council of India and Others5, Medical Council of India v. Kalinga Institute of Medical Sciences (KIMS) and Others 6 and Royal Medical Trust (Registered) and Another v. Union of India and Another7 held thus:- "On a reading of Section 10-A of the Act, Rules and the Regulations, as has been referred to in Manohar Lal Sharma (supra), and the view expressed in Royal Medical Trust (supra), it would be inapposite to restrict the power of the MCI by laying down as an absolute principle that once the Central Government sends back the matter to MCI for compliance verification and the Assessors visit the College they shall only verify the mentioned items and turn a Nelson's eye even if they perceive certain other deficiencies.
It would be playing possum. The direction of the Central Government for compliance verification report should not be construed as a limited remand as is understood within the framework of Code of Civil Procedure or any other law. The distinction between the principles of open remand and limited remand, we are disposed to think, is not attracted. Be it clearly stated, the said principle also does not flow from the authority in Royal Medical Trust (supra). In this context, the objectivity of the Hearing Committee and the role of the Central Government assume great significance. The real compliant institutions should not always be kept under the sword of Damocles. Stability can be brought by affirmative role played by the Central Government. And the stability and objectivity would be perceptible if reasons are ascribed while expressing a view and absence of reasons makes the decision sensitively susceptible. Having said this, we are not inclined to close the matter.
The petitioners have been running the College since 2013-14. We have been apprised that students who have been continuing their education shall continue for 2017-18. As we find the order of the Central Government is not a reasoned one. It is obligatory on its part to ascribe reasons.
For the said purpose, we would like the Central Government to afford a further opportunity of hearing to the petitioners and also take the assistance of the newly constituted Oversight Committee as per the order dated July 18, 2017 passed by the Constitution Bench in Writ Petition (Civil) No. 408 of 2017 titled Amma Chandravati Educational and Charitable Trust and others v. Union of India and another and thereafter take a decision within two weeks. Needless to say, the decision shall contain reasons. We repeat at the cost of repetition that the decision must be an informed one."
(a) whether the proposed medical college or the existing medical college seeking to open a new or higher course of study or training, would be in a position to offer the minimum standards of medical education as prescribed by the Council under Section 19A or, as the case may be, under Section 20 in the case of postgraduate medical education.
(g) any other factors as may be prescribed."
(iii) dispose of the matters pending with the Central Government under Section 10A upon receipt of the same from it."
22. In Manohar Lal Sharma (supra), Section 3-B was interpreted thus:- "MCI, with the previous sanction by the Central Government, in exercise of its powers conferred by Sections 10-A and 33 of the Indian Medical Council Act, 1956, made the Regulations known as the Establishment of Medical College Regulations, 1999. Regulation 8 of the 1999 Regulations deals with grant of permission for establishment of new college. Application/ Scheme submitted by the applicants is evaluated and the verification takes place by conducting physical inspection by the team of inspectors of MCI.
The Board of Governors may grant LoP to the applicant for making admissions in the first year of MBBS course in the medical college and the permission is renewed every year subject to the college achieving the yearly target mentioned in "Minimum Standard Requirements for the Medical College for 150 Admissions Annually Regulations, 1999".
Schedule I of the abovementioned Regulation provides for accommodation in the medical college and its teaching hospital. Schedule II deals with equipment required for various departments in the college and hospital. The requirements are statutorily prescribed and, therefore, the Board of Governors has no power to dilute the statutory requirements mentioned in the abovementioned Regulations."
23. In Royal Medical Trust (supra), the Court after due advertence to Section 10-A of the Act and the Regulations framed by the Medical Council of India, has ruled:- "MCI and the Central Government have been vested with monitoring powers under Section 10A and the Regulations. It is expected of these authorities to discharge their functions well within the statutory confines as well as in conformity with the Schedule to the Regulations.
If there is inaction on their part or nonobservance of the time schedule, it is bound to have adverse effect on all concerned. The affidavit filed on behalf of the Union of India shows that though the number of seats had risen, obviously because of permissions granted for establishment of new colleges, because of disapproval of renewal cases the resultant effect was net loss in terms of number of seats available for the academic year.
It thus not only caused loss of opportunity to the students community but at the same time caused loss to the society in terms of less number of doctors being available. MCI and the Central Government must therefore show due diligence right from the day when the applications are received. The Schedule giving various stages and time-limits must accommodate every possible eventuality and at the same time must comply with the requirements of observance of natural justice at various levels.
(A) Initial assessment of the application at the first level should comprise of checking necessary requirements such as essentiality certificate, consent for affiliation and physical features like land and hospital requirement. If an applicant fails to fulfil these requirements, the application on the face of it, would be incomplete and be rejected. Those who fulfil the basic requirements would be considered at the next stage.
(B) Inspection should then be conducted by the Inspectors of MCI. By very nature such inspection must have an element of surprise. Therefore sufficient time of about three to four months ought to be given to MCI to cause inspection at any time and such inspection should normally be undertaken latest by January. Surprise inspection would ensure that the required facilities and infrastructure are always in place and not borrowed or put in temporarily.
(C) Intimation of the result or outcome of the inspection would then be communicated. If the infrastructure and facilities are in order, the medical college concerned should be given requisite permission/renewal. However, if there are any deficiencies or shortcomings, MCI must, after pointing out the deficiencies, grant to the college concerned sufficient time to report compliance.
(D) If compliance is reported and the applicant states that the deficiencies stand removed, MCI must cause compliance verification. It is possible that such compliance could be accepted even without actual physical verification but that assessment be left entirely to the discretion of MCI and the Central Government. In cases where actual physical verification is required, MCI and the Central Government must cause such verification before the deadline.
(E) The result of such verification if positive in favour of the medical college concerned, the applicant ought to be given requisite permission/renewal. But if the deficiencies still persist or had not been removed, the applicant will stand disentitled so far as that academic year is concerned."
24. On a perusal of the aforesaid, it is clear as crystal that the surprise inspection is permissible and the college is required to remain compliant. The thrust of the matter is whether the inspection is justified and the decision taken by the Central Government is correct or not. To appreciate the propriety and correctness of the inspection during Christmas and New Year, it is necessary to refer to clause 8(3)(1)(d) of the Establishment of Medical College Regulations, 1999. The said clause reads as follows:- "However, the office of the Council shall ensure that such inspections are not carried out at least 2 days before and 2 days after important religious and festival holidays declared by the Central/State Govt."
25. In the case at hand, the assessors had gone for inspection on 28th and 29th December, 2016. In Shri Venkateshwara University Through its Registrar & Another vs. Union of India and Another8 [Writ Petition (Civil) No. 445 of 2017] this Court has referred to the decision in Kanachur Islamic Education Trust (R) vs. Union of India and Another9 and after reproducing few paragraphs has held:- "On a careful reading of the aforesaid judgment, we do not think that the clause has been interpreted as not to allow any inspection on a Sunday, but the Court have said in the factual matrix of the said case that the Institution was a minority institution and a major festival for the said community was scheduled on 12th December, 2016 and the day previous thereto i.e. 11th December, 2016, was a Sunday and the said facts are not wholly irrelevant.
The said analysis cannot be regarded as the construction of the clause. Having said that, we shall proceed to analyze what the clause precisely conveys. On a careful reading of the same, it is quite clear and unambiguous that the obligation of the MCI is to ensure that inspections are not to be carried out at least 2 days before and 2 days after an important religious and festival holidays declared by the Central/State Government. In the clause, the words which gain significance are "important religious and festival holidays". On 12th December, 2016, it was Milad-un-Nabi and it is the day of festival.
The inspection was done on 9th December, 2016, which was a Friday. The amended clause of the notification state only covers 2 days before the festival declared as a holiday by the Central/State Government and 2 days thereafter. In the case at hand, the inspection team had gone for inspection on 9th December, 2016, and they were deprived to carry out the inspection. It was not covered by the concept of two days of moratorium."
"That against the inspections conducted by the MCI, the petitioner's college/institution had submitted representations on 15.12.2016 and 16.1.2017 before the Central Government is a matter of record.
That the report qua the inspection conducted on 17-18.11.2016 did not disclose any substantial deficiency warranting disapproval as observed by the Hearing Committee is also not in dispute. It is unambiguously clear that the inspection of the petitioner's college undertaken on 17-18.11.2016 did not divulge any substantial deficiency justifying disapproval of the LOP to it. The reason for the surprise inspection on 9- 10.12.2016, i.e. within three weeks of the first exercise and that too in absence of any noticeable substantial deficiency, is convincingly not forthcoming."
27. On a careful reading of the said paragraph, it is limpid that is not the ratio of the decision that there cannot be a surprise inspection and every time reasons have to be recorded. Be it noted, the Court has also clarified the position at the end of the verdict stating thus:- "We make it clear that the decision rendered and the directions issued are in the singular facts and circumstances of the case."
28. It is well settled in law that the ratio of a decision has to be understood regard being had to its context and factual exposition. The ratiocination in an authority is basically founded on the interpretation of the statutory provision. If it is based on a particular fact or the decision of the Court is guided by specific nature of the case, it will not amount to the ratio of the judgment. Lord Halsbury in Quinn v. Leathem10 has ruled:- "... every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but are governed and qualified by the particular facts of the case in which such expressions are to be found."
(iii) judgment based on the combined effect of the above. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found.
It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, ascertained on a consideration of the judgment in relation to the subject-matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution.
A deliberate judicial decision arrived at after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, no matter for what reason, and the precedent by long recognition may mature into rule of stare decisis. It is the rule deductible from the application of law to the facts and circumstances of the case which constitutes its ratio decidendi.
Therefore, in order to understand and appreciate the binding force of a decision it is always necessary to see what were the facts in the case in which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a statute. A word or a clause or a sentence in the judgment cannot be regarded as a full exposition of law. Law cannot afford to be static and therefore, Judges are to employ an intelligent technique in the use of precedents."
30. In Bussa Overseas and Properties Private Limited and Another vs. Union of India and Another13, while dealing with the precedential value of the decision in Thungabhadra Industries Limited vs. State of A.P.14, the two-Judge Bench held:- "The aforesaid decision in Thungabhadra Industries Ltd. case when properly appreciated clearly reveals that it pertains to the stage when objection is to be taken. It does not lay down that a special leave petition against a review petition is maintainable or not. The focus on the stage of taking objection is fact-centric but not principleoriented. To elaborate, the said decision does not lay down as a principle that the Court is bereft of power to hear on maintainability. If we understand the view expressed therein, it can be said that the Court has been guided by the concept of propriety."
31. In Royal Medical Trust (supra), this Court has clearly held that there can be surprise inspection as that ensures that the required facilities and infrastructure are always in place and not borrowed or put in temporarily.
32. In IQ City Foundation and Another (supra), after referring to Royal Medical Trust (supra), the Court has held:- "Therefore, the emphasis is on the complaint institutions that can really educate doctors by imparting quality education so that they will have the inherent as well as cultivated attributes of excellence."
33. Thus, in our considered opinion what has been stated in Royal Medical Trust (supra) and IQ City Foundation (supra) has the precedential value under Article 141 of the Constitution. We have no hesitation in saying that the pronouncement in Kanachur Islamic Education Trust (R) (supra) has to rest on its own facts.
"We would like to bring to your kind notice that few faculty and residents were on leave and half day leave on various reasons during the assessment conducted by MCI in Kerala Medical College, Palakkad on 28-12-2016.
The details are mentioned below for your kind perusal.
1. Dr. Gurusiddana Gowda, Associate Professor of Radio Diagnosis. His father had expired two weeks back and he had gone to perform the rituals of his father as per Hindu religious custom. He is the elder son in the family. Form 16, salary statement from bank and attendance register copy is enclosed herewith.
2. Dr. R. Balamurugan Ramdas, Associate Professor of Bio Chemistry. He had gone to his native Pondichery during Christmas Holidays taking leave till 01-01-2017 because of personal reasons. Form 16, salary statement from bank and attendance register copy is enclosed herewithleave submission form.
3. Dr. MS Ramaiyah, Associate Professor of Medicine. He was on half day leave on 28-12-2016 and reported in the afternoon. He was presented before the inspectors but not accepted as he was not present at the time of taking attendance at 11 a.m. Form 16, salary statement from the bank and attendance register copy is enclosed herewith.
4. Dr. N. Natarajan, Associate Professor of Medicine. He was on half day leave on 28-12-2016 and reported in the afternoon. He was presented before the inspectors but not accepted as he was not present at the time of taking attendance at 11 a.m. Form 16, salary statement from the bank and attendance register copy is enclosed herewith.
5. Dr. MS Dhananjaya, Professor of OBG. His cousin brother had expired and the 12th day ritual ceremony was on 28-12-2016 and he had been sanctioned leave. He is present on 29-12- 2016 and presented before the assessors. Form 16, salary statement from the bank and attendance register copy is enclosed herewith.
6. Dr. Ravi Chandra, Associate Professor of Surgery. He had gone to his native during Christmas holidays taking leave till 31-12.2016 because of personal reasons. Salary statement from bank and attendance register copy is enclosed herewith.
7. Dr. Asha S Jagtap, Professor of PSM She had gone to her native during Christmas holidays taking leave till 31-12-2016 because of personal reasons. Form 16, salary statement from the bank and attendance register copy is enclosed herewith.
8. Dr. Girist A, Senior Resident in Medicine. He was on half day leave on 28-12-2016 and reported in the afternoon. He was presented before the inspectors but not accepted as he was not present at the time of taking attendance at 11 a.m. Salary statement from the bank and attendance register copy is enclosed herewith.
9. Dr. Basavaraj SK, Senior resident of Medicine. He had gone to his native during Christmas holidays taking leave till 31-12-2016 because of personal reasons. Salary statement from bank and attendance register copy is enclosed herewith.
10. Dr. B. Ravindra Shivaji, Senior Resident of Radio Diagnosis. He had gone to his native during Christmas holidays taking leave till 31-12-2016 because of personal reasons. Salary statement from bank and attendance register copy is enclosed herewith.
11. Dr. Harithakumari Landa, Senior Resident of pulmonary medicine. She had gone to his native during Christmas holidays taking leave till 31-12-2016 because of personal reasons. Salary statement from the bank and attendance register copy is enclosed herewith."
35. It is submitted by the learned senior counsel appearing for the petitioners that the Medical Council of India as well as the Central Government should have accepted the leave position and, in any case, it was within the permissible limit.
(d) For attending Courts; Provided that appropriate documents certifying the same which are countersigned by the dean are furnished.
(2) The faculty who is on sanctioned Maternity leave would be accepted provided the appropriate leave sanction order issued by the sanctioning authority and countersigned by the Dean is furnished with all necessary certificates."
37. The said resolution is strenuously contested by the learned senior counsel for the petitioners. It is urged with immense vehemence that the resolution smacks of gross arbitrariness and reveals a sense of hidden base for use of power of an absolute tyrant and a despot. Mr. Singh explaining the same would submit that a hospital to remain compliant has to have the requisite number of doctors and staff, and to run a medical college constant compliance is imperative. According to him, when a college is granted LOP for the first year, 5% margin with regard to absence is granted and that is why certain categories of leave have not been mentioned in the resolution, but that does not mean that the college can grant leave to the doctors at its whim and fancy.
Be that as it may, the absence of faculty members which has been taken note of by the Medical Council of India and accepted by the Central Government cannot be allowed to pale into total insignificance. In this regard, a submission advanced by the learned senior counsel for the petitioners requires to be noted. It is urged by them that the engagement of the faculty members are to be believed as they are paid their salaries by the petitioners and it is shown in the necessary Income Tax form.
38. It needs no special emphasis to state that the said submission cannot be the guiding factor for our analysis. The issue is the deficiency of the doctors and the absence of the doctors during the period of inspection. We have already held that the period in which the assessors inspected cannot be said to be a period covered under the Regulations. That apart, as is noticeable, the Hearing Committee which has been constituted on the basis of the decision in Amma Chandravati Educational and Charitable Trust (supra), has also held that the college is deficient in bed occupancy at the conditional LOP stage other facilities have to be specifically verified and in the absence of satisfaction, the LOP ought not to be granted.
39. In the course of hearing, Mr. Rohatgi, learned senior counsel for the petitioners has placed heavy reliance on Krishna Mohan Medical College and Hospital & Anr v. Union of India & Anr15 (Writ Petition (Civil) No. 448 of 2017 decided on 01.09.2017) and Dr. Jagat Narain Subharti Charitable Trust & Anr v. Union of India & Ors16.
40. In Krishna Mohan Medical College (supra), this Court has held:- "... as the Act and Regulations framed thereunder have been envisioned to attain the highest standards of medical education, we direct the Central Government/MCI to cause a fresh inspection of the petitioner college/institution to be made in accordance therewith for the academic year 2018-19 and lay the report in respect thereof before this Court within a period of eight weeks herefrom.
A copy of the report, needless to state, would be furnished to the petitioner college/institution at the earliest so as to enable it to avail its remedies, if so advised, under the Act and the Regulations. The Central Government/MCI would not encash the bank guarantee furnished by the petitioner college/institution. For the present, the impugned order dated 10.8.2017 stands modified to this extent only. The direction for a writ, order or direction to the respondents to permit the petitioner college/institution to admit students for the academic year 2017-18, in the facts of the case, is declined."
41. In Dr. Jagat Narain Subharti Charitable Trust (supra), the Court, while granting the benefit for academic session 2017-2018, opined:- "Thus, there has been substantial compliance of the said requirement by the petitioners. Assuming that the notification dated 16.10.2015 applied even to the proposal of the petitioners, suffice it to observe that failure to furnish information in the prescribed Form-5 cannot be held against the petitioners. In any case, that is not a deficiency relating to infrastructure or academic matters as such, which may require a different approach."
42. The aforesaid decisions speak for themselves and, therefore, reliance on the same by the petitioners is of no avail.
43. Dr. Rajiv Dhawan would submit that this Court should not exercise appellate jurisdiction which is fundamentally called an error jurisdiction or rectification of errors. We are absolutely conscious of the appellate jurisdiction and the jurisdiction this Court is required to exercise while determining the controversy in exercise of power of judicial review under Article 32 of the Constitution.
The principle of judicial review by the constitutional courts have been lucidly stated in many an authority of this Court. In Tata Cellular v. Union of India17, dealing with the concept of Judicial Review, the Court held:- "Lord Scarman in Nottinghamshire County Council v. Secretary of State for the Environment proclaimed: 'Judicial review' is a great weapon in the hands of the judges; but the judges must observe the constitutional limits set by our parliamentary system upon the exercise of this beneficial power."
Commenting upon this Michael Supperstone and James Goudie in their work Judicial Review (1992 Edn.) at p. 16 say: "If anyone were prompted to dismiss this sage warning as a mere obiter dictum from the most radical member of the higher judiciary of recent times, and therefore to be treated as an idiosyncratic aberration, it has received the endorsement of the Law Lords generally. The words of Lord Scarman were echoed by Lord Bridge of Harwich, speaking on behalf of the Board when reversing an interventionist decision of the New Zealand Court of Appeal in Butcher v. Petrocorp Exploration Ltd. 18-3-1991." Observance of judicial restraint is currently the mood in England. The judicial power of review is exercised to rein in any unbridled executive functioning.
The restraint has two contemporary manifestations. One is the ambit of judicial intervention; the other covers the scope of the court's ability to quash an administrative decision on its merits. These restraints bear the hallmarks of judicial control over administrative action. Judicial review is concerned with reviewing not the merits of the decision in support of which the application for judicial review is made, but the decision-making process itself."
44. After so stating, reference was made to the law enunciated in Chief Constable of the North Wales Police v. Evans18 wherein, it has been ruled:- "Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made. * * * Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power."
45. In the said case, the Court also referred to R. v. Panel on Take-overs and Mergers, ex. P. Datafin plc19 wherein Sir John Donaldson, M.R. commented:- "An application for judicial review is not an appeal."
(i) Illegality : This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.
(iii) Procedural impropriety. The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secretary of State for the Home Department, ex Brind, Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, "consider whether something has gone wrong of a nature and degree which requires its intervention".
48. Thereafter, the Court referred to the authorities in R. v. Askew 20 and Council of Civil Service Unions v. Minister for Civil Service21 and further expressed:- "At this stage, The Supreme Court Practice, 1993, Vol. 1, pp. 849-850, may be quoted: "4. Wednesbury principle.- A decision of a public authority will be liable to be quashed or otherwise dealt with by an appropriate order in judicial review proceedings where the court concludes that the decision is such that no authority properly directing itself on the relevant law and acting reasonably could have reached it. (Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., per Lord Greene, M.R.)" We may hasten to add, though the decision was rendered in the context of justification of grant of contract but the principles set out as regards the judicial review are of extreme significance.
49. Discussing at length, the principle of judicial review in many a decision, the two Judge Bench in Reliance Telecom Ltd. & Another v. Union of India & Another22, has held:- "As we find, the decision taken by the Central Government is based upon certain norms and parameters. Though criticism has been advanced that it is perverse and irrational, yet we are disposed to think that it is a policy decision which subserves the consumers' interest. It is extremely difficult to say that the decision to conduct the auction in such a manner can be considered to be mala fide or based on extraneous considerations."
50. Thus analysed, it is evincible that the exercise of power of judicial review and the extent to which it has to be done will vary from case to case. It is necessary to state with emphasis that it has its own complexity and would depend upon the factual projection. The broad principles have been laid down in Tata Cellular (supra) and other decisions make it absolutely clear that judicial review, by no stretch of imagination, can be equated with the power of appeal, for while exercising the power under Article 226 or 32 of the Constitution, the constitutional courts do not exercise such power. The process of adjudication on merit by re-appreciation of the materials brought on record which is the duty of the appellate court is not permissible.
52. What Dr. Dhawan submits basically is that as the order passed by the Central Government after the order passed by the High Court of Kerala does not really reflect any reason, this Court should axe the same treating it as arbitrary and grant the LOP and that would be within the power of judicial review. The order passed by the Central Government has to be appreciated in its entirety.
We repeat at the cost of repetition that neither the Central Government nor the Hearing Committee is expected to pass a judgment as a Judge is expected to do. The order must reflect application of mind and should indicate reasons. We may reiterate that the order dated 31st May, 2017, was bereft of reason, but the order impugned, that is the order dated 14th August, 2017, cannot be said to be sans reason. Learned senior counsel would contend with all the vigour at his command that it is not a reasoned one and for the same our attention has been drawn to the penultimate paragraph of the order.
53. We are of the considered opinion that the order of the present nature has to be appreciated in entirety and when we peruse the entire order, we find that substantial reasons have been ascribed and, therefore, we are compelled to repel the submissions so assiduously and astutely advanced by Dr. Dhawan.
(a) The petitioners are not entitled to Letter Of Permission (LOP) for the academic session 2017-2018. We direct that the order passed in the present writ petition shall be applicable hereafter for the academic session 2017-2018 since the cut off date for admissions to MBBS course for academic session 2017-2018 is over and the academic session has commenced. No petition shall be entertained from any institution/college/society/trust or any party for grant of LOP for 2017-2018. We say so as the controversy for grant of LOP for the academic year 2017-2018 should come to an end and cannot become an event that defeats time. The students who are continuing their studies on the basis of LOP granted for the academic year 2016-2017 should be allowed to continue their studies in the college and they shall be permitted to continue till completion of the course.
(b) The applications submitted for 2017-2018 shall be treated as applications for 2018-2019 and the petitioners shall keep the bank guarantee deposited with the Medical Council of India alive and the MCI shall not encash the same.
(c) The Medical Council of India shall conduct a fresh inspection as per the Regulations within a period of two months. It shall apprise the petitioner-institution with regard to the deficiencies and afford an opportunity to comply with the same and, thereafter, proceed to act as contemplated under the Act.
(d) The inspection shall be carried out for the purpose of grant of LOP for the academic session 2018-2019.
(e) After the Medical Council of India sends its recommendation to the Central Government, it shall take the final decision as per law after affording an opportunity of hearing to the petitioners. Needless to say, it shall take the assistance of the Hearing Committee as constituted by the Constitution Bench decision in Amma Chandravati Educational and Charitable Trust (supra) or other directions given in the said decision.
55. The writ petition is, accordingly, disposed of. There shall be no order as to costs.


Held: Section 290.09, subd. 22, does not violate the Establishment Clause, but satisfies all elements of the "three-part" test laid down in Lemon v. Kurtzman, 403 U.S. 602, that must be met for such a statute to be upheld under the Clause. Pp. 392-403.
(a) The tax deduction in question has the secular purpose of ensuring that the State's citizenry is well educated, as well as of assuring the continued financial health of private schools, both sectarian and nonsectarian. Pp. 394-395.
(b) The deduction does not have the primary effect of advancing the sectarian aims of nonpublic schools. It is only one of many deductions -- such as those for medical expenses and charitable contributions -- available under the Minnesota tax laws; is available for educational expenses incurred by all parents, whether their children attend public schools or private sectarian or nonsectarian private schools, Committee for Public Education v. Nyquist, 413 U.S. 756, distinguished; and provides aid to parochial schools only as a result of decisions of individual parents, rather than directly from the State to the schools themselves. The Establishment Clause's historic purposes do not encompass the sort of attenuated financial benefit that eventually flows to parochial schools from the neutrally available tax benefit at issue. The fact that, notwithstanding § 290.09, subd. 22's facial neutrality, a particular annual statistical analysis shows that the statute's application primarily benefits religious institutions [p389] does not provide the certainty needed to determine the statute's constitutionality. Moreover, private schools, and parents paying for their children to attend these schools, make special contributions to the areas in which the schools operate. Pp. 396-402.
(c) Section 290.09, subd. 22, does not "excessively entangle" the State in religion. The fact that state officials must determine whether particular textbooks qualify for the tax deduction and must disallow deductions for textbooks used in teaching religious doctrines is an insufficient basis for finding such entanglement. P. 403.
Minnesota allows taxpayers, in computing their state income tax, to deduct certain expenses incurred in providing for the education of their children. Minn.Stat. § 290.09, subd. 22 (1982). [n1] The United States Court of Appeals for the Eighth Circuit held that the Establishment Clause of the First Amendment, as made applicable to the States by the Fourteenth Amendment, was not offended by this arrangement. Because this question was reserved in Committee for Public Education v. Nyquist, 413 U.S. 756 (1973), and because [p391] of a conflict between the decision of the Court of Appeals for the Eighth Circuit and that of the Court of Appeals for the First Circuit in Rhode Island Federation of Teachers v. Norberg, 630 F.2d 855 (CA1 1980), we granted certiorari. 459 U.S. 820 (1982). We now affirm.
Minnesota, like every other State, provides its citizens with free elementary and secondary schooling. Minn.Stat. §§ 120.06, 120.72 (1982). It seems to be agreed that about 820,000 students attended this school system in the most recent school year. During the same year, approximately 91,000 elementary and secondary students attended some 500 privately supported schools located in Minnesota, and about 95% of these students attended schools considering themselves to be sectarian.
Petitioners -- certain Minnesota taxpayers -- sued in the United States District Court for the District of Minnesota claiming that § 290.09, subd. 22, violated the Establishment Clause by providing financial assistance to sectarian institutions. They named as defendants, respondents here, the Commissioner of the Department of Revenue of Minnesota and several parents who took advantage of the tax deduction for expenses incurred in sending their children to parochial schools. The District Court granted respondents' motion for summary judgment, holding that the statute was "neutral on its face and in its application, and does not have a primary effect of either advancing or inhibiting religion." 514 F . Supp. 998, 1003 (1981). On appeal, the Court of Appeals affirmed, concluding that the Minnesota statute substantially benefited a "broad class of Minnesota citizens." 676 F.2d 1195, 1205 (1982).
Today's case is no exception to our oft-repeated statement that the Establishment Clause presents especially difficult questions of interpretation and application. It is easy enough to quote the few words constituting that Clause -- "Congress shall make no law respecting an establishment of [p393] religion." It is not at all easy, however, to apply this Court's various decisions construing the Clause to governmental programs of financial assistance to sectarian schools and the parents of children attending those schools. Indeed, in many of these decisions, we have expressly or implicitly acknowledged that "we can only dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law." Lemon v. Kurtzman, 403 U.S. 602, 612 (1971), quoted in part with approval in Nyquist, 413 U.S. at 761, n. 5.
One fixed principle in this field is our consistent rejection of the argument that "any program which in some manner aids an institution with a religious affiliation" violates the Establishment Clause. Hunt v. McNair, 413 U.S. 734, 742 (1973). See, e.g., Bradfield v. Roberts, 175 U.S. 291 (1899); Walz v. Tax Comm'n, 397 U.S. 664 (1970). For example, it is now well established that a State may reimburse parents for expenses incurred in transporting their children to school, Everson v. Board of Education, 330 U.S. 1 (1947), and that it may loan secular textbooks to all schoolchildren within the State, Board of Education v. Allen, 392 U.S. 236 (1968).
Notwithstanding the repeated approval given programs such as those in Allen and Everson, our decisions also have struck down arrangements resembling, in many respects, these forms of assistance. See, e.g., Lemon v. Kurtzman, supra; Levitt v. Committee for Public Education, 413 U.S. 472 (1973); Meek v. Pittenger, 421 U.S. 349 (1975); Wolman v. Walter, 433 U.S. 229, 237-238 (1977). [n3] In this case, we [p394] are asked to decide whether Minnesota's tax deduction bears greater resemblance to those types of assistance to parochial schools we have approved, or to those we have struck down. Petitioners place particular reliance on our decision in Committee for Public Education v. Nyquist, supra, where we held invalid a New York statute providing public funds for the maintenance and repair of the physical facilities of private schools and granting thinly disguised "tax benefits," actually amounting to tuition grants, to the parents of children attending private schools. As explained below, we conclude that § 290.09, subd. 22, bears less resemblance to the arrangement struck down in Nyquist than it does to assistance programs upheld in our prior decisions and those discussed with approval in Nyquist.
First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion . . . ; finally, the statute must not foster "an excessive government entanglement with religion."
Id. at 612-613. While this principle is well settled, our cases have also emphasized that it provides "no more than [a] helpful signpos[t]" in dealing with Establishment Clause challenges. Hunt v. McNair, supra, at 741. With this caveat in mind, we turn to the specific challenges raised against § 290.09, subd. 22, under the Lemon framework.
Little time need be spent on the question of whether the Minnesota tax deduction has a secular purpose. Under our prior decisions, governmental assistance programs have consistently survived this inquiry even when they have run afoul of other aspects of the Lemon framework. See, e.g., Lemon v. Kurtzman, supra; Meek v. Pittenger, supra, at 363; Wolman v. Walter, supra, at 236. This reflects, at least in part, our reluctance to attribute unconstitutional motives to the States, particularly when a plausible secular purpose [p395] for the State's program may be discerned from the face of the statute.
Parochial schools, quite apart from their sectarian purpose, have provided an educational alternative for millions of young Americans; they often afford wholesome competition with our public schools; and in some States, they relieve substantially the tax burden incident to the operation of public schools. The State has, moreover, a legitimate interest in facilitating education of the highest quality for all children within its boundaries, whatever school their parents have chosen for them.
In this respect, as well as others, this case is vitally different from the scheme struck down in Nyquist. There, public assistance amounting to tuition grants was provided only to parents of children in nonpublic schools. This fact had considerable bearing on our decision striking down the New York statute at issue; we explicitly distinguished both Allen and Everson on the grounds that "[i]n both cases the class of beneficiaries included all schoolchildren, those in public as well as those in private schools." 413 U.S. at 782-783, n. 38 (emphasis in original). [n8] Moreover, we intimated that "public assistance (e.g., scholarships) made available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited," ibid., might not offend the Establishment Clause. We think the tax deduction adopted by Minnesota is more similar to this latter type of program than it is to the arrangement struck down in Nyquist. Unlike the assistance at issue in Nyquist, § 290.09, subd. 22, permits all parents -- whether their children attend public school or private -- to deduct their children's educational expenses. As Widmar and our other decisions indicate, a program, like § 290.09, subd. 22, that neutrally provides [p399] state assistance to a broad spectrum of citizens is not readily subject to challenge under the Establishment Clause.
We also agree with the Court of Appeals that, by channeling whatever assistance it may provide to parochial schools through individual parents, Minnesota has reduced the Establishment Clause objections to which its action is subject. It is true, of course, that financial assistance provided to parents ultimately has an economic effect comparable to that of aid given directly to the schools attended by their children. It is also true, however, that, under Minnesota's arrangement, public funds become available only as a result of numerous private choices of individual parents of school-age children. For these reasons, we recognized in Nyquist that the means by which state assistance flows to private schools is of some importance: we said that "the fact that aid is disbursed to parents, rather than to . . . schools," is a material consideration in Establishment Clause analysis, albeit "only one among many factors to be considered." 413 U.S. at 781. It is noteworthy that all but one of our recent cases invalidating state aid to parochial schools have involved the direct transmission of assistance from the State to the schools themselves. The exception, of course, was Nyquist, which, as discussed previously, is distinguishable from this case on other grounds. Where, as here, aid to parochial schools is available only as a result of decisions of individual parents, no "imprimatur of state approval," Widmar, supra, at 274, can be deemed to have been conferred on any particular religion, or on religion generally.
"[w]hat is at stake as a matter of policy [in Establishment Clause cases] is preventing that kind and degree of government involvement in religious life that, as history [p400] teaches us, is apt to lead to strife and frequently strain a political system to the breaking point."
Nyquist, 413 U.S. at 796, quoting Walz v. Tax Comm'n, 397 U.S. at 694 (opinion of Harlan, J.). It is important, however, to "keep these issues in perspective:"
At this point in the 20th century, we are quite far removed from the dangers that prompted the Framers to include the Establishment Clause in the Bill of Rights. See Walz v. Tax Comm'n, 397 U.S. 664, 668 (1970). The risk of significant religious or denominational control over our democratic processes -- or even of deep political division along religious lines -- is remote, and when viewed against the positive contributions of sectarian schools, any such risk seems entirely tolerable in light of the continuing oversight of this Court.
Wolman, 433 U.S. at 263 (POWELL, J., concurring in part, concurring in judgment in part, and dissenting in part). The Establishment Clause, of course, extends beyond prohibition of a state church or payment of state funds to one or more churches. We do not think, however, that its prohibition extends to the type of tax deduction established by Minnesota. The historic purposes of the Clause simply do not encompass the sort of attenuated financial benefit, ultimately controlled by the private choices of individual parents, that eventually flows to parochial schools from the neutrally available tax benefit at issue in this case.
Petitioners argue that, notwithstanding the facial neutrality of § 290.09, subd. 22, in application, the statute primarily benefits religious institutions. [n9] Petitioners rely, as they did [p401] below, on a statistical analysis of the type of persons claiming the tax deduction. They contend that most parents of public school children incur no tuition expenses, see Minn.Stat. § 120.06 (1982), and that other expenses deductible under § 290.09, subd. 22, are negligible in value; moreover, they claim that 96% of the children in private schools in 1978-1979 attended religiously affiliated institutions. Because of all this, they reason, the bulk of deductions taken under § 290.09, subd. 22, will be claimed by parents of children in sectarian schools. Respondents reply that petitioners have failed to consider the impact of deductions for items such as transportation, summer school tuition, tuition paid by parents whose children attended schools outside the school districts in which they resided, rental or purchase costs for a variety of equipment, and tuition for certain types of instruction not ordinarily provided in public schools.
We need not consider these contentions in detail. We would be loath to adopt a rule grounding the constitutionality of a facially neutral law on annual reports reciting the extent to which various classes of private citizens claimed benefits under the law. Such an approach would scarcely provide the certainty that this field stands in need of, nor can we perceive principled standards by which such statistical evidence might be evaluated. Moreover, the fact that private persons fail in a particular year to claim the tax relief to which they are entitled -- under a facially neutral statute -- should be of little importance in determining the constitutionality of the statute permitting such relief.
Finally, private educational institutions, and parents paying for their children to attend these schools, make special contributions to the areas in which they operate.
Parochial [p402] schools, quite apart from their sectarian purpose, have provided an educational alternative for millions of young Americans; they often afford wholesome competition with our public schools; and in some States they relieve substantially the tax burden incident to the operation of public schools.
instructional books and materials used in the teaching of religious tenets, doctrines or worship, the purpose of which is to inculcate such tenets, doctrines or worship.
Tuition and transportation expense. The amount he has paid to others, not to exceed $500 for each dependent in grades K to 6 and $700 for each dependent in grades 7 to 12, for tuition, textbooks and transportation of each dependent in attending an elementary or secondary school situated in Minnesota, North Dakota, South Dakota, Iowa, or Wisconsin, wherein a resident of this state may legally fulfill the state's compulsory attendance laws, which is not operated for profit, and which adheres to the provisions of the Civil Rights Act of 1964 and chapter 363. As used in this subdivision, "textbooks" shall mean and include books and other instructional materials and equipment used in elementary and secondary schools in teaching only those subjects legally and commonly taught in public elementary and secondary schools in this state and shall not include instructional books and materials used in the teaching of religious tenets, doctrines or worship, the purpose of which is to inculcate such tenets, doctrines or worship, nor shall it include such books or materials for, or transportation to, extracurricular activities including sporting events, musical or dramatic events, speech activities, driver's education, or programs of a similar nature.
1. Tuition in the ordinary sense.
4. Tuition charged by a school for slow learner private tutoring services.
8. Tuition for driver education when it is part of the school curriculum.
514 F.Supp. 998, 1000 (1981). The Court of Appeals concurred in this finding.
1. Cost of tennis shoes and sweatsuits for physical education.
3. Ice skates rental fee paid to the school.
4. Rental fee paid to the school for calculators for mathematics classes.
9. Cost of pencils and special notebooks required for class.
Ibid. The Court of Appeals accepted this finding.
3. In Lemon v. Kurtzman, the Court concluded that the State's reimbursement of nonpublic schools for the cost of teachers' salaries, textbooks, and instructional materials, and its payment of a salary supplement to teachers in nonpublic schools, resulted in excessive entanglement of church and state. In Levitt v. Committee for Public Education, we struck down on Establishment Clause grounds a state program reimbursing nonpublic schools for the cost of teacher-prepared examinations. Finally, in Meek v. Pittenger and Wolman v. Walter, we held unconstitutional a direct loan of instructional materials to nonpublic schools, while upholding the loan of textbooks to individual students.
4. Section 290.09 contains no express statements of legislative purpose, and its legislative history offers few unambiguous indications of actual intent. The absence of such evidence does not affect our treatment of the statute.
5. Deductions for charitable contributions, allowed by Minnesota law, Minn.Stat. § 290.21, subd. 3 (1982), include contributions to religious institutions, and exemptions from property tax for property used for charitable purposes under Minnesota law include property used for wholly religious purposes, § 272.02. In each case, it may be that religious institutions benefit very substantially from the allowance of such deductions. The Court's holding in Walz v. Tax Comm'n, 397 U.S. 664 (1970), indicates, however, that this does not require the conclusion that such provisions of a State's tax law violate the Establishment Clause.
The amount of the deduction is unrelated to the amount of money actually expended by any parent on tuition, but is calculated on the basis of a formula contained in the statute. The formula is apparently the product of a legislative attempt to assure that each family would receive a carefully estimated net benefit, and that the tax benefit would be comparable to, and compatible with, the tuition grant for lower income families.
Id. at 790 (footnote omitted). Indeed, the question whether a program having the elements of a "genuine tax deduction" would be constitutionally acceptable was expressly reserved in Nyquist, supra, at 790, n. 49. While the economic consequences of the program in Nyquist and that in this case may be difficult to distinguish, we have recognized on other occasions that "the form of the [State's assistance to parochial schools must be examined] for the light that it casts on the substance." Lemon v. Kurtzman, 403 U.S. at 614. The fact that the Minnesota plan embodies a "genuine tax deduction" is thus of some relevance, especially given the traditional rule of deference accorded legislative classifications in tax statutes.
7. Likewise, in Sloan v. Lemon, 413 U.S. 825, 832 (1973), where we held that a Pennsylvania statute violated the First Amendment, we emphasized that "the State [had] singled out a class of its citizens for a special economic benefit." We also observed in Widmar that "empirical evidence that religious groups will dominate [the school's] open forum," 454 U.S. at 275, might be relevant to analysis under the Establishment Clause. We address this infra at 400-402.
Allen and Everson differ from the present litigation in a second important respect. In both cases, the class of beneficiaries included all schoolchildren, those in public as well as those in private schools. See also Tilton v. Richardson, [ 403 U.S. 672 (1971)], in which federal aid was made available to all institutions of higher learning, and Walz v. Tax Comm'n, supra, in which tax exemptions were accorded to all educational and charitable nonprofit institutions. . . . Because of the manner in which we have resolved the tuition grant issue, we need not decide whether the significantly religious character of the statute's beneficiaries might differentiate the present cases from a case involving some form of public assistance (e.g., scholarships) made available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited. . . . Thus, our decision today does not compel . . . the conclusion that the educational assistance provisions of the "G. I. Bill," 38 U.S.C. § 1651 impermissibly advance religion in violation of the Establishment Clause.
413 U.S. at 782-783, n. 38. See also id. at 775.
[o]nly those taxpayers having dependents in nonpublic elementary or secondary schools are affected by this law, since tuition, transportation and textbook expenses for public school students are paid for by the school district.
Brief for Petitioners 38. We fail to see the significance of the report; it is no more than a capsule description of the tax deduction provision. As discussed below, and as the lower courts expressly found, the analysis is plainly mistaken, as a factual matter, regarding the effect of § 290.09, subd. 22. Moreover, several memoranda prepared by the Minnesota Department of Revenue in 1979 -- stating that a number of specific expenses may be deducted by parents with children in public school -- clearly indicate that the summary discussion in the 1976 memorandum was not intended as any comprehensive or binding agency determination.
10. Our conclusion is unaffected by the fact that § 290.09, subd. 22, permits deductions for amounts spent for textbooks and transportation as well as tuition. In Everson v. Board of Education, 330 U.S. 1 (1947), we approved a statute reimbursing parents of all schoolchildren for the costs of transporting their children to school. Doing so by means of a deduction, rather than a direct grant, only serves to make the State's action less objectionable. Likewise, in Board of Education v. Allen, 392 U.S. 236 (1968), we approved state loans of textbooks to all schoolchildren; although we disapproved, in Meek v. Pittenger, 421 U.S. 349 (1975), and Wolman v. Walter, 433 U.S. 229 (1977), direct loans of instructional materials to sectarian schools, we do not find those cases controlling. First, they involved assistance provided to the schools themselves, rather than tax benefits directed to individual parents, see supra at 399. Moreover, we think that state assistance for the rental of calculators, see App. A18, ice skates, ibid., tennis shoes, ibid., and the like, scarcely poses the type of dangers against which the Establishment Clause was intended to guard.
11. No party to this litigation has urged that the Minnesota plan is invalid because it runs afoul of the rather elusive inquiry, subsumed under the third part of the Lemon test, whether the Minnesota statute partakes of the "divisive political potential" condemned in Lemon, 403 U.S. at 622. The argument is advanced, however, by amici National Committee for Public Education and Religious Liberty et al. This variation of the "entanglement" test has been interpreted differently in different cases. Compare Lemon v. Kurtzman, 403 U.S. at 622-625, with id. at 665-666 (opinion of WHITE, J.); Meek v. Pittenger, 421 U.S. at 359-362, with id. at 374-379 (BRENNAN, J., concurring in part and dissenting in part). Since this aspect of the "entanglement" inquiry originated with Lemon v. Kurtzman, supra, and the Court's opinion there took pains to distinguish both Everson v. Board of Education, supra, and Board of Education v. Allen, supra, the Court in Lemon must have been referring to a phenomenon which, although present in that case, would have been absent in the two cases it distinguished.
The Court's language in Lemon respecting political divisiveness was made in the context of Pennsylvania and Rhode Island statutes which provided for either direct payments of, or reimbursement of, a proportion of teachers' salaries in parochial schools. We think, in the light of the treatment of the point in later cases discussed above, the language must be regarded as confined to cases where direct financial subsidies are paid to parochial schools or to teachers in parochial schools.
The Establishment Clause of the First Amendment prohibits a State from subsidizing religious education, whether it does so directly or indirectly. In my view, this principle of neutrality forbids not only the tax benefits struck down in Committee for Public Education v. Nyquist, 413 U.S. 756 (1973), but any tax benefit, including the tax deduction at issue here, which subsidizes tuition payments to sectarian schools. I also believe that the Establishment Clause prohibits the tax deductions that Minnesota authorizes for the cost of books and other instructional materials used for sectarian purposes.
The majority today does not question the continuing vitality of this Court's decision in Nyquist. That decision established that a State may not support religious education either through direct grants to parochial schools or through financial aid to parents of parochial school students. Id. at 780, 785-786. Nyquist also established that financial aid to parents of students attending parochial schools is no more permissible if it is provided in the form of a tax credit than if provided in the form of cash payments. Id. at 789-791; see ante at 396-397, n. 6. Notwithstanding these accepted principles, [p405] the Court today upholds a statute that provides a tax deduction for the tuition charged by religious schools. The Court concludes that the Minnesota statute is "vitally different" from the New York statute at issue in Nyquist. Ante at 398. As demonstrated below, there is no significant difference between the two schemes. The Minnesota tax statute violates the Establishment Clause for precisely the same reason as the statute struck down in Nyquist: it has a direct and immediate effect of advancing religion.
In calculating their net income for state income tax purposes, Minnesota residents are permitted to deduct the cost of their children's tuition, subject to a ceiling of $500 or $700 per child. By taking this deduction, a taxpayer reduces his tax bill by a sum equal to the amount of tuition multiplied by his rate of tax. Although this tax benefit is available to any parents whose children attend schools which charge tuition, the vast majority of the taxpayers who are eligible to receive the benefit are parents whose children attend religious schools. In the 1978-1979 school year, 90,000 students were enrolled in nonpublic schools charging tuition; over 95% of those students attended sectarian schools. Although the statute also allows a deduction for the tuition expenses of children attending public schools, Minnesota public schools are generally prohibited by law from charging tuition. Minn.Stat. § 120.06 (1982). Public schools may assess tuition charges only for students accepted from outside the district. § 123.39, subd. 5. In the 1978-1979 school year, only 79 public school students fell into this category. The parents of the remaining 815,000 students who attended public schools were ineligible to receive this tax benefit.
Like the law involved in Nyquist, the Minnesota law can be said to serve a secular purpose: promoting pluralism and diversity among the State's public and nonpublic schools. But the Establishment Clause requires more than that legislation have a secular purpose. Nyquist, 413 U.S. at 773.
[T]he [p406] propriety of a legislature's purposes may not immunize from further scrutiny a law which . . . has a primary effect that advances religion.
As we recognized in Nyquist, direct government subsidization of parochial school tuition is impermissible because "the effect of the aid is unmistakably to provide desired financial support for nonpublic, sectarian institutions." 413 U.S. at 783. "[A]id to the educational function of [parochial] schools . . . necessarily results in aid to the sectarian school enterprise as a whole" because "[t]he very purpose of many of those schools is to provide an integrated secular and religious education." Meek v. Pittenger, supra, at 366. For this reason, aid to sectarian schools must be restricted to ensure that it may be not used to further the religious mission of those schools. See, e.g., Wolman v. Walter, supra, at 250-251. While "services such as police and fire protection, sewage disposal, highways, and sidewalks," may be provided to parochial schools in common with other institutions, because this type of assistance is clearly "‘marked off from the religious function'" of those schools, Nyquist, supra, at 781-782, quoting Everson v. Board of Education, 330 U.S. 1, 18 (1947), unrestricted financial assistance, such as grants for the maintenance and construction of parochial schools, may not be [p407] provided. Nyquist, 413 U.S. at 774-780.
In the absence of an effective means of guaranteeing that the state aid derived from public funds will be used exclusively for secular, neutral, and nonideological purposes, it is clear from our cases that direct aid in whatever form is invalid.
"guarantee the separation between secular and religious educational functions and . . . ensure that State financial aid supports only the former."
[I]t is precisely the function of [Minnesota's] law to provide assistance to private schools, the great majority of which are sectarian. By reimbursing parents for a portion of their tuition bill, the State seeks to relieve their financial burdens sufficiently to assure that they continue to have the option to send their children to religion-oriented schools. And while the other purposes for that aid -- to perpetuate a pluralistic educational environment and to protect the fiscal integrity of overburdened public schools -- are certainly unexceptionable, the effect of the aid is unmistakably to provide desired financial support for nonpublic, sectarian institutions.
That parents receive a reduction of their tax liability, rather than a direct reimbursement, is of no greater significance here than it was in Nyquist. "[F]or purposes of determining whether such aid has the effect of advancing religion," [p408] it makes no difference whether the qualifying "parent receives an actual cash payment [or] is allowed to reduce . . . the sum he would otherwise be obliged to pay over to the State." Id. at 790-791. It is equally irrelevant whether a reduction in taxes takes the form of a tax "credit," a tax "modification," or a tax "deduction." Id. at 789-790. What is of controlling significance is not the form, but the "substantive impact" of the financial aid. Id. at 786.
[I]nsofar as such benefits render assistance to parents who send their children to sectarian schools, their purpose and inevitable effect are to aid and advance those religious institutions.
Id. at 793 (emphasis added).
The majority attempts to distinguish Nyquist by pointing to two differences between the Minnesota tuition assistance program and the program struck down in Nyquist. Neither of these distinctions can withstand scrutiny.
The majority first attempts to distinguish Nyquist on the ground that Minnesota makes all parents eligible to deduct up to $500 or $700 for each dependent, whereas the New York law allowed a deduction only for parents whose children attended nonpublic schools. Although Minnesota taxpayers who send their children to local public schools may not deduct tuition expenses because they incur none, they may deduct other expenses, such as the cost of gym clothes, pencils, and notebooks, which are shared by all parents of school-age children. This, in the majority's view, distinguishes the Minnesota scheme from the law at issue in Nyquist.
That the Minnesota statute makes some small benefit available to all parents cannot alter the fact that the most substantial benefit provided by the statute is available only to those parents who send their children to schools that charge tuition. It is simply undeniable that the single largest expense that may be deducted under the Minnesota statute is tuition. The statute is little more than a subsidy of tuition masquerading [p409] as a subsidy of general educational expenses. The other deductible expenses are de minimis in comparison to tuition expenses.
Contrary to the majority's suggestion, ante at 401, the bulk of the tax benefits afforded by the Minnesota scheme are enjoyed by parents of parochial school children not because parents of public school children fail to claim deductions to which they are entitled, but because the latter are simply unable to claim the largest tax deduction that Minnesota authorizes. [n2] Fewer than 100 of more than 900,000 school-age children in Minnesota attend public schools that charge a general tuition. Of the total number of taxpayers who are eligible for the tuition deduction, approximately 96% send their children to religious schools. [n3] Parents who send their children to free public schools are simply ineligible to obtain the full benefit of the deduction except in the unlikely event that they buy $700 worth of pencils, notebooks, and bus rides for their school-age children. Yet parents who pay at least $700 in tuition to nonpublic, sectarian schools can claim the full deduction even if they incur no other educational expenses.
In this case, it is undisputed that well over 90% of the children attending tuition-charging schools in Minnesota are enrolled in sectarian schools. History and experience likewise instruct us that any generally available financial assistance for elementary and secondary school tuition expenses mainly will further religious education, because the majority of the schools which charge tuition are sectarian. Cf. Nyquist, 413 U.S. at 785; Lemon v. Kurtzman, 403 U.S. at 628-630 (Douglas, J., concurring). Because Minnesota, like every other State, is committed to providing free public education, tax assistance for tuition payments inevitably redounds to the benefit of nonpublic, sectarian schools and parents who send their children to those schools.
The majority also asserts that the Minnesota statute is distinguishable from the statute struck down in Nyquist in another respect: the tax benefit available under Minnesota law is a "genuine tax deduction," whereas the New York law provided a benefit which, while nominally a deduction, also had features of a "tax credit." Ante at 396, and n. 6. Under the Minnesota law, the amount of the tax benefit varies directly with the amount of the expenditure. Under the New York law, the amount of deduction was not dependent upon the amount actually paid for tuition, but was a predetermined amount which depended on the tax bracket of each taxpayer. The deduction was designed to yield roughly the same amount of tax "forgiveness" for each taxpayer.
This is a distinction without a difference. Our prior decisions have rejected the relevance of the majority's formalistic distinction between tax deductions and the tax benefit at issue in Nyquist. See Byrne v. Public Funds for Public Schools, 442 U.S. 907 (1979), summarily aff'g 590 F.2d 514 (CA3); Grit v. Wolman, 413 U.S. 901 (1973), summarily aff'g Kosydar v. Wolman, 353 F.Supp. 744 (SD Ohio 1972). [n5] [p412] The deduction afforded by Minnesota law was "designed to yield a [tax benefit] in exchange for performing a specific act which the State desires to encourage." Nyquist, supra, at 789. Like the tax benefit held impermissible in Nyquist, the tax deduction at issue here concededly was designed to "encourag[e] desirable expenditures for educational purposes." Ante at 396. Of equal importance, as the majority also concedes, the "economic consequenc[e]" of these programs is the same, ante at 397, n. 6, for in each case, the "financial assistance provided to parents ultimately has an economic effect comparable to that of aid given directly to the schools." Ante at 399. See Walz v. Tax Comm'n, 397 U.S. 664, 699 (1970) (opinion of Harlan, J.). It was precisely the substantive impact of the financial support, and not its particular form, that rendered the programs in Nyquist and Sloan [p413] v. Lemon unconstitutional. See Nyquist, supra, at 790-791, 794; Sloan v. Lemon, 413 U.S. at 832.
bears less resemblance to the arrangement struck down in Nyquist than it does to assistance programs upheld in our prior decisions and those discussed with approval in Nyquist.
Ante at 394. One might as well say that a tangerine bears less resemblance to an orange than to an apple. The two cases relied on by the majority, Board of Education v. Allen, 392 U.S. 236 (1968), and Everson v. Board of Education, 330 U.S. 1 (1947), are inapposite today for precisely the same reasons that they were inapposite in Nyquist.
is quite unlike the sort of "indirect" and "incidental" benefits that flowed to sectarian schools from programs aiding all parents by supplying bus transportation and secular textbooks for their children. Such benefits were carefully restricted to the purely secular side of church-affiliated institutions, and provided no special aid for those who had chosen to support religious schools. Yet such aid approached the "verge" of the constitutionally impermissible.
Sloan v. Lemon, supra, at 832 (latter emphasis added).
In my view, Minnesota's tax deduction for the cost of textbooks and other instructional materials is also constitutionally infirm. The majority is simply mistaken in concluding that a tax deduction, unlike a tax credit or a direct grant to parents, promotes religious education in a manner that is only "attenuated." Ante at 399, 400. A tax deduction has a primary effect that advances religion if it is provided to offset expenditures which are not restricted to the secular activities of parochial schools.
"[t]he secular education those schools provide goes hand in hand with the religious mission that is the only reason for the schools' existence."
In Wolman v. Walter, 433 U.S. at 249-250, we concluded that precisely the same impermissible effect results when the instructional materials are loaned to the pupil or his parent, rather than directly to the schools. We stated that "it would exalt form over substance if this distinction were found to justify a result different from that in Meek." Id. at 250. It follows that a tax deduction to offset the cost of purchasing instructional materials for use in sectarian schools, like a loan of such materials to parents, "necessarily results in aid to the sectarian school enterprise as a whole," and is therefore a "substantial advancement of religious activity" that "constitutes an impermissible establishment of religion." Meek v. Pittenger, supra, at 366.
the processes of secular and religious training are so intertwined that secular textbooks furnished to students by the public [will always be] instrumental in the teaching of religion.
392 U.S. at 248. This basis for distinguishing secular instructional materials and secular textbooks is simply untenable, and is inconsistent with many of our more recent decisions concerning state aid to parochial schools. See Wolman v. Walter, 433 U.S. at 257-258 (MARSHALL, J., concurring in part and dissenting in part); id. at 264-266 (STEVENS, J., concurring in part and dissenting in part); Meek v. Pittenger, supra, at 378 (BRENNAN, J., concurring in part and dissenting in part).
There can be little doubt that the State of Minnesota intended to provide, and has provided, "[s]ubstantial aid to the educational function of [church-related] schools," and that the tax deduction for tuition and other educational expenses "necessarily results in aid to the sectarian school enterprise as a whole." Meek v. Pittenger, supra, at 366. It is beside the point that the State may have legitimate secular reasons for providing such aid. In focusing upon the contributions made by church-related schools, the majority has lost sight of the issue before us in this case.
The sole question is whether state aid to these schools can be squared with the dictates of the Religion Clauses. Under our system, the choice has been made that government is to be entirely excluded from the area of religious instruction. . . . The Constitution decrees that religion must be a private matter for the individual, the family, and the institutions of private choice, and that, while some involvement and entanglement are inevitable, lines must be drawn.
Lemon v. Kurtzman, 403 U.S. at 625.
As we noted in Nyquist, it is "firmly established" that a statute may impermissibly advance religion "even though it does not aid one religion more than another, but merely benefits all religions alike." 413 U.S. at 771. See, e.g., Wolman v. Walter, 433 U.S. 229, 248-254 (1977); Meek v. Pittenger, 421 U.S. 349, 364-366 (1975).
Even if the Minnesota statute allowed parents of public school students to deduct expenses that were likely to be equivalent to the tuition expenses of private school students, it would still be unconstitutional. Insofar as the Minnesota statute provides a deduction for parochial school tuition, it provides a benefit to parochial schools that furthers the religious mission of those schools. Nyquist makes clear that the State may not provide any financial assistance to parochial schools unless that assistance is limited to secular uses. 413 U.S. at 780-785.
Indeed, in this respect the Minnesota statute has an even greater tendency to promote religious education than the New York statute struck down in Nyquist, since the percentage of private schools that are nonsectarian is far greater in New York than in Minnesota.
the direct loan of instructional material and equipment has the unconstitutional primary effect of advancing religion because of the predominantly religious character of the schools benefiting from the Act.
of the 1,320 nonpublic schools in Pennsylvania that . . . qualify for aid under Act 195, more than 75% are church-related or religiously affiliated educational institutions.
during the 1974-1975 school year, there were 720 chartered nonpublic schools in Ohio. Of these, all but 29 were sectarian. More than 96% of the nonpublic enrollment attended sectarian schools, and more than 92% attended Catholic schools.
In Byrne v. Public Funds for Public Schools, we summarily affirmed a decision striking down a program of tax deductions. The amount of deduction was fixed at $1,000 for each dependent attending a tuition-charging nonpublic school. This decision makes clear that the constitutionality of a tax benefit does not turn on whether the benefit is in the form of a deduction from gross income or a tax "credit."
In Grit v. Wolman, we summarily affirmed a decision invalidating a system of tax credits for nonpublic school parents in which the amount of the credit depended on the amount of tuition paid. This decision demonstrates that it is irrelevant whether the amount of a tax benefit is proportionate to the amount of tuition paid or is simply an arbitrary sum. The Court's affirmance of the result in each of these cases was a "decision on the merits, entitled to precedential weight." Meek v. Pittenger, supra, at 366-367, n. 16.
The deduction at issue in this case does differ from the tax benefits in Nyquist and our other prior cases in one respect: by its very nature, the deduction embodies an inherent limit on the extent to which a State may subsidize religious education. Unlike a tax credit, which may wholly subsidize the cost of religious education if the size of the credit is sufficiently large, or a tax deduction of an arbitrary sum, a deduction of tuition payments from adjusted gross income can never "provide a basis for . . . complete subsidization of . . . religious schools." Nyquist, 413 U.S. at 782, n. 38 (emphasis in original). See also id. at 779, 787, n. 44. Nyquist made clear, however, that absolutely no subsidization is permissible unless it is restricted to the purely secular functions of those schools. See, e.g., id. at 777-779, 787-788.
For similar reasons, I would hold that the deduction for transportation expenses is constitutional only insofar as it relates to the costs of traveling between home and school. See Wolman v. Walter, 433 U.S. at 252-255 (reimbursement of nonpublic schools for field trip transportation impermissibly fosters religion because the nonpublic schools control the timing, frequency, and destination of the trips, which, for sectarian schools, are an integral part of the sectarian education). I would therefore reverse the judgment of the Court of Appeals and remand for a determination whether the insignificant deductions that remain -- e.g., deductions for transportation between home and school and for pencils and notebooks -- are severable from the other deductions.