author:
Mr. Justice Powell
      Mr. Chief Justice Burger,

text:
    IN RE GRIFFITHS
    No. 71-1336.
    Argued January 9, 1973 —
    Decided June 25, 1973
    Powell, J., delivered the opinion of the Court, in which Douglas, BrenNAN, Stewart, White, Marshall, and BlackmuN, JJ., joined. Burger, C. J., filed a dissenting opinion, in which RehNQUist, J., joined, post, p. 730. RehNQUist, J., filed a dissenting opinion, ante, p. 649.

      R. David Brolles argued the cause for appellant. With him on the brief were Melvin L. Wulf and Joel M. Gora.

      George R. Tiernan argued the cause and filed a brief for the State Bar Examining Committee of Connecticut.

        Louis J. Lefkowitz, pro se, Samuel A. Hirshowitz, First Assistant Attorney General, and Daniel M. Cohen, Assistant Attorney General, filed a brief for the Attorney General of New York as amicus curiae urging affirmance.

   Mr. Justice Powell

delivered the opinion of the Court.

This case presents a novel question as to the constraints imposed by the Equal Protection Clause of the Fourteenth Amendment on the qualifications which a State may require for admission to the bar. Appellant, Fre Le Poole Griffiths, is a citizen of the Netherlands who came to the United States in 1965, originally as a visitor. In 1967 she married a citizen of the United States and became a resident of Connecticut. After her graduation from law school, she applied in 1970 for permission to take the Connecticut bar examination. The County Bar Association found her qualified in all respects save that she was not a citizen of the United States as required by Rule 8 (1) of the Connecticut Practice Book (1963), and on that account refused to allow her to take the examination. She then sought judicial relief, asserting that the regulation was unconstitutional but her claim was rejected, first by the Superior Court and ultimately by the Connecticut Supreme Court. 162 Conn. 249, 294 A. 2d 281 (1972). We noted probable jurisdiction, 406 U. S. 966 (1972), and now hold that the rule unconstitutionally discriminates against resident aliens.

I

We begin by sketching the background against which the State Bar Examining Committee attempts to justify the total exclusion of aliens from the practice of law. From its inception, our Nation welcomed and drew strength from the immigration of aliens. Their contributions to the social and economic life of the country were self-evident, especially during the periods when the demand for human resources greatly exceeded the native supply. This demand was by no means limited to the unskilled or the uneducated. In 1873, this Court noted that admission to the practice of law in the courts of a State

“in no sense depends on citizenship of the United States. It has not, as far as we know, ever been made in any State, or in any case, to depend on citizenship at all. Certainly many prominent and distinguished lawyers have been admitted to practice, both in the State and Federal courts, who were not citizens of the United States or of any State.” Bradwell v. State, 16 Wall. 130, 139.

But shortly thereafter, in 1879, Connecticut established the predecessor to its present rule totally excluding aliens from the practice of law. 162 Conn., at 253, 294 A. 2d, at 283. In subsequent decades, wide-ranging restrictions for the first time began to impair significantly the efforts of aliens to earn a livelihood in their chosen occupations.

In the face of this trend, the Court nonetheless held in 1886 that a lawfully admitted resident alien is a “person” within the meaning of the Fourteenth Amendment’s directive that a State must not “deny to any person within its jurisdiction the equal protection of the laws.” Yick Wo v. Hopkins, 118 U. S. 356, 369. The decision in Yick Wo invalidated a municipal ordinance regulating the operation of laundries on the ground that the ordinance was discriminatorily enforced against Chinese operators. Some years later, the Court struck down an Arizona statute requiring employers of more than five persons to employ at least 80% “qualified electors or native-born citizens of the United States or some subdivision thereof.” Truax v. Raich, 239 U. S. 33, 35 (1915). As stated for the Court by Mr. Justice Hughes:

“It requires no argument to show that the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the [Fourteenth] Amendment to secure. [Citations omitted.] If this could be refused solely upon the ground of race or nationality, the prohibition of the denial to any person of the equal protection of the laws would be a barren form of words.” Id., at 41.

To be sure, the course of decisions protecting the employment rights of resident aliens has not been an unswerving one. In Clarke v. Deckebach, 274 U. S. 392 (1927), the Court was faced with a challenge to a city ordinance prohibiting the issuance to aliens of licenses to operate pool and billiard rooms. Characterizing the business as one having “harmful and vicious tendencies,” the Court found no constitutional infirmity in the ordinance:

“It was competent for the city to make such a choice, not shown to be irrational, by excluding from the conduct of a dubious business an entire class rather than its objectionable members selected by-more empirical methods.” Id., at 397.

This easily expandable proposition supported discrimination against resident aliens in a wide range of occupations.

But the doctrinal foundations of Clarke were undermined in Takahashi v. Fish & Game Comm’n, 334 U. S. 410 (1948), where, in ruling unconstitutional a California statute barring issuance of fishing licenses to persons “ineligible to citizenship,” the Court stated that “the power of a state to apply its laws exclusively to its alien inhabitants as a class is confined within narrow limits.” Id., at 420. Indeed, with the issue squarely before it in Graham v. Richardson, 403 U. S. 365 (1971), the Court concluded:

“ [Classifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny. Aliens as a class are a prime example of a 'discrete and insular’ minority (see United States v. Carolene Products Co., 304 U. S. 144, 152-153, n. 4 (1938)) for whom such heightened judicial solicitude is appropriate.” Id., at 372. (Footnotes omitted.)

The Court has consistently emphasized that a State which adopts a suspect classification “bears a heavy burden of justification,” McLaughlin v. Florida, 379 U. S. 184, 196 (1964), a burden which, though variously formulated, requires the State to meet certain standards of proof. In order to justify the use of a suspect classification, a State must show that its purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is “necessary ... to the accomplishment” of its purpose or the safeguarding of its interest.

Resident aliens, like citizens, pay taxes, support the economy, serve in the Armed Forces, and contribute in myriad other ways to our society. It is appropriate that a State bear a heavy burden when it deprives them of employment opportunities.

II

We hold that the Committee, acting on behalf of the State, has not carried its burden. The State’s ultimate interest here implicated is to assure the requisite qualifications of persons licensed to practice law. It is undisputed that a State has a constitutionally permissible and substantial interest in determining whether an applicant possesses “ 'the character and general fitness requisite for an attorney and counselor- at-law.’ ” Law Students Research Council v. Wadmond, 401 U. S. 154, 159 (1971). See also Konigsberg v. State Bar, 366 U. S. 36, 40-41 (1961); Schware v. Board of Bar Examiners, 353 U. S. 232, 239 (1957). But no question is raised in this case as to appellant’s character or general fitness. Rather, the sole basis for disqualification is her status as a resident alien.

The Committee defends Rule 8 (l)’s requirement that applicants for admission to the bar be citizens of the United States on the ground that the special role of the lawyer justifies excluding aliens from the practice of law. In Connecticut, the Committee points out, the maxim that a lawyer is an “officer of the court” is given concrete meaning by a statute which makes every lawyer a “commissioner of the Superior Court.” As such, a lawyer has authority to “sign writs and subpoenas, take recognizances, administer oaths and take depositions and acknowledgements of deeds.” Conn. Gen. Stat. Rev. § 51-85. In the exercise of this authority, a Connecticut lawyer may command the assistance of a county sheriff or a town constable. Conn. Gen. Stat. Rev. § 52-90. Because of these and other powers, the Connecticut Supreme Court commented that

“[t]he courts not only demand [lawyers’] loyalty, confidence and respect but also require them to function in a manner which will foster public confidence in the profession and, consequently, the judicial system.” 162 Conn., at 262-263, 294 A. 2d, at 287.

In order to establish a link between citizenship and the powers and responsibilities of the lawyer in Connecticut, the Committee contrasts a citizen’s undivided allegiance to this country with a resident alien’s possible conflict of loyalties. From this, the Committee concludes that a resident alien lawyer might in the exercise of his functions ignore his responsibilities to the courts or even his clients in favor of the interest of a foreign power.

We find these arguments unconvincing. It in no way denigrates a lawyer’s high responsibilities to observe that the powers “to sign writs and subpoenas, take recognizances, [and] administer oaths” hardly involve matters of state policy or acts of such unique responsibility as to entrust them only to citizens. Nor do we think that the practice of law offers meaningful opportunities adversely to affect the interest of the United States. Certainly the Committee has failed to show the relevance of citizenship to any likelihood that a lawyer will fail to protect faithfully the interest of his clients.

Nor would the possibility that some resident aliens are unsuited to the practice of law be a justification for a wholesale ban.

“Even in applying permissible standards, officers of a State cannot exclude an applicant when there is no basis for their finding that he fails to meet these standards, or when their action is invidiously discriminatory. Cf. Yick Wo v. Hopkins, 118 U. S. 356.” Schware v. Board of Bar Examiners, 353 U. S., at 239.

This constitutional warning is especially salient where, as here, a State’s bar admission standards make explicit use of a suspect classification. Although, as we have acknowledged, a State does have a substantial interest in the qualifications of those admitted to the practice of law, the arguments advanced by the Committee fall short of showing that the classification established by Rule 8 (1) of the Connecticut Practice Book (1963) is necessary to the promoting or safeguarding of this interest.

Connecticut has wide freedom to gauge on a case-by-case basis the fitness of an applicant to practice law. Connecticut can, and does, require appropriate training and familiarity with Connecticut law. Apart from such tests of competence, it requires a new lawyer to take both an “attorney’s oath” to perform his functions faithfully and honestly and a “commissioner’s oath” to “support

the constitution of the United States, and the constitution of the state of Connecticut.” Appellant has indicated her willingness and ability to subscribe to the substance of both oaths, and Connecticut may quite properly conduct a character investigation to insure in any given case “that an applicant is not one who 'swears to an oath pro forma while declaring or manifesting his disagreement with or indifference to the oath.’ Bond v. Floyd, 385 U. S. 116, 132.” Law Students Research Council v. Wadmond, 401 U. S., at 164. Moreover, once admitted to the bar, lawyers are subject to continuing scrutiny by the organized bar and the courts. In addition to discipline for unprofessional conduct, the range of post-admission sanctions extends from judgments for contempt to criminal prosecutions and disbarment. In sum, the Committee simply has not established that it must exclude all aliens from the practice of law in order to vindicate its undoubted interest in high professional standards.

Ill

In its brief, the Examining Committee makes another, somewhat different argument in support of Rule 8 (1). Its thrust is not that resident aliens lack the attributes necessary to maintain high standards in the legal profession, but rather that lawyers must be citizens almost as a matter of definition. The implication of this analysis is that exclusion of aliens from the legal profession is not subject to any scrutiny under the Equal Protection Clause.

The argument builds upon the exclusion of aliens from the franchise in all 50 States and their disqualification under the Constitution from holding office as President, Art. 2, § 1, cl. 5, or as a member of the House of Representatives, Art. 1, § 2, cl. 2, or of the Senate, Art. 1, § 3, cl. 3. These and numerous other federal and statutory and constitutional provisions reflect, the Committee contends, a pervasive recognition that “participation in the government structure as voters and office holders” is inescapably an aspect of citizenship. Brief for Appellee 11. Offered in support of the claim that the lawyer is an “office holder” in this sense is an enhanced version of the proposition, discussed above, that he is an “officer of the court.” Specifically, the Committee states that the lawyer “is an officer of the Court who acts by and with the authority of the State” and is entrusted with the “exercise of actual government power.” Id., at 5.

We note at the outset that this argument goes beyond the opinion of the Connecticut Supreme Court, which recognized that a lawyer is not an officer in the ordinary sense. 162 Conn., at 254, 294 A. 2d, at 283. This comports with the view of the Court expressed by Mr. Justice Black in Cammer v. United States, 350 U. S. 399 (1956):

“It has been stated many times that lawyers are ‘officers of the court.’ One of the most frequently repeated statements to this effect appears in Ex parte Garland, 4 Wall. 333, 378. The Court pointed out there, however, that an attorney was not an ‘officer’ within the ordinary meaning of that term. Certainly nothing that was said in Ex parte Garland or in any other case decided by this Court places attorneys in the same category as marshals, bailiffs, court clerks or judges. Unlike these officials a lawyer is engaged in a private profession, important though it be to our system of justice. In general he makes his own decisions, follows his own best judgment, collects his own fees and runs his own business. The word 'officer’ as it has always been applied to lawyers conveys quite a different meaning from the word 'officer’ as applied to people serving as officers within the conventional meaning of that term.” Id., at 405 (footnote omitted).

Lawyers do indeed occupy professional positions of responsibility and influence that impose on them duties correlative with their vital right of access to the courts. Moreover, by virtue of their professional aptitudes and natural interests, lawyers have been leaders in government throughout the history of our country. Yet, they are not officials of government by virtue of being lawyers. Nor does the status of holding a license to practice law place one so close to the core of the political process as to make him a formulator of government policy.

We hold that §8(1) violates the Equal Protection Clause. The judgment of the Connecticut Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

[For dissenting opinion of Mr. Justice Rehnquist, see ante, p. 649.]

Mr. Chief Justice Burger,

with whom Mr. Justice Rehnquist joins, dissenting.

I agree generally with Mr. Justice Rehnquist’s dissent and add a few observations.

In the rapidly shrinking “one world” we live in there are numerous reasons why the States might appropriately consider relaxing some of the restraints on the practice of professions by aliens. The fundamental factor, however, is that the States reserved, among other powers, that of regulating the practice of professions within their own borders. If that concept has less validity now than in the 18th century when it was made part of the “bargain” to create a federal union, it is nonetheless part of that compact.

A large number of American nationals are admitted to the practice of law in more than a dozen countries; this will expand as world trade enlarges. But the question for the Court is not what is enlightened or sound policy but rather what the Constitution and its Amendments provide; I am unable to accord to the Fourteenth Amendment the expansive reading the Court gives it.

In recent years the Court, in a rather casual way, has articulated the code phrase “suspect classification” as though it embraced a reasoned constitutional concept. Admittedly, it simplifies judicial work as do “per se” rules, but it tends to stop analysis while appearing to suggest an analytical process.

Much as I agree with some aspects of the policy implicit in the Court’s holding, I am bound — if I apply the Constitution as its words and intent speak to me — to reject the good policy the Court now adopts.

I am unwilling to accept what seems to me a denigration of the posture and role of a lawyer as an “officer of the court.” It is that role that a State is entitled to rely on as a basis for excluding aliens from the practice of law. By virtue of his admission a lawyer is granted what can fairly be called a monopoly of sorts; he is granted a license to appear and try cases; he can cause witnesses to drop their private affairs and be called for depositions and other pretrial processes that, while subject to the ultimate control of the court, are conducted by lawyers outside courtrooms; the enormous power of cross-examination of witnesses is granted exclusively to lawyers. Inherent in these large powers is the ability to compel answers subject, of course, to such limiting restraints as the Fifth Amendment and rules of evidence. In most States a lawyer is authorized to issue subpoenas commanding the presence of persons and even the production of documents under certain circumstances. The broad monopoly granted to lawyers is the authority to practice a profession and by virtue of that to do things other citizens may not lawfully do. In the common-law tradition the lawyer becomes the attorney — the agent— for a client only by virtue of his having been first invested with power by the State, usually by a court. The lawyer’s obligations as an officer of the court permit the court to call on the lawyer to perform duties which no court could order citizens generally to do, including the obligation to observe codes of ethical conduct not binding on the public generally.

The concept of a lawyer as an officer of the court and hence part of the official mechanism of justice in the sense of other court officers, including the judge, albeit with different duties, is not unique in our system but it is a significant feature of the lawyer’s role in the common law. This concept has sustained some erosion over the years at the hands of cynics who view the lawyer much as the “hired gun” of the Old West. In less flamboyant terms the lawyer in his relation to the client came to be called a “mouthpiece” in the gangland parlance of the 1930’s. Under this bleak view of the profession the lawyer, once engaged, does his client’s bidding, lawful or not, ethical or not.

Whatever the erosion of the officer-of-the-court role, the overwhelming proportion of the legal profession rejects both the denigrated role of the advocate and counselor that renders him a lackey to the client and the alien idea that he is an agent of government. See American Bar Association Project on Standards for Criminal Justice, The Prosecution Function and the Defense Function § 1.1 (Approved Draft 1971).

The role of a lawyer as an officer of the court predates the Constitution; it was carried over from the English system and became firmly embedded in our tradition. It included the obligation of first duty to client. But that duty never was and is not today an absolute or unqualified duty. It is a first loyalty to serve the client’s interest but always within — never outside — the law, thus placing a heavy personal and individual responsibility on the lawyer. That this is often unenforceable, that departures from it remain undetected, and that judges and bar associations have been singularly tolerant of misdeeds of their brethren, renders it no less important to a profession that is increasingly crucial to our way of life. The very independence of the lawyer from the government on the one hand and client on the other is what makes law a profession, something apart from trades and vocations in which obligations of duty and conscience play a lesser part. It is as crucial to our system of justice as the independence of judges themselves.

The history of the legal profession is filled with accounts of lawyers who risked careers by asserting their independent status in opposition to popular and governmental attitudes, as John Adams did in Boston to defend the soldiers accused in what we know in our folklore as the “Boston Massacre.” To that could be added the lawyers who defended John Peter Zenger and down to lawyers in modern times in cases such as Johnson v. Zerbst, 304 U. S. 458 (1938). The crucial factor in all these cases is that the advocates performed their dual role — officer of the court and advocate for a client— strictly within and never in derogation of high ethical standards. There is thus a reasonable, rational basis for a State to conclude that persons owing first loyalty to this country will grasp these traditions and apply our concepts more than those who seek the benefits of American citizenship while declining to accept the burdens of citizenship in this country.

In some countries the legal system is so structured that all lawyers are literally agents of government and as such bound to place the interests of government over those of the client. That concept is so alien to our system with an independent bar that I find it difficult to see how nationals of such a country, inculcated with those ideas and at the same time unwilling to accept American citizenship, could be properly integrated into our system. At the very least we ought not stretch the Fourteenth Amendment to force the States to accept any national of any country simply because of a recital of the required oath and passing of the bar examination.

Since the Court now strikes down a power of the States accepted as fundamental since 1787, even if States sometimes elected not to exercise it, cf. Bradwell v. State, 16 Wall. 130 (1873), the States may well move to adopt, by statute or rule of court, a reciprocal proviso, familiar in other contexts; under such a reciprocal treatment of applicants a State would admit to the practice of law the nationals of such other countries as admit American citizens to practice. I find nothing in the core holding of Zschernig v. Miller, 389 U. S. 429 (1968), to foreclose state adoption of such reciprocal provisions. See Clark v. Allen, 331 U. S. 503 (1947).

       Appellant is eligible for naturalization by reason of her marriage to a citizen of the United States and residence in the United States for more than three years, 8 U. S. C. § 1430 (a). She has not filed a declaration of intention to become a citizen of the United States, 8 U. S. C. § 1445 (f), and has no present intention of doing so. Brief for Appellant 4. In order to become a citizen, appellant would be required to renounce her citizenship of the Netherlands. 8 U. S. C. § 1448 (a).

       The rules are promulgated by the judges of the Superior Court, Conn. Gen. Stat. Rev. § 51-80, and administered by the Connecticut Bar Examining Committee. The position of the State in this case is represented by that Committee.

       Because we find that the rule denies equal protection, we do not reach appellant's other claims.

       We do not, of course, rely on Bradwell to establish that admission to the bar may not be made to depend on citizenship. The holding of that case was simply that the right to practice law is not a “privilege or immunity” within the meaning of the Fourteenth Amendment.

       See J. Higham, Strangers in the Land 46, 161, 183 (1963). The full scale of restrictions imposed on the work opportunities of aliens in 1946 is shown by M. Konvitz, The Alien and the Asiatic in American Law 190-211 (1946).

       See also People v. Crane, 214 N. Y. 154, 108 N. E. 427, aff’d sub nom. Crane v. New York, 239 U. S. 195 (1915); but see Graham v. Richardson, 403 U. S. 365, 374 (1971).

       See lower court cases collected at Note, Constitutionality of Restrictions on Aliens’ Right to Work, 57 Col. L. Rev. 1012, 1021-1023 (1957) (restrictions ranging from the vending of soft drinks to the selling of lightning rods).

       Discrimination or segregation for its own sake is not, of course, a constitutionally permissible purpose. E. g., Brown v. Board of Education, 347 U. S. 483, 495 (1954); McLaughlin v. Florida, 379 U. S. 184 (1964).

       The state interest required has been characterized as "overriding,” id., at 196; Loving v. Virginia, 388 U. S. 1, 11 (1967); “compelling,” Graham v. Richardson, supra, at 375; “important,” Dunn v. Blumstein, 405 U. S. 330, 343 (1972), or "substantial,” ibid. We attribute no particular significance to these variations in diction.

        McLaughlin v. Florida, supra, at 196; cf. Loving v. Virginia, supra, at 11.

       We did not decide in Graham nor do we decide here whether special circumstances, such as armed hostilities between the United States and the country of which an alien is a citizen, would justify the use of a classification based on alienage.

       Appellant denies that this was indeed the State’s purpose in requiring citizenship for the practice of law, noting that citizenship hs also required of practitioners in other fields, including hairdressers and cosmeticians, Conn. Gen. Stat. Rev. §20-250, architects, Conn. Gen. Stat. Rev. § 20-291, and sanitarians, Conn. Gen. Stat. Rev. § 20-361. Because we dispose of the case on other grounds, we do not reach this claim.

       In this connection, Mr. Justice Frankfurter wrote:
      “From a profession charged with such responsibilities there must be exacted those qualities of truth-speaking, of a high sense of honor, of granite discretion, of the strictest observance of fiduciary responsibility, that have, throughout the centuries, been compendiously described as ‘moral character.’ ” Schware v. Board of Bar Examiners, 353 U. S. 232, 247 (1957) (concurring opinion).

       Lawyers frequently represent foreign countries and the nationals of such countries in litigation in the courts of the United States, as well as in other matters in this country. In such representation, the duty of the lawyer, subject to his role as an “officer of the court,” is to further the interests of his clients by all lawful means, even when those interests are in conflict with the interests of the United States or of a State. But this representation involves no conflict of interest in the invidious sense. Rather, it casts the lawyer in his honored and traditional role as an authorized but independent agent acting to vindicate the legal rights of a client, whoever it may be. It is conceivable that an alien licensed to practice law in this country could find himself in a position in which he might be called upon to represent his country of citizenship against the United States in circumstances in which there may be a conflict between his obligations to the two countries. In such rare situations, an honorable person, whether an alien or not, would decline the representation.

       The text of the attorney’s oaths is as follows:
      “You solemnly swear that you will do no falsehood, nor consent to any to be done in court, and, if you know of any to be done, you will give information thereof to the judges, or one of them, that it may be reformed; you will not wittingly, or willingly promote, sue or cause to be sued, any false or unlawful suit, or give aid, or consent, to the same; you will delay no man for lucre or malice; but will exercise the office of attorney, within the court wherein you may practice, according to the best of your learning and discretion, and with fidelity, as well to the court as to your client, so help you God.” Jurisdictional Statement 44.

       There is no question as to the validity of requiring an applicant, as a precondition to admission to the bar, to take such an oath. Law Students Research Council v. Wadmond, 401 U. S. 154, 161-164 (1970).

       Because the commissioner’s oath is an oath to “support the constitution of the United States, and the constitution of the State of Connecticut, so long as you continue a citizen thereof,” Conn. Gen. Stat. Rev. §1-25 (emphasis added), appellant could not of course take the oath as prescribed. To the extent that the oath reiterates Rule 8 (l)’s citizenship requirement, it shares the same constitutional defects when required of prospective members of the bar.

       We find no merit in the contention that only citizens can in good conscience take an oath to support the Constitution. We note that all persons inducted into the Armed Services, including resident aliens, are required by 10 U. S. C. § 502 to take the following oath:
      “I,-, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.”
      If aliens can take this oath when the Nation is making use of their services in the national defense, resident alien applicants for admission to the bar surely cannot be precluded, as a class, from taking an oath to support the Constitution on the theory that they are unable to take the oath in good faith.

       See, e. g., Doolittle v. Clark, 47 Conn. 316 (1879). Apart from the courts, the profession itself has long subjected its members to discipline under codes or canons of professional ethics. As early as 1908 the American Bar Association adopted 32 Canons of Professional Ethics. In 1970, following several years of study and reexamination, the House of Delegates of the American Bar Association approved a new Code of Professional Responsibility, which provides detailed ethical prescriptions as well as a comprehensive code of disciplinary rules. The ABA Code of Professional Responsibility has since been approved and adopted in the District of Columbia and in 46 States, including Connecticut.

       Nothing in our rules prohibits from admission to practice in this Court resident aliens who have been admitted to practice “for three years past in the highest court of a State, Territory, District, Commonwealth, or Possession” and whose “private and professional characters shall appear to be good.” Rule 5, Rules of the Supreme Court.

       Because the Committee has failed to establish that the lawyer is an “office holder,” we need not and do not decide whether there is merit in the general argument and, if so, to what offices it would apply.

       In a thoughtful opinion, the California Supreme Court unanimously declared unconstitutional a similar California rule. Raffaelli v. Committee of Bar Examiners, 7 Cal. 3d 288, 496 P. 2d 1264 (1972). See also Application of Park, 484 P. 2d 690 (Alaska 1971).


source: Caselaw Access Project

author: Me. Justice Powell Mr. Justice Brennan,

license: Public Domain

text:
    HUNT v. McNAIR, GOVERNOR OF SOUTH CAROLINA, et al.
    No. 71-1523.
    Argued February 21, 1973 —
    Decided June 25, 1973

      Powell, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, BlackmuN, and Rehnquist, JJ., joined. BreNnan, J., filed a dissenting opinion, in which Douglas and Marshall, JJ., joined, post, p. 749.
    ■ Robert McC. Figg, Jr., argued the cause for appellant. With him on the brief was Thomas B. Bryant, Jr.

      Huger Sinkler argued the cause for appellees. With him on the brief were Daniel R. McLeod, Attorney General of South Carolina, and Theodore B. Guerard

        George F. Kugler, Jr., Attorney General, Stephen Skillman, Assistant Attorney General, and Charles R. Parker and Lewis M. Popper, Deputy Attorneys General, filed a brief for the State of New Jersey as amicus curiae urging affirmance.

   Me. Justice Powell

delivered the opinion of the Court.

Appellant, a South Carolina taxpayer, brought this action to challenge the South Carolina Educational Facilities Authority Act (the Act), S. C. Code Ann. § 22-41 et seq. (Supp. 1971), as violative of the Establishment Clause of the First Amendment insofar as it authorizes a proposed financing transaction involving the issuance of revenue bonds for the benefit of the Baptist College at Charleston (the College). The trial court’s denial of relief was affirmed by the Supreme Court of South Carolina. 255 S. C. 71, 177 S. E. 2d 362 (1970). This Court vacated the judgment and remanded the case for reconsideration in light of the intervening decisions in Lemon v. Kurtzman, Earley v. DiCenso, and Robinson v. DiCenso, 403 U. S. 602 (1971); and Tilton v. Richardson, 403 U. S. 672 (1971). 403 U. S. 945 (1971). On remand, the Supreme Court of South Carolina adhered to its earlier position. 258 S. C. 97, 187 S. E. 2d 645 (1972). We affirm.

I

We begin by setting out the general structure of the Act. The Act established an Educational Facilities Authority (the Authority), the purpose of which is “to assist institutions for higher education in the construction, financing and refinancing of projects . . . ,” S. C. Code Ann. § 22-41.4 (Supp. 1971), primarily through the issuance of revenue bonds. Under the terms of the Act, a project may encompass buildings, facilities, site preparation, and related items, but may not include

“any facility used or to be used for sectarian instruction or as a place of religious worship nor any facility which is used or to be used primarily in connection with any part of the program of a school or department of divinity for any religious denomination.” S. C. Code Ann. § 22-41.2 (b) (Supp. 1971).

Correspondingly, the Authority is accorded certain powers over the project, including the powers to determine the fees to be charged for the use of the project and to establish regulations for its use. See infra, at 747-749.

While revenue bonds to be used in connection with a project are issued by the Authority, the Act is quite explicit that the bonds shall not be obligations of the State, directly or indirectly:

“Revenue bonds issued under the provisions of this chapter shall not be deemed to constitute a debt or liability of the State or of any political subdivision thereof or a pledge of the faith and credit of the State or of any such political subdivision, but shall be payable solely from the funds herein provided therefor from revenues. All such revenue bonds shall contain on the face thereof a statement to the effect that neither the State of South Carolina nor the Authority shall be obligated to pay the same or the interest thereon except from revenues of the project or the portion thereof for which they are issued and that neither the faith and credit nor the taxing power of the State of South Carolina or of any political subdivision thereof is pledged to the payment of the principal of or the interest on such bonds. The issuance of revenue bonds under the provisions of this chapter shall not directly or indirectly or contingently obligate the State or any political subdivision thereof to levy or to pledge any form of taxation whatever therefor or to make any appropriation for their payment.” S. C. Code Ann. §22-41.10 (Supp. 1971).

Moreover, since all of the expenses of the Authority must be paid from the revenues of the various projects in which it participates, S. C. Code Ann. § 22-41.5 (Supp. 1971), none of the general revenues of South Carolina is used to support a project.

On January 6, 1970, the College submitted to the Authority for preliminary approval an application for the issuance of revenue bonds. Under the proposal, the Authority would issue the bonds and make the proceeds available to the College for use in connection with a portion of its campus to be designated a project (the Project) within the meaning of. the Act. In return, the College would convey the Project, without cost, to the Authority, which would then lease the property so conveyed back to the College. After payment in full of the bonds, the Project would be reconveyed to the College. The Authority granted preliminary approval on January 16, 1970, 255 S. C., at 76, 177 S. E. 2d, at 365.

In its present form, the application requests the issuance of revenue bonds totaling $1,250,000, of which $1,050,000 would be applied to refund short-term financing of capital improvements and $200,000 would be applied to the completion of dining hall facilities. The advantage of financing educational institutions through a state-created authority derives from relevant provisions of federal and South Carolina state income tax laws which provide in effect that the interest on such bonds is not subject to income taxation. The income-tax-exempt status of the interest enables the Authority, as an instrumentality of the State, to market the bonds at a significantly lower rate of interest than the educational institution would be forced to pay if it borrowed the money by conventional private financing.

Because the College’s application to the Authority was a preliminary one, the details of the financing arrangement have not yet been fully worked out. But Rules and Regulations adopted by the Authority govern certain of its aspects. See Jurisdictional Statement, Appendix C, pp. 47-51. Every lease agreement between the Authority and an institution must contain a' clause

“obligating the Institution that neither the leased land, nor the facility located thereon, shall be used for sectarian instruction or as a place of religious worship, or in connection with any part of the program of a school or department of divinity of any religious denomination.” 258 S. C., at 101, 187 S. E. 2d, at 647.

To insure that this covenant is honored, each lease agreement must allow the Authority to conduct inspections, and any reconveyance to the College must contain a restriction against use for sectarian purposes. The Rules further provide that simultaneously with the execution of the lease agreement, the Authority and the trustee bank would enter into a Trust Indenture which would create, for the benefit of the bondholders, a foreclosable mortgage lien on the Project property including a mortgage on the “right, title and interest of the Authority in and to the Lease Agreement.” Jurisdictional Statement, Appendix C, p. 50.

Our consideration of appellant’s Establishment Clause claim extends only to the proposal as approved preliminarily with such additions as are contemplated by the Act, the Rules, and the decisions of the courts below.

II

As we reaffirm today in Committee for Public Education & Religious Liberty v. Nyquist, post, p. 756, the principles which govern our consideration of challenges to statutes as violative of the Establishment Clause are three:

“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.’ ” Lemon v. Kurtzman, 403 U. S., at 612-613.

With full recognition that these are no more than helpful signposts, we consider the present statute and the proposed transaction in terms of the three “tests”: purpose, effect, and entanglement.

A

The purpose of the statute is manifestly a secular one. The benefits of the Act are available to all institutions of higher education in South Carolina, whether or not having a religious affiliation. While a legislature’s declaration of purpose may not always be a fair guide to its true intent, appellant makes no suggestion that the introductory paragraph of the Act represents anything other than a good-faith statement of purpose:

“It is hereby declared that for the benefit of the people of the State, the increase of their commerce, welfare and prosperity and the improvement of their health and living conditions it is essential that this and future generations of youth be given the fullest opportunity to learn and to develop their intellectual and mental capacities; that it is essential that institutions for higher education within the State be provided with appropriate additional means to assist such youth in achieving the required levels of learning and development of their intellectual and mental capacities; and that it is the purpose of this chapter to provide a measure of assistance and an alternative method to enable institutions for higher education in the State to provide the facilities and structures which are sorely needed to accomplish the purposes of this chapter, all to the public benefit and good, to the extent and manner provided herein.” S. C. Code Ann. § 22.41 (Supp.1971).

The College and other private institutions of higher education provide these benefits to the State. As of the academic year 1969-1970, there were 1,548 students enrolled in the College, in addition to approximately 600 night students. Of these students, 95% are residents of South Carolina who are thereby receiving a college education without financial support from the State of South Carolina.

B

To identify “primary effect,” we narrow our focus from the statute as a whole to the only transaction presently before us. Whatever may be its initial appeal, the proposition that the Establishment Clause prohibits any program which in some manner aids an institution with a religious affiliation has consistently been rejected. E. g., Bradfield v. Roberts, 175 U. S. 291 (1899); Walz v. Tax Comm’n, 397 U. S. 664 (1970); Tilton v. Richardson, 403 U. S. 672 (1971). Stated another way, the Court has not accepted the recurrent argument that all aid is forbidden because aid to one aspect of an institution frees it to spend its other resources on religious ends.

Aid normally may be thought to have a primary effect of advancing religion when it flows to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission or when it funds a specifically religious activity in an otherwise substantially secular setting. In Tilton v. Richardson, supra, the Court refused to strike down a direct federal grant to four colleges and universities in Connecticut. Mr. Chief Justice Burger, for the plurality, concluded that despite some institutional rhetoric, none of the four colleges was pervasively sectarian, but held open that possibility for future cases:

“Individual projects can be properly evaluated if and when challenges arise with respect to particular recipients and some evidence is then presented to show that the institution does in fact possess these characteristics.” Id., at 682.

Appellant has introduced no evidence in the present case placing the College in such a category. It is true that the members of the College Board of Trustees are elected by the South Carolina Baptist Convention, that the approval of the Convention is required for certain financial transactions, and that the charter of the College may be amended only by the Convention. But it was likewise true of the institutions involved in Tilton that they were “governed by Catholic religious organizations.” Id., at 686. What little there is in the record concerning the College establishes that there are no religious qualifications for faculty membership or student admission, and that only 60% of the College student body is Baptist, a percentage roughly equivalent to the percentage of Baptists in that area of South Carolina. 255 S. C., at 85, 177 S. E. 2d, at 369. On the record in this case there is no basis to conclude that the College’s operations are oriented significantly towards sectarian rather than secular education.

Nor can we conclude that the proposed transaction will place the Authority in the position of providing aid to the religious as opposed to the secular activities of the College. The scope of the Authority’s power to assist institutions of higher education extends only to “projects,” and the Act specifically states that a project “shall not include” any buildings or facilities used for religious purposes. In the absence of evidence to the contrary, we must assume that all of the proposed financing and refinancing relates to buildings and facilities within a properly delimited project. It is not at all clear from the record that the portion of the campus to be conveyed by the College to the Authority and leased back is the same as that being financed, but in any event it too must be part of the Project and subject to the same prohibition against use for religious purposes. In addition, as we have indicated, every lease agreement must contain a clause forbidding religious use and another allowing inspections to enforce the agreement. For these reasons, we are satisfied that implementation of the proposal will not have the primary effect of advancing or inhibiting religion.

C

The final question posed by this case is whether under the arrangement there would be an unconstitutional degree of entanglement between the State and the College. Appellant argues that the Authority would become involved in the operation of the College both by inspecting the project to insure that it is not being used for religious purposes and by participating in the management decisions of the College.

The Court’s opinion in Lemon and the plurality opinion in Tilton are grounded on the proposition that the degree of entanglement arising from inspection of facilities as to use varies in large measure with the extent to which religion permeates the institution. In finding excessive entanglement, the Court in Lemon relied on the “substantial religious character of these church-related” elementary schools. 403 U. S., at 616. Mr. Chief Justice Burger’s opinion for the plurality in Tilton placed considerable emphasis on the fact that the federal aid there approved would be spent in a college setting:

“Since religious indoctrination is not a substantial purpose or activity of these church-related colleges and universities, there is less likelihood than in primary and secondary schools that religion will permeate the area of secular education.” 403 U. S., at 687.

Although Mr. Justice White saw no such clear distinction, he concurred in the judgment, stating:

“It is enough for me that . . . the Federal Government [is] financing a separable secular function of overriding importance in order to sustain the legislation here challenged.” 403 U. S., at 664.

A majority of the Court in Tilton, then, concluded that on the facts of that case inspection as to use did not threaten excessive entanglement. As we have indicated above, there is no evidence here to demonstrate that the College is any more an instrument of religious indoctrination than were the colleges and universities involved in Tilton.

A closer issue under our precedents is presented by the contention that the Authority could become deeply involved in the day-to-day financial and policy decisions of the College. The Authority is empowered by the Act:

“(g) [generally, to fix and revise from time to time and charge and collect rates, rents, fees and charges for the use of and for the services furnished or to be furnished by a project or any portion thereof and to contract with any person, partnership, association or corporation or other body public or private in respect thereof;
“(h) [t] o establish rules and regulations for the use of a project or any portion thereof and to designate a participating institution for higher education as its agent to establish rules and regulations for the use of a project undertaken for such participating institution for higher education. . . S. C. Code Ann. §22-41.4 (Supp. 1971).

These powers are sweeping ones, and were there a realistic likelihood that they would be exercised in their full detail, the entanglement problems with the proposed transaction would not be insignificant.

As the South Carolina Supreme Court pointed out, 258 S. C., at 107, 187 S. E. 2d, at 651, the Act was patterned closely after the South Carolina Industrial Revenue Bond Act, and perhaps for this reason appears to confer unnecessarily broad power and responsibility on the Authority. The opinion of that court, however, reflects a narrow interpretation of the practical operation of these powers:

“Counsel for plaintiff argues that the broad language of the Act causes the State, of necessity, to become excessively involved in the operation, management and administration of the College. We do not so construe the Act. . . . [T]he basic function of the Authority is to see . . . that fees are charged sufficient to meet the bond payments.” Id., at 108, 187 S. E. 2d, at 651.

As we read the College’s proposal, the Lease Agreement between the Authority and the College will place on the College the responsibility for making the detailed decisions regarding the government of the campus and the fees to be charged for particular services. Specifically, the proposal states that the Lease Agreement

“will unconditionally obligate the College (a) to pay sufficient rentals to meet the principal and interest requirements as they become due on such bonds, [and] (b) to impose an adequate schedule of charges and fees in order to provide adequate revenues with which to operate and maintain the said facilities and to make the rental payments . . . .” App. 18.

In short, under the proposed Lease Agreement, neither the Authority nor a trustee bank would be justified in taking action unless the College fails to make the prescribed rental payments or otherwise defaults in its obligations. Only if the College refused to meet rental payments or was unable to do so would the Authority or the trustee be obligated to take further action. In that event, the Authority or trustee might either foreclose on the mortgage or take a hand in the setting of rules, charges, and fees. It may be argued that only the former would be consistent with the Establishment Clause, but we do not now have that situation before us.

Ill

This case comes to us as an action for injunctive and declaratory relief to test the constitutionality of the Act as applied to a proposed — rather than an actual— issuance of revenue bonds. The specific provisions of the Act under which the bonds will be issued, the Rules and Regulations of the Authority, and the College’s proposal — all as interpreted by the South Carolina Supreme Court — confine the scope of the assistance to the secular aspects of this liberal arts college and do not foreshadow excessive entanglement between the State and religion. Accordingly, we affirm the holding of the court below that the Act is constitutional as interpreted and applied in this case.

Affirmed.

Mr. Justice Brennan,

with whom Mr. Justice Douglas and Mr. Justice Marshall join, dissenting.

The question presented in this case is whether South Carolina’s assistance to the Baptist College at Charleston under the South Carolina Educational Facilities Authority Act constitutes constitutionally impermissible aid by the State for this sectarian institution. The test to which I adhere for determining such questions is whether the arrangement between the State and the Baptist College is foreclosed under the Establishment Clause of the First Amendment as being among

“those involvements of religious with secular institutions which (a) serve the essentially religious activities of religious institutions; (b) employ the organs of government for essentially religious purposes; or (c) use essentially religious means to serve governmental ends, where secular means would suffice.” Abington School District v. Schempp, 374 U. S. 203, 295 (1963) (Brennan, J., concurring); Walz v. Tax Comm’n, 397 U. S. 664, 680-681 (1970) (Brennan, J., concurring); Lemon v. Kurtzman, 403 U. S. 602, 643 (1971) (Lemon I) (separate opinion of Brennan, J.).

Because under that test it is clear to me that the State’s proposed scheme of assistance to the Baptist College is violative of the Establishment Clause, I dissent.

The act authorizes a financing arrangement between the Authority and the Baptist College at Charleston, a South Carolina educational corporation operated by the South Carolina Baptist Convention. Under that arrangement, the College would convey a substantial portion of its campus to the Authority, and the Authority would lease back the property to the College at an agreed rental. The Authority would then issue revenue bonds of the State of South Carolina in the amount of $3,500,000, which bonds would be payable, principal and interest, from the rents paid by the College to the Authority under the lease. The proceeds of the sale of the bonds would be used to pay off outstanding indebtedness of the College and to construct additional buildings and facilities for use in its higher education operations. Upon payment in full of the principal and interest on the bonds, the arrangement requires that the Authority reconvey title to the campus properties to the College free and clear of all liens and encumbrances. The arrangement does not, however, amount merely to a mortgage on the campus property. The Authority is also empowered-, inter alia, to determine the location and character of any project financed under the act; to construct, maintain, manage, operate, lease as lessor or lessee, and regulate the same; to enter into contracts for the management and operation of such project; to establish rules and regulations for the use of the project or any portion thereof; and to fix and revise from time to time rates, rents, fees, and charges for the use of a project and for the services furnished or to be furnished by a project or any portion thereof. In other words, the College turns over to the State Authority control of substantial parts of the fiscal operation of the school— its very life’s blood.

It is true that the Act expressly provides that State financing will not be provided for

“any facility used or to be used for sectarian instruction or as a place of religious worship nor any facility which is used or to be used primarily in connection with any part of the program of a school or department of divinity for any religious denomination.” S. C. Code Ann. § 22-41.2 (b) (Supp. 1971).

And it is also true that the Authority, pursuant to granted rule-making power, has adopted a rule requiring that each lease agreement contain a covenant

“obligating the Institution that neither the leased land, nor any facility located thereon, shall be used for sectarian instruction or as a place of religious worship, or in connection with any part of the program of a school or department of divinity of any religious denomination.” 258 S. C., at 101, 187 S. E. 2d, at 647.

But policing by the Authority to insure compliance with these restrictions is established by a provision required to be included in the lease agreement allowing the Authority to conduct on-site inspections of the facilities financed under the act.

Thus, it is crystal clear, I think, that this scheme involves the State in a degree of policing of the affairs of the College far exceeding that called for by the statutes struck down in Lemon I, supra. See also Johnson v. Sanders, 319 F. Supp. 421 (Conn. 1970), aff’d, 403 U. S. 955 (1971). Indeed, under this scheme the policing by the State can become so extensive that the State may well end up in complete control of the operation of the College, at least for the life of the bonds. The College’s freedom to engage in religious activities and to offer religious instruction is necessarily circumscribed by this pervasive state involvement forced upon the College if it is not to lose its benefits under the Act. For it seems inescapable that the content of courses taught in facilities financed under the agreement must be closely monitored by the State Authority in discharge of its duty to ensure that the facilities are not being used for sectarian instruction. The Authority must also involve itself deeply in the fiscal affairs of the College, even to the point of fixing tuition rates, as part of its duty to assure sufficient revenues to meet bond and interest obligations. And should the College find itself unable to meet these obligations, its continued existence as a viable sectarian institution is almost completely in the hands of the State Authority. Thus, this agreement, with its consequent state surveillance and ongoing administrative relationships, inescapably entails mutually damaging Church-State involvements. Abington School District v. Schempp, 374 U. S., at 295 (Brennan, J., concurring) ; Lemon I, 403 U. S., at 649 (separate opinion of Brennan, J.).

In support of its contrary argument, the Court adopts much of the reasoning of the plurality opinion in Tilton v. Richardson, 403 U. S. 672 (1971). I disagreed with that reasoning in Tilton because, as in this case, that reasoning utterly failed to explain how programs of surveillance and inspection of the kind common to both cases differ from the Pennsylvania and Rhode Island programs invalidated in Lemon I. What I said in Tilton is equally applicable to the present case:

“I do not see any significant difference in . . . telling the sectarian university not to teach any nonsecular subjects in a certain building, and Rhode Island's telling the Catholic school teacher [in Lemon I] not to teach religion. The vice is the creation through subsidy of a relationship in which the government polices the teaching practices of a religious school or university.” 403 U. S., at 660 (separate opinion of Brennan, J.).

In any event, Tilton is clearly not controlling here. The plurality opinion in Tilton was expressly based on the premise, erroneous in my view, that the Federal Higher Education Facilities Act contained no significant intrusions into the everyday affairs of sectarian educational institutions. Thus, it was said in the plurality opinion:

“[Ujnlike the direct and continuing payments under the Pennsylvania program [in Lemon I], and all the incidents of regulation and surveillance, the Government aid here is a one-time, single-purpose construction grant. There are no continuing financial relationships or dependencies, no annual audits, and no government analysis of an institution’s expenditures on secular as distinguished from religious activities.” 403 U. S., at 688.

But under the South Carolina scheme, “continuing financial relationships or dependencies,” “annual audits,” “government analysis,” and “regulation and surveillance” are the core features of the arrangement. In short, the South Carolina statutory scheme as applied to this sectarian institution presents the very sort of “intimate continuing relationship or dependency between government and religiously affiliated institutions” that in the plurality’s view was lacking in Tilton. Ibid.

Nor is the South Carolina arrangement between the State and this College any less offensive to the Constitution because it involves, as the Court asserts, no direct financial support to the College by the State. The Establishment Clause forbids far more than payment of public funds directly to support sectarian institutions. It forbids any official involvement with religion, whatever its form, which tends to foster or discourage religious worship or belief. The cases are many in which we have struck down on establishment grounds state laws that provided, not direct financial support to religious institutions, but various other forms of assistance. McCollum v. Board of Education, 333 U. S. 203 (1948) (“release time” program); Engel v. Vitale, 370 U. S. 421 (1962) (prayer reading in public schools); Abington School District v. Schempp, 374 U. S. 203 (1963) (Bible reading in public schools). Moreover, any suggestion that the constitutionality of a statutory program to aid sectarian institutions is dependent on whether that aid can be characterized as direct or indirect is flatly refuted by the Court's decisions today in Committee for Public Education & Religious Liberty v. Nyquist, post, p. 756, and Sloan v. Lemon, post, p. 825. In those cases, we went behind the mere assertion that tuition reimbursement and tax exemption programs provided no direct aid to sectarian schools and concluded that the “substantive impact” of such programs was essentially the same as a direct subsidy from the State.

The South Carolina arrangement has the identical constitutional infirmities. The State forthrightly aids the College by permitting the College to avail itself of the State's unique ability to borrow money at low interest rates, and the College, in turn, surrenders to the State a comprehensive and continuing surveillance of the educational, religious, and fiscal affairs of the College. The conclusion is compelled that this involves the State in the “essentially religious activities of religious institutions” and “employ [s] the organs of government for essentially religious purposes.” I therefore dissent and would reverse the judgment of the Supreme Court of South Carolina.

       At various points during this litigation, appellant has made reference to the Free Exercise Clause of the First Amendment, but has made no arguments specifically addressed to violations of that Clause except insofar as this Court’s approach to cases involving the Religion Clauses represents an interaction of the two Clauses.

       As originally submitted by the College and approved by the Authority, the proposal called for the issuance of “not exceeding $3,500,000 of revenue bonds . . . .” 255 S. C. 71, 75, 177 S. E. 2d 362, 364. As indicated by a stipulation of counsel in this Court, the College subsequently secured a bank loan in the amount of $2,500000 and now proposes the issuance of only $1,250,000 in revenue bonds under the Act, the proceeds to be used:
      “(i) to repay in full the College’s Current Fund for the balance (approximately $250,000) advanced to the College’s Plant Fund as aforesaid; (ii) to refund outstanding short-term loans in the amount of $800,000 whose proceeds were to pay off indebtedness incurred for capital improvements, and (iii) to finance the completion of the dining hall facilities at a cost of approximately $200,000.” App. 49. (Emphasis in original.)

       Gross income for federal income tax purposes does not include interest on “the obligations of a State, a Territory; or a possession of the United States, or any political subdivision of any of the foregoing . . . .” 26 U. S. C. §103 (a)(1). For state income tax purposes, gross income does not include interest “upon obligations of the United States or its possessions or of this State or any political subdivision thereof S. C. Code Ann. § 65-253 (4) (Supp. 1971).

         Rule 4 relating to the Lease Agreement provides in part that:
      “If the Lease Agreement contains a provision permitting the Institution to repurchase the project upon payment of the bonds, then in such instance the Lease Agreement shall provide that the Deed of reconveyance from the Authority to the Institution shall be made subject to the condition that so long as the Institution, or any voluntary grantee of the Institution, shall own the leased premises, or any part thereof, that no facility thereon, financed in whole or in part with the proceeds of the bonds, shall be used for sectarian instruction or as a place of religious worship, or used in connection with any part of the program of a school or department of divinity of any religious denomination.” 258 S. C. 97, 101-102, 187 S. E. 2d 645, 647-648.
      The Rule goes on to allow the institution to remove this option in the case of involuntary sales:
      “The condition may provide, at the option of the Institution, that if the leased premises shall become the subject of an involuntary judicial sale, as a result of any foreclosure of any mortgage, or sale pursuant to any order of any court, that the title to be vested in any purchaser at such judicial sale, other than the Institution, shall be in fee simple and shall be free of the condition applicable to the Institution or any voluntary grantee thereof.” 258 S. C., at 102, 187 S. E. 2d, at 648. See n. 6, infra.

       In Board of Education v. Allen, 392 U. S. 236 (1968), this Court commented on the importance of the role of private education in this country:
      “Underlying these cases, and underlying also the legislative judgments that have preceded the court decisions, has been a recognition that private education has played and is playing a significant and valuable role in raising national levels of knowledge, competence, and experience.” Id., at 247.

       Appellant also takes issue with the Authority’s rule allowing a purchaser at an involuntary sale to take title free of restrictions as to religious use. See n. 4, supra. Appellant’s reliance on Tilton v. Richardson, 403 U. S. 672 (1971), in this respect is misplaced. There, the Court struck down a provision under which the church-related colleges would have unrestricted use of a federally financed project after 20 years. In the present case, by contrast, the restriction against religious use is lifted, not as to the institution seeking the assistance of the Authority nor as to voluntary transferees, but only as to a purchaser at a judicial sale. Because some other religious institution bidding for the property at a judicial sale could purchase the property only by outbidding all other prospective purchasers, there is only a speculative possibility that the absence of a use limitation would ever afford aid to religion. Even in such an event, the acquiring religious institution presumably would have had to pay the then fair value of the property.

       The “state aid” involved in this case is of a very special sort. We have here no expenditure of public funds, either by grant or loan, no reimbursement by a State for expenditures made by a parochial school or college, and no extending or committing of a State’s credit. Rather, the only state aid consists, not of financial assistance directly or indirectly which would implicate public funds or credit, but the creation of an instrumentality (the Authority) through which educational institutions may borrow funds on the basis of their own credit and the security of their own property upon more favorable interest terms than otherwise would be available. The Supreme Court of New Jersey characterized the assistance rendered an educational institution under an act generally similar to the South Carolina Act as merely being a "governmental service.” Clayton v. Kervick, 56 N. J. 523, 530-531, 267 A. 2d 503, 506-507 (1970). The South Carolina Supreme Court, in the opinion below, described the role of the State as that of a “mere conduit.” 258 S. C., at 107, 187 S. E. 2d, at 650. Because we conclude that the primary effect of the assistance afforded here is neither to advance nor to inhibit religion under Lemon and Tilton, we need not decide whether, as appellees argue, Brief for Appellees 14, the importance of the tax exemption in the South Carolina scheme brings the present case under Walz v. Tax Comm’n, 397 U. S. 664 (1970), where this Court upheld a local property tax exemption which included religious institutions.

       Although the record in this case is abbreviated and not free from ambiguity, the burden rests on appellant to show the extent to which the College is church related, cf. Board of Education v. Allen, 392 U. S., at 248, and he has failed to show more than a formalistic church relationship. As Tilton established, formal denominational control over a liberal arts college does not render all aid to the institution a violation of the Establishment Clause. So far as the record here is concerned, there is no showing that the College places any special emphasis on Baptist denominational or any other sectarian type of education. As noted above, both the faculty and the student body are open to persons of any (or no) religious affiliation.

       No one denies that the Baptist College at Charleston is a “sectarian” institution — i. e., one “in which the propagation and advancement of a particular religion are a function or purpose of the institution.” Lemon v. Kurtzman, 403 U. S. 602, 659 (1971) (separate opinion of BreNNAN, J.).

       The South Carolina Educational Facilities Authority is composed of the members of the State Budget and Control Board, who are the Governor, the State Treasurer, the State Comptroller General, the Chairman of the Finance Committee of the State Senate, and the Chairman of the Ways and Means Committee of the State House of Representatives. The Act states that “all the functions and powers of the Authority are hereby granted to the State Budget and Control Board as an incident of its functions in connection with the public finances of the State.” S. C. Code Ann. §22-41.3 (Supp. 1971).

       This outstanding indebtedness pertains to certain unspecified “capital improvements.” App. 49. Thus, it may be that the indebtedness was incurred for improvements to facilities used for religious purposes.