author: Mr. Chief Justice Burger

text:
    NORWOOD et al. v. HARRISON et al.
    No. 72-77.
    Argued February 20-21, 1973 —
    Decided June 25, 1973

      Burger, C. J., delivered the opinion of the Court, in which Stewart, White, Marshall, Blackmun, Powell, and Rehnquist, JJ., joined. Douglas and Brennan, JJ., concurred in the result.

      Melvyn R. Leventhal argued the cause for appellants. With him on the briefs were Jack Greenberg, James M. Nabrit III, Charles Stephen Ralston, Norman J. Chach-kin, and Anthony G. Amsterdam.

      William A. Attain, First Assistant Attorney General of Mississippi, argued the cause for appellees. With him on the brief were A. F. Summer, Attorney General, and Heber Ladner, Jr., Special Assistant Attorney General.

        Solicitor General Griswold, Assistant Attorney General Pottinger, Deputy Solicitor General Wallace, Harriet S. Shapiro, Brian K. Landsberg, and Thomas M. Keeling filed a memorandum for the United States as amicus curiae urging reversal.

   Mr. Chief Justice Burger

delivered the opinion of the Court.

A three-judge District Court sustained the validity of a Mississippi statutory program under which textbooks are purchased by the State and lent to students in both public and private schools, without reference to whether any participating private school has racially discriminatory policies. 340 F. Supp. 1003 (ND Miss. 1972). We noted probable jurisdiction, 409 U. S. 839.

I

Appellants, who are parents of four schoolchildren in Tunica County, Mississippi, filed a class action on behalf of students throughout Mississippi to enjoin in part the enforcement of the Mississippi textbook lending program. The complaint alleged that certain of the private schools excluded students on the basis of race and that, by supplying textbooks to students attending such private schools, appellees, acting for the State, have provided direct state aid to racially segregated education. It was also alleged that the textbook aid program thereby impeded the process of fully desegregating public schools, in violation of appellants’ constitutional rights.

Private schools in Mississippi have experienced a marked growth in recent years. As recently as the 1963-1964 school year, there were only 17 private schools other than Catholic schools; the total enrollment was 2,362 students. In these nonpublic schools 916 students were Negro, and 192 of these were enrolled in special schools for retarded, orphaned, or abandoned children. By September 1970, the number of private non-Catholic schools had increased to 155 with a student population estimated at 42,000, virtually all white. Ap-pellees do not challenge the statement, which is fully documented in appellants’ brief, that “the creation and enlargement of these [private] academies occurred simultaneously with major events in the desegregation of public schools . ...”

This case does not raise any question as to the right of citizens to maintain private schools with admission limited to students of particular national origins, race, or religion or of the authority of a State to allow such schools. See Pierce v. Society of Sisters, 268 U. S. 510 (1925). The narrow issue before us, rather, is a particular form of tangible assistance the State provides to students in private schools in common with all other students by lending textbooks under the State’s 33-year-old program for providing free textbooks to all the children of the State. The program dates back to a 1940 appeal for improved educational facilities by the Governor of Mississippi to the state legislature. The legislature then established a state textbook purchasing board and authorized it to select, purchase, and distribute free textbooks for all schoolchildren through the first eight grades. In 1942, the program was extended to cover all high school students, and, as codified, the statutory authorization remains substantially unchanged. Miss. Code Ann. § 6634 et seq. (1942).

Administration of the textbook program is vested in the Mississippi Textbook Purchasing Board, whose members include the Governor, the State Superintendent of Education, and three experienced educators appointed by the Governor for four-year terms. Id., §§ 6634, 6641. The Board employs a full-time administrator as its Executive Secretary. Textbooks may be purchased only “for use in those courses set up in the state course of study adopted by the State Board of Education, or courses established by special acts of the Legislature.” Id., § 6646. For each course of study, there is a "rating committee” composed of appointed members, id., § 6641 (l)(d), and only those books approved by the relevant rating committee may be purchased from publishers at a price which cannot “be higher than the lowest prices at which the same books are being sold anywhere in the United States.” Id., §6646 (1).

The books are kept at a central book repository in Jackson. Id., § 6641 (1) (f). Appellees send to each school district, and, in recent years, to each private school requisition forms listing approved textbooks available from the State for free distribution to students. The local school district or the private school sends a requisition form to the Purchasing Board for approval by the Executive Secretary, who in turn forwards the approved form to the Jackson book repository where the order is routinely filled and the requested books shipped directly to the school district or the private school.

The District Court found that “34,000 students are presently receiving state-owned textbooks while attending 107 all-white, nonsectarian private schools which have been formed throughout the state since the inception of public school desegregation.” 340 F. Supp., at 1011. During the 1970-1971 school year, these schools held 173,424 books, for which Mississippi paid $490,239. The annual expenditure for replacements or new texts is approximately $6 per pupil, or a total of approximately $207,000 for the students enrolled in the participating private segregated academies, exclusive of mailing costs which are borne by the State as well.

In dismissing the complaint the District Court stressed, first, that the statutory scheme was not motivated by a desire to further racial segregation in the public schools, having been enacted first in 1940, long before this Court’s decision in Brown v. Board of Education, 347 U. S. 483 (1954), and consequently, long before there was any occasion to have a policy or reason to foster the development of racially segregated private academies. Second, the District Court took note that providing textbooks to private sectarian schools had been approved by this Court in Board of Education v. Allen, 392 U. S. 236 (1968), and that “[t]he essential inquiry, therefore, is whether we should apply a more stringent standard for determining what constitutes state aid to a school in the context of the Fourteenth Amendment’s ban against denial of the equal protection of the law than the Supreme Court has applied in First Amendment cases.” 340 F. Supp., at 1011. The District Court held no more stringent standard should apply on the facts of this case, since, as in Allen, the books were provided to the students and not to the schools. Finally, the District Court concluded that the textbook loans did not interfere with or impede the State’s acknowledged duty to establish a unitary school system under this Court's holding in Green v. County School Board, 391 U. S. 430, 437 (1968), since

“[depriving any segment of school children of state-owned textbooks at this point in time is not necessary for the establishment or maintenance of state-wide unitary schools. Indeed, the public schools which plaintiffs acknowledge were fully established as unitary schools throughout the state no later than 1970-71, continue to attract 90% of the state's educable children. There is no showing that any child enrolled in private school, if deprived of free textbooks, would withdraw from private school and subsequently enroll in the public schools.'' 340 F. Supp., at 1013.

II

In Pierce v. Society of Sisters, 268 U. S. 510 (1925), the Court held that a State’s role in the education of its citizens must yield to the right of parents to provide an equivalent education for their children in a privately operated school of the parents’ choice. In the 1971 Term we reaffirmed the vitality of Pierce, in Wisconsin v. Yoder, 406 U. S. 205, 213 (1972), and there has been no suggestion in the present case that we alter our view of Pierce. Yet the Court’s holding in Pierce is not without limits. As Mr. Justice White observed in his concurring opinion in Yoder, Pierce “held simply that while a State may posit [educational] standards, it may not pre-empt the educational process by requiring children to attend public schools.” Id., at 239.

Appellees fail to recognize the limited scope of Pierce when they urge that the right of parents to send their children to private schools under that holding is at stake in this case. The suggestion is made that the rights of parents under Pierce would be undermined were the lending of free textbooks denied to those who attend private schools — in other words, that schoolchildren who attend private schools might be deprived of the equal protection of the laws were they invidiously classified under the state textbook loan program simply because their parents had exercised the constitutionally protected choice to send the children to private schools.

We do not see the issue in appellees’ terms. In Pierce, the Court affirmed the right of private schools to exist and to operate; it said nothing of any supposed right of private or parochial schools to share with public schools in state largesse, on an equal basis or otherwise. It has never been held that if private schools are not given some share of public funds allocated for education that such schools are isolated into a classification violative of the Equal Protection Clause. It is one thing to say that a State may not prohibit the maintenance of private schools and quite another to say that such schools must, as a matter of equal protection, receive state aid.

The appellees intimate that the State must provide assistance to private schools equivalent to that which it provides to public schools without regard to whether the private schools discriminate on racial grounds. Clearly, the State need not. Even as to church-sponsored schools whose policies are nondiscriminatory, any absolute right to equal aid was negated, at least by implication, in Lemon v. Kurtzman, 403 U. S. 602 (1971). The Religion Clauses of the First Amendment strictly confine state aid to sectarian education. Even assuming, therefore, that the Equal Protection Clause might require state aid to be granted to private nonsectarian schools in some circumstances — health care or textbooks, for example — a State could rationally conclude as a matter of legislative policy that constitutional neutrality as to sectarian schools might best be achieved by withholding all state assistance. See San Antonio Independent School District v. Rodriguez, 411 U. S. 1 (1973). In the same way, a State's special interest in elevating the quality of education in both public and private schools does not mean that the State must grant aid to private schools without regard to constitutionally mandated standards forbidding state-supported discrimination. That the Constitution may compel toleration of private discrimination in some circumstances does not mean that it requires state support for such discrimination.

Ill

The District Court’s holding therefore raises the question whether and on what terms a State may — as a matter of legislative policy- — provide tangible assistance to students attending private schools. Appellants assert, not only that the private schools are in fact racially discriminatory, but also that aid to them in any form is in derogation of the State’s obligation not to support discrimination in education.

This Court has consistently affirmed decisions enjoining state tuition grants to students attending racially discriminatory private schools. A textbook lending program is not legally distinguishable from the forms of state assistance foreclosed by the prior cases. Free textbooks, like tuition grants directed to private school students, are a form of financial assistance inuring to the benefit of the private schools themselves. An inescapable educational cost for students in both public and private schools is the expense of providing all necessary-learning materials. When, as here, that necessary expense is borne by the State, the economic consequence is to give aid to the enterprise; if the school engages in discriminatory practices the State by tangible aid in the form of textbooks thereby gives support to such discrimination. Racial discrimination in state-operated schools is barred by the Constitution and “[i]t is also axiomatic that a state may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.” Lee v. Macon County Board of Education, 267 F. Supp. 458, 475-476 (MD Ala. 1967).

We do not suggest that a State violates its constitutional duty merely because it has provided any form of state service that benefits private schools said to be racially discriminatory. Textbooks are a basic educational tool and, like tuition grants, they are provided only in connection with schools; they are to be distinguished from generalized services government might provide to schools in common with others. Moreover, the textbooks provided to private school students by the State in this case are a form of assistance readily available from sources entirely independent of the State — unlike, for example, “such necessities of life as electricity, water, and police and fire protection.” Moose Lodge No. 107 v. Irvis, 407 U. S. 163, 173 (1972). The State has neither an absolute nor operating monopoly on the procurement of school textbooks; anyone can purchase them on the open market.

The District Court laid great stress on the absence of a showing by appellants that “any child enrolled in private school, if deprived of free textbooks, would withdraw from private school and subsequently enroll in the public schools.” 340 F. Supp., at 1013. We can accept this factual assertion; we cannot and do not know, on this record at least, whether state textbook assistance is the determinative factor in the enrollment of any students in any of the private schools in Mississippi. We do not agree with the District Court in its analysis of the legal consequences of this uncertainty, for the Constitution does not permit the State to aid discrimination even when there is no precise causal relationship between state financial aid to a private school and the continued well-being of that school. A State may not grant the type of tangible financial aid here involved if that aid has a significant tendency to facilitate, reinforce, and support private discrimination. “[Decisions on the constitutionality of state involvement in private discrimination do not turn on whether the state aid adds up to 51 percent or adds up to only 49 per cent of the support of the segregated institution.” Poindexter v. Louisiana Financial Assistance Comm’n, 275 F. Supp. 833, 854 (ED La. 1967).

The recurring theme of appellees’ argument is a sympathetic one — that the State’s textbook loan program is extended to students who attend racially segregated private schools only because the State sincerely wishes to foster quality education for all Mississippi children, and, to that end, has taken steps to insure that no sub-group of schoolchildren will be deprived of an important educational tool merely because their parents have chosen to enroll them in segregated private schools. We need not assume that the State’s textbook aid to private schools has been motivated by other than a sincere interest in the educational welfare of all Mississippi children. But good intentions as to one valid objective do not serve to negate the State’s involvement in violation of a constitutional duty. “The existence of a permissible purpose cannot sustain an action that has an impermissible effect.” Wright v. Council of City of Emporia, 407 U. S. 451, 462 (1972). The Equal Protection Clause would be a sterile promise if state involvement in possible private activity could be shielded altogether from constitutional scrutiny simply because its ultimate end was not discrimination but some higher goal.

The District Court offered as further support for its holding the finding that Mississippi’s public schools “were fully established as unitary schools throughout the state no later than 1970-71 [and] continue to attract 90% of the state’s educable children.” 340 F. Supp., at 1013. We note, however, that overall statewide attendance figures do not fully and accurately reflect the impact of private schools in particular school districts. In any event, the constitutional infirmity of the Mississippi textbook program is that it significantly aids the organization and continuation of a separate system of private schools which, under the District Court holding, may discriminate if they so desire. A State’s constitutional obligation requires it to steer clear, not only of operating the old dual system of racially segregated schools, but also of giving significant aid to institutions that practice racial or other invidious discrimination. That the State’s public schools are now fully unitary, as the District Court found, is irrelevant.

IV

Appellees and the District Court also placed great reliance on our decisions in Everson v. Board of Education, 330 U. S. 1 (1947), and Board of Education v. Allen, 392 U. S. 236 (1968). In Everson, we held that the Establishment Clause of the First Amendment did not prohibit New Jersey from “spending tax-raised funds to pay the bus fares of parochial school pupils as a part of a general program under which it pays the fares of pupils attending public and other schools.” 330 U. S., at 17. Allen, following Everson, sustained a New York law requiring school textbooks to be lent free of charge to all students, including those in attendance at parochial schools, in specified grades.

Neither Allen nor Everson is dispositive of the issue before us in this case. Religious schools “pursue two goals, religious instruction and secular education.” Board of Education v. Allen, supra, at 245. And, where carefully limited so as to avoid the prohibitions of the “effect” and “entanglement” tests, States may assist church-related schools in performing their secular functions, Committee for Public Education v. Nyquist, post, at 774, 775; Levitt v. Committee for Public Education, post, at 481, not only because the States have a substantial interest in the quality of education being provided by private schools, see Cochran v. Louisiana Board of Education, 281 U. S. 370, 375 (1930), but more importantly because assistance properly confined to the secular functions of sectarian schools does not substantially promote the readily identifiable religious mission of those schools and it does not interfere with the free exercise rights of others.

Like a sectarian school, a private school — even one that discriminates — fulfills an important educational function; however, the difference is that in the context of this case the legitimate educational function cannot be isolated from discriminatory practices — if such in fact exist. Under Brown v. Board of Education, 347 U. S. 483 (1954), discriminatory treatment exerts a pervasive influence on the entire educational process. The private school that closes its doors to defined groups of students on the basis of constitutionally suspect criteria manifests, by its own actions, that its educational processes are based on private belief that segregation is desirable in education. There is no reason to discriminate against students for reasons wholly unrelated to individual merit unless the artificial barriers are considered an essential part of the educational message to be communicated to the students who are admitted. Such private bias is not barred by the Constitution, nor does it invoke any sanction of laws, but neither can it call on the Constitution for material aid from the State.

Our decisions under the Establishment Clause reflect the “internal tension in the First Amendment between the Establishment Clause and the Free Exercise Clause,” Tilton v. Richardson, 403 U. S. 672, 677 (1971). This does not mean, as we have already suggested, that a State is constitutionally obligated to provide even “neutral” services to sectarian schools. But the transcendent value of free religious exercise in our constitutional scheme leaves room for “play in the joints” to the extent of cautiously delineated secular governmental assistance to religious schools, despite the fact that such assistance touches on the conflicting values of the Establishment Clause by indirectly benefiting the religious schools and their sponsors.

In contrast, although the Constitution does not proscribe private bias, it places no value on discrimination as it does on the values inherent in the Free Exercise Clause. Invidious private discrimination may be characterized as a form of exercising freedom of association protected by the First Amendment, but it has never been accorded affirmative constitutional protections. And even some private discrimination is subject to special remedial legislation in certain circumstances under § 2 of the Thirteenth Amendment; Congress has made such discrimination unlawful in other significant contexts. However narrow may be the channel of permissible state aid to sectarian schools, Nyquist, supra; Levitt, supra, it permits a greater degree of state assistance than may be given to private schools which engage in discriminatory practices that would be unlawful in a public school system.

Y

At oral argument, appellees expressed concern over the process of determining the scope of relief to be granted should appellants prevail on the merits. That aspect of the case presents problems but the procedural details need not be fully resolved here. The District Court’s assumption that textbook loans were permissible, even to racially discriminating private schools, obviated any necessity for that court to determine whether some of the private schools could properly be classified as “racially discriminatory” and how that determination might best be made. We construe the complaint as contemplating an individual determination as to each private school in Mississippi whose students now receive textbooks under the State’s textbook loan program; relief on an assumption that all private schools were discriminating, thus foreclosing individualized consideration, would not be appropriate.

The proper injunctive relief can be granted without implying a finding that all the private schools alleged to be receiving textbook aid are in fact practicing restrictive admission policies. Private schools are not fungible and the fact that some or even most may practice discrimination does not warrant blanket condemnation. The District Court can appropriately direct the appellees to submit for approval a certification procedure under which any school seeking textbooks for its pupils may apply for participation on behalf of pupils. The certification by the school to the Mississippi Textbook Purchasing Board should, among other factors, affirmatively declare its admission policies and practices, state the number of its racially and religiously identifiable minority students and such other relevant data as is consistent with this opinion. The State’s certification of eligibility would, of course, be subject to judicial review.

This school-by-school determination may be cumbersome but no more so than the State’s process of ascertaining compliance with educational standards. No presumptions flow from mere allegations; no one can be required, consistent with due process, to prove the absence of violation of law.

The judgment of the District Court is vacated and the case is remanded for further proceedings consistent with this opinion.

So ordered.

Me. Justice Douglas and Mr. Justice Brennan concur in the result.

       App. 40-41.

       Brief for Appellants 8-9.

       See Norwood v. Harrison, 340 F. Supp. 1003, 1007 (ND Miss. 1972).

       The regulation for distribution of state-owned textbooks from 1940 through 1970 provided as follows:
      “For the distribution of free textbooks the local control will be placed in the hands of the County Superintendent of Education. All requisitions for books shall be made through him and all shipments of books shall be invoiced through him. At his discretion he may set up certain regulations governing the distribution of books within the county, such regulations not to conflict with the regulations adopted by the State Textbook Board or provisions of the Free Textbook Act.”
      This regulation was revised on October 14, 1970, to read as follows:

        “Public Schools. The administration of the textbook program in the public schools shall be the responsibility of the administrative heads of the county units, consolidated districts, and municipal separate districts set up by the Legislature. All textbook transactions between the public schools and the State shall be carried on through them. It shall be the duty of these local custodians to render all reports required by the State; to place orders for textbooks for the pupils in their schools ....

        “Private Schools. Private and parochial school programs shall be the responsibility of the State Textbook Board. All textbook transactions will be carried out between the Board and the administrative heads of these schools. Their duties shall be the same as outlined above for public schools.”

       The variation in the figures as to schools and students is accounted for by the District Court’s omission of particular kinds of schools in making the findings. The earlier and higher figures are found in the briefs and are not disputed.

        Brown v. South Carolina Board of Education, 296 F. Supp. 199 (SC), aff’d per curiam, 393 U. S. 222 (1968); Poindexter v. Louisiana Financial Assistance Comm’n, 275 F. Supp. 833 (ED La. 1967), aff’d per curiam, 389 U. S. 571 (1968). See Wallace v. United States, 389 U. S. 215 (1967), aff’g Lee v. Macon County Board of Education, 267 F. Supp. 458, 475 (MD Ala.). Mississippi’s tuition grant programs were invalidated in Coffey v. State Educational Finance Comm’n, 296 F. Supp. 1389 (SD Miss. 1969); Coffey v. State Educational Finance Comm’n, SD Miss., CA No. 2906, decided Sept. 2,1970 (unreported). The latter case involved a statute which provided for tuition loans rather than tuition grants. See Green v. Connolly, 330 F. Supp. 1150 (DC), aff’d sub nom. Coit v. Green, 404 U. S. 997 (1971).

       Appellees misperceive the “child benefit” theory of our cases decided under the Religion Clauses of the First Amendment. See, e. g., Cochran v. Louisiana Board of Education, 281 U. S. 370 (1930), and Board of Education v. Allen, 392 U. S. 236 (1968). In those cases the Court observed that the direct financial benefit of textbook loans to students is “to parents and children, not to schools,” id,, at 244, in the sense that parents and children — not schools— would in most instances be required to procure their textbooks if the State did not. But the Court has never denied that “free books make it more likely that some children choose to attend a sectarian school,” ibid., just as in other cases involving aid to sectarian schools we have acknowledged that the various forms of state assistance “surely aid these [religious] institutions ... in the sense that religious bodies would otherwise have been forced to find other sources from which to finance these services.” Tilton v. Richardson, 403 U. S. 672, 679 (1971). Plainly, religion benefits indirectly from governmental aid to parents and children; nevertheless, “[t]hat religion may indirectly benefit from governmental aid . . . does not convert that aid into an impermissible establishment of religion.” Lemon v. Kurtzman, 403 U. S. 602, 664 (1971) (opinion of White, J.).
      The leeway for indirect aid to sectarian schools has no place in defining the permissible scope of state aid to private racially discriminatory schools. “State support of segregated schools through any arrangement, management, funds, or property cannot be squared with the [Fourteenth] Amendment’s command that no State shall deny to any person within its jurisdiction the equal protection of the laws.” Cooper v. Aaron, 358 U. S. 1, 19 (1958). Thus Mr. Justice White, the author of the Court’s opinion in Allen, supra, and a dissenter in Lemon v. Kurtzman, supra, noted there that in his view, legislation providing assistance to any sectarian school which restricted entry on racial or religious grounds would, to that extent, be unconstitutional. Lemon, supra, at 671 n. 2. See Part IV, infra.

       Accord, Griffin v. State Board of Education, 296 F. Supp. 1178, 1181 (ED Va. 1969), superseding Griffin v. State Board of Education, 239 F. Supp. 560 (ED Va. 1965); Brown v. South Carolina Board of Education, supra.

       In Tunica County, for example, where appellants reside, in response to Green v. Connally, supra, and Alexander v. Holmes County Board of Education, 396 U. S. 19 (1969), all white children were withdrawn from public schools and placed in a private academy housed in local church facilities and staffed by the principal and 17 high school teachers of the county system, who resigned in mid-year to accept jobs at the new academy. See United States v. Tunica County School District, 323 F. Supp. 1019 (ND Miss. 1970), aff’d, 440 F. 2d 377 (CA5 1971). As of the time of the filing of this lawsuit, the successor Tunica Institute of Learning enrolled 495 students, all white, and would not attest to an open enrollment policy. Similar histories of Holmes County, Canton Municipal Separate School District, Jackson Municipal Separate School District, Amite County, Indianola Municipal Separate School District, and Grenada Municipal Separate School District are recited, without challenge by appellees, in Brief for Appellants 14r-19.

       See, e. g., Griffin v. Breekenridge, 403 U. S. 88 (1971); Jones v. Alfred H. Mayer Co., 392 U. S. 409 (1968); 42 U. S. C. § 2000a et seq. (barring discrimination in public accommodations); 42 U. S. C. § 2000e et seq. (barring discrimination in private employment); 42 U. S. C. § 3601 et seq. (barring discrimination in private housing transactions).


source: Caselaw Access Project

license: Public Domain

text:
    LEVITT, COMPTROLLER OF NEW YORK, et al. v. COMMITTEE FOR PUBLIC EDUCATION & RELIGIOUS LIBERTY et al.
    No. 72-269.
    Argued March 19, 1973 —
    Decided June 25, 1973

      Burger, C. J., delivered the opinion of the Court, in which Stewart, BlachmuN, Powell, and Rehnquist, JJ., joined. Douglas, BreNNAN, and Marshall, JJ., filed a separate statement, post, p. 482. White, J., dissented.

      Jean M. Coon, Assistant Solicitor General of New York, argued the cause for appellants in Nos. 72-269 and 72-270. With her on the brief for appellants in No. 72-269 were Louis J. Lefkowitz, Attorney General, and Ruth Kessler Toch, Solicitor General. John F. Haggerty and Louis P. Contiguglia were on the briefs for appellant in No. 72-270. Porter R. Chandler argued the cause for appellants in No. 72-271. With him on the briefs was Richard E. Nolan. Nathan Lewin and Julius Berman were on the brief for appellants Bais Yaakov Academy for Girls et al. in No. 72-271.

      Leo Pfeifer argued the cause and filed a brief for appellees.

      Together with No. 72-270, Anderson v. Committee for Public Education & Religious Liberty et al., and No. 72-271, Cathedral Academy et al. v. Committee for Public Education & Religious Liberty et al., also on appeal from the same court.

         Ethan A. Hitchcock filed a brief for New York State Association of Independent Schools as amicus curiae urging reversal.

   Mr. Chief Justice Burger

delivered the opinion of the Court.

We are asked to decide whether Chapter 138 of New York State’s Laws of 1970, under which the State reimburses private schools throughout the State for certain costs of testing and recordkeeping, violates the Establishment Clause of the First Amendment. A three-judge District Court, with one judge dissenting, held the Act unconstitutional. 342 F. Supp. 439 (SDNY 1972). We noted probable jurisdiction. 409 U. S. 977.

I

In April 1970, the New York Legislature appropriated $28,000,000 for the purpose of reimbursing nonpublic schools throughout the State

“for expenses of services for examination and inspection in connection with administration, grading and the compiling and reporting of the results of tests and examinations, maintenance of records of pupil enrollment and reporting thereon, maintenance of pupil health records, recording of personnel qualifications and characteristics and the preparation and submission to the state of various other reports as provided for or required by law or regulation.” New York Laws 1970, c. 138, § 2.

As indicated by the portion of the statute quoted above, the State has in essence sought to reimburse private schools for performing various “services” which the State “mandates.” Of these mandated services, by far the most expensive for nonpublic schools is the “administration, grading and the compiling and reporting of the results of tests and examinations.” Such “tests and examinations” appear to be of two kinds: (a) state-prepared examinations, such as the “Regents examinations” and the “Pupil Evaluation Program Tests,” and (b) traditional teacher-prepared tests, which are drafted by the nonpublic school teachers for the purpose of measuring the pupils’ progress in subjects required to be taught under state law. The overwhelming majority of testing in nonpublic, as well as public, schools is of the latter variety.

Church-sponsored as well as secular nonpublic schools are eligible to receive payments under the Act. The District Court made findings that the Commissioner of Education had “construed and applied” the Act “to include as permissible beneficiaries schools which (a) ■ impose religious restrictions on admissions; (b) require attendance of pupils at religious activities; (c) require obedience by students to the doctrines and dogmas of a particular faith; (d) require pupils to attend instruction in the theology or doctrine of a particular faith; (e) are an integral part of the religious mission of the church sponsoring it; (f) have as a substantial purpose the inculcation of religious values; (g) impose religious restrictions on faculty appointments; and (h) impose religious restrictions on what or how the faculty may teach.” 342 F. Supp., at 440-441.

A school seeking aid under the Act is required to submit an application to the Commissioner of Education, who may direct the applicant to file “such additional reports” as he deems necessary to make a determination of eligibility. New York Laws 1970, c. 138, § 4. Qualifying schools receive an annual payment of $27 for each pupil in average daily attendance in grades one through six and $45 for each pupil in average daily attendance in grades seven through 12. Payments are made in two installments: Between January 15 and March 15 of the school year, one-half of the “estimated total apportionment” is paid directly to the school; the balance is paid between April 15 and June 15. The Commissioner is empowered to make “later payments for the purpose of adjusting and correcting apportionments.” Id., § 5.

Section 8 of the Act states: “Nothing contained in this act shall be construed to authorize the making of any payment under this act for religious worship or instruction.” However, the Act contains no provision authorizing state audits of school financial records to determine whether a school’s actual costs in complying with the mandated services are less than the annual lump sum payment. Nor does the Act require a school to return to the State moneys received in excess of its actual expenses. In appellant Nyquist’s answers to appellees’ interrogatories, which the parties stipulated could be “taken as accepted facts for the purposes of this case,” the Commissioner stated that “qualifying schools are not required to submit reports accounting for the moneys received and how they are expended.”

II

Appellees are New York taxpayers and an unincorporated association. They filed this suit in the United States District Court claiming that Chapter 138 abridges the Establishment Clause of the First Amendment. An injunction was sought enjoining appellants Levitt and Nyquist, the State Comptroller and Commissioner of Education respectively, from enforcing the Act. State Senator Earl W. Brydges and certain Catholic and Jewish parochial schools qualified to receive aid under the Act were permitted to intervene as parties defendant.

A three-judge District Court was convened pursuant to 28 U. S. C. §§2281, 2284. After a hearing on the merits, a majority of the District Court permanently enjoined appellants from enforcement of the Act. The District Court concluded that this case was controlled by our decision in Lemon v. Kurtzman, 403 U. S. 602 (1971), and held the Act unconstitutional under the Establishment Clause.

In reaching its decision, the District Court rejected appellants' argument that the Act is constitutional because payments are made only for services that are “secular, neutral, or nonideological” in character. Id., at 616. The court stated:

“By far the greatest portion of the funds appropriated under Chapter 138 is paid for the services of teachers in testing students, and testing is an integral part of the teaching process.” 342 F. Supp., at 444.

Likewise, the court dismissed as “fanciful” the contention that a State may reimburse church-related schools for costs incurred in performing any service “mandated” by state law.

III

In Committee for Public Education & Religious Liberty v. Nyquist, post, p. 756, the Court has today struck down a provision of New York law authorizing “direct money grants from the State to 'qualifying' nonpublic schools to be used for the 'maintenance and repair of . . . school facilities and equipment to ensure the health, welfare and safety of enrolled pupils.’ ” Id., at 762 (footnote omitted). The infirmity of the statute in Nyquist lay in its undifferentiated treatment of the maintenance and repair of facilities devoted to religious and secular functions of recipient, sectarian schools. Since “[n]o attempt is made to restrict payments to those expenditures related to the upkeep of facilities used exclusively for secular purposes,” the Court held that the statute has the primary effect of advancing religion and is, therefore, violative of the Establishment Clause. Id., at 774.

The statute now before us, as written and as applied by the Commissioner of Education, contains some of the same constitutional flaws that led the Court to its decision in Nyquist. As noted previously, Chapter 138 provides for a direct money grant to sectarian schools for performance of various “services.” Among those services is the maintenance of a regular program of traditional internal testing designed to measure pupil achievement. Yet, despite the obviously integral role of such testing in the total teaching process, no attempt is made under the statute, and no means are available, to assure that internally prepared tests are free of religious instruction.

We cannot ignore the substantial risk that these examinations, prepared by teachers under the authority of religious institutions, will be drafted with an eye, unconsciously or otherwise, to inculcate students in the religious precepts of the sponsoring church. We do not “assume that teachers in parochial schools will be guilty of bad faith or any conscious design to evade the limitations imposed by the statute and the First Amendment.” Lemon v. Kurtzman, 403 U. S., at 618. But the potential for conflict “inheres in the situation,” and because of that the State is constitutionally compelled to assure that the state-supported activity is not being used for religious indoctrination. See id., at 617, 619. Since the State has failed to do so here, we are left with no choice under Nyquist but to hold that Chapter 138 constitutes an impermissible aid to religion; this is so because the aid that will be devoted to secular functions is not identifiable and separable from aid to sectarian activities.

In the District Court and in this Court appellants insisted that payments under Chapter 138 do not aid the religious mission of church-related schools but merely provide partial reimbursement for totally nonsectarian activities performed at the behest of the State. Appellants, in other words, contend that this case is controlled by our decisions in Everson v. Board of Education, 330 U. S. 1 (1947), and Board of Education v. Allen, 392 U. S. 236 (1968). In Everson we held that New Jersey could reimburse parents of parochial school children for expenses incurred in transporting the children on buses to their schools. And in Allen we upheld a New York statute requiring local school boards to lend secular textbooks “to all children residing in such district who are enrolled in grades seven to twelve of a public or private school which complies with the compulsory education law.” Id., at 239.

In this case, however, we are faced with state-supported activities of a substantially different character from bus rides or state-provided textbooks. Routine teacher-prepared tests, as noted by the District Court, are “an integral part of the teaching process.” 342 F. Supp., at 444. And, “[i]n terms of potential for involving some aspect of faith or morals in secular subjects, a textbook's content is ascertainable, but a teacher’s handling of a subject is not.” Lemon v. Kurtzman, 403 U. S., at 617.

To the extent that appellants argue that the State should be permitted to pay for any activity “mandated” by state law or regulation, we must reject the contention. State or local law might, for example, “mandate” minimum lighting or sanitary facilities for all school buildings, but such commands would not authorize a State to provide support for those facilities in church-sponsored schools. The essential inquiry in each case, as expressed in our prior decisions, is whether the challenged state aid has the primary purpose or effect of advancing religion or religious education or whether it leads to excessive entanglement by the State in the affairs of the religious institution. Committee for Public Education & Re ligious Liberty v. Nyquist, supra, at 772-773; Kurtzman, supra, at 612-613. That inquiry would be irreversibly frustrated if the Establishment Clause were read as permitting a State to pay for whatever it requires a private school to do.

We hold that the lump-sum payments under Chapter 138 violate the Establishment Clause. Since Chapter 138 provides only for a single per-pupil allotment for a variety of specified services, some secular and some potentially religious, neither this Court nor the District Court can properly reduce that allotment to an amount corresponding to the actual costs incurred in performing reimbursable secular services. That is a legislative, not a judicial, function.

Accordingly, the judgment of the District Court is affirmed.

Mr. Justice Douglas, Mr. Justice Brennan, and Mr. Justice Marshall are of the view that affirmance is compelled by our decision today in Committee for Public Education & Religious Liberty v. Nyquist, post, p. 756, and Sloan v. Lemon, post, p. 825.

Mr. Justice White dissents.

       N. Y. Educ. Law § 305 charges the Commissioner of Education with the duty of maintaining general supervision over all schools throughout the State and with making sure that each school is “examined and inspected.”

       The Regents’ examinations are described by appellants Levitt and Nyquist as “state-wide tests of subject matter achievement.” The pupil evaluation program tests, the so-called “PEP Tests,” are also administered throughout the State in grades three, six, and nine.

       The District Court indicated that there was some doubt as to whether teacher-prepared tests are within the scope of the Act. The uncertainty was due to one of appellant Nyquist’s answers to appel-lees’ interrogatories, which stated that “only the Regents Scholarship and January and June Regents Examinations might be regarded as specifically mandated.” 342 F. Supp. 439, 441 (emphasis in original interrogatory). The District Court, however, found it unnecessary to resolve this factual ambiguity, stating: “While our decision as to the constitutionality of the statute does not turn on the factual question so presented, we mention it to illustrate the lack of certainty as to the purposes for which the moneys received are actually used, or, indeed, whether they can be regarded as specifically ‘mandated.’ ” Ibid.

      In this Court, appellants have insisted that since teacher-prepared examinations are required by state regulation they are included within the services reimbursed under the Act. In support of the former proposition, the appellants cite § 176.1 (b) of the Regulations of the Commissioner of Education, which provides that all nonpublic schools “shall conduct in all grades in which instruction is offered a continuing program of individual pupil testing designed to provide an adequate basis for evaluating pupil achievement, and in addition shall administer, rate and report the results of all specific tests or examinations which may be prescribed by the commissioner.” 8 N. Y. C. R.R.§ 176.1 (b).
      Appellees do not contest the validity of appellants’ construction of the Act, and we accept it for the purposes of this litigation.

       Exactly how the $27 and $45 figures were arrived at is somewhat unclear. Appellant Nyquist, in his answer to appellees’ interrogatories in the court below, gave the following explanation:
      “That prior to the enactment of Chapter 138 of the Laws of 1970, a conference was held in which representatives of the Office of the Counsel to the Governor, of the Division of the Budget in the Executive Department and of the State Education Department participated; that at said conference the representatives of the State Education Department were asked whether the dollar amount in question was reasonable and that the answer was that to the best of their judgment the amount was reasonable; that no record of the said conference was made.”

       Subsequent to the enactment of Chapter 138, the state conducted several studies to determine whether the per-pupil allotment under the statute exceeded the actual costs to schools in performing the mandated services. The District Court found the results “cloudy”:
      “If such items as ‘teacher examinations’ and ‘entrance examinations’ are included in the list of ‘mandated services,’ it appears that the schools’ expenses are at least as great as the amounts they receive from the state. But if those items are excluded, the amounts received from the state are substantially greater than the schools’ expenses.” 342 F. Supp., at 441.
      As noted above, the court did not resolve the question whether payments under the Act were intended to compensate schools for internal testing. See n. 3, supra.

       The Court’s holding as to grants of public funds for “maintenance and repair of . . . school facilities and equipment . . is sufficient authority to support affirmance of the District Court holding in this case. The author of this opinion joined that part of the Court’s holding in Nyquist, supra, while dissenting from the holding that tuition grants and tax credits to parents are unconstitutional, and is, of course, bound by all parts of the judgment.

       We do not doubt that the New York Legislature had a “secular legislative purpose” in enacting Chapter 138. See Epperson v. Arkansas, 393 U. S. 97 (1968). The first section of the Act provides that the State has a “primary responsibility” to assure that its youth receive an adequate education; that the State has the “duty and authority” to examine and inspect all schools within its borders to make sure that adequate educational opportunities are being provided; and that the State has a legitimate interest in assisting those schools insofar as they aid the State in fulfilling its responsibility.


author: Me. Chief Justice BuRGer Mr. Justice Douglas, Mr. Justice Brennan,

text:
    HELLER v. NEW YORK
    No. 71-1043.
    Argued November 14, 1972 —
    Decided June 25, 1973

      Burger, C. J., delivered the opinion of the Court, in which White, BlackmuN, Powell, and RehNQüist, JJ., joined. Douglas, J., filed a dissenting opinion, post, p. 494. BreNNAN, J., filed a dissenting opinion, in which Stewart and Marshall, JJ., joined, post, p. 494.

      Irving Anolik argued the cause and filed a brief for petitioner.

      Lewis R. Friedman argued the cause for respondent. With him on the brief were Frank S. Hogan and Michael R. Juviler.

      Briefs of amici curiae urging affirmance were filed by Evelle J. Younger, Attorney General, Edward A. Hinz, Jr., Chief Assistant Attorney General, Doris H. Maier and Edward P. O’Brien, Assistant Attorneys General, and Robert R. Granucci and Clifford K. Thompson, Jr., Deputy Attorneys General, for the State of California; and by Charles H. Keating, Jr., pro se, Richard M. Bertsch, James J. Clancy, and Albert S. Johnston III for Charles H. Keating, Jr.

   Me. Chief Justice BuRGer

delivered the opinion of of the Court.

We granted certiorari in this case to determine whether a judicial officer authorized to issue warrants, who has viewed a film and finds it to be obscene, can issue a constitutionally valid warrant for the film’s seizure as evidence in a prosecution against the exhibitor, without first conducting an adversary hearing on the issue of probable obscenity.

Petitioner was manager of a commercial movie theater in the Greenwich Village area of New York City. On July 29, 1969, a film called “Blue Movie” was exhibited there. The film depicts a nude couple engaged in ultimate sexual acts. Three police officers saw part of the film. Apparently on the basis of their observations, an assistant district attorney of New York County requested a judge of the New York Criminal Court to see a performance. On July 31, 1969, the judge, accompanied by a police inspector, purchased a ticket and saw the entire film. There were about 100 other persons in the audience. Neither the judge nor the police inspector recalled any signs restricting admission to adults.

At the end of the film, the judge, without any discussions with the police inspector, signed a search warrant for the seizure of the film and three “John Doe” warrants for the arrest of the theater manager, the projectionist, and the ticket taker, respectively. No one at the theater was notified or consulted prior to the issuance of the warrants. The judge signed the warrants because “it was, and is my opinion that that film is obscene, and was obscene as I saw it then under the definition of obscene, that is [in] . . . section 235.00 of the Penal Law.” Exhibition of an obscene film violates New York Penal Law § 235.05.

The warrants were immediately executed by police officers. Three reels, composing a single copy of the film, were seized. Petitioner, the theater manager, was arrested, as were the projectionist and the ticket taker. No pretrial motion was made for the return of the film or for its suppression as evidence. Nor did petitioner make a pretrial claim that seizure of the film prevented its exhibition by use of another copy, and the record does not conclusively indicate whether such a copy was available. On September 16, 1969, 47 days after his arrest and the seizure of the movie, petitioner came to trial, a jury having been waived, before three judges of the New York City Criminal Court.

At trial, the prosecution’s case rested almost solely on testimony concerning the arrests and the seizure of the film, together with the introduction into evidence of the seized film itself. The film was exhibited to the trial judges. The defense offered three “expert” witnesses: an author, a professor of sociology, and a newspaper writer. These witnesses testified that the film had social, literary, and artistic importance in illustrating “a growing and important point of view about sexual behavior” as well as providing observations “about the political and social situation in this country today. . . .” Petitioner testified that the theater’s employees were instructed not to admit persons who appeared to be under 18 years of age, unless they “had identification” that they were 18. Petitioner also testified that there was a sign at the box office stating that “no one under 17 [would be] admitted.” Both at the end of the prosecution’s case and his own case, petitioner moved to dismiss the indictment on the ground that the seizure of the film, without a prior adversary hearing, violated the Fourteenth Amendment.

At the close of trial on September 17, 1969, petitioner was found guilty by all three judges of violating New York Penal Law § 235.05. On appeal, both the Supreme Court of the State of New York, Appellate Term, and the Court of Appeals of the State of New York viewed the film and affirmed petitioner’s conviction. The Court of Appeals, relying on this Court’s opinion in Lee Art Theatre v. Virginia, 392 U. S. 636, 637 (1968), held that an adversary hearing was not required prior to seizure of the film, and that the judicial determination which occurred prior to seizure in this case was constitutionally sufficient. In so holding, the Court of Appeals explicitly disapproved, as going “beyond any requirement imposed on State courts by the Supreme Court,” Astro Cinema Corp. v. Mackell, 422 F. 2d 293 (CA2 1970), and Bethview Amusement Corp. v. Cahn, 416 F. 2d 410 (CA2 1969), cert. denied, 397 U. S. 920 (1970), cases requiring an adversary hearing prior to any seizure of movie film. 29 N. Y. 2d 319, 323, 277 N. E. 2d 651, 653 (1971).

We affirm this holding of the Court of Appeals of the State of New York. This Court has never held, or even implied, that there is an absolute First or Fourteenth Amendment right to a prior adversary hearing applicable to all cases where allegedly obscene material is seized. See Times Film Corp. v. Chicago, 365 U. S. 43 (1961); Kingsley Books, Inc. v. Brown, 354 U. S. 436, 440-442-(1957). In particular, there is no such absolute right where allegedly obscene material is seized, pursuant to a warrant, to preserve the material as evidence in a criminal prosecution. In Lee Art Theatre v. Virginia, supra, the Court went so far as to suggest that it was an open question whether a judge need “have viewed the motion picture before issuing the warrant.” Here the judge viewed the entire film and, indeed, witnessed the alleged criminal act. It is not contested that the judge was a “neutral, detached magistrate,” that he had a full opportunity for independent judicial determination of probable cause prior to issuing the warrant, and that he was able to “focus searchingly on the question of obscenity.” See Marcus v. Search Warrant, 367 U. S. 717, 731-733 (1961). Cf. Coolidge v. New Hampshire, 403 U. S. 443, 449-453 (1971); Giordenello v. United States, 357 U. S. 480, 485-486 (1958); Johnson v. United States, 333 U. S. 10, 14-15 (1948).

In United States v. Thirty-seven Photographs, 402 U. S. 363 (1971), and Freedman v. Maryland, 380 U. S. 51 (1965), we held that “ ‘because only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint.’ ” 402 U. S., at 367, quoting 380 U. S., at 58 (emphasis added). Those cases involved, respectively, seizure of imported materials by federal customs agents and state administrative licensing of motion pictures, both civil procedures directed at absolute suppression of the materials themselves. Even in those cases, we did not require that the adversary proceeding must take place prior to initial seizure. Rather, it was held that a judicial determination must occur “promptly so that administrative delay does not in itself become a form of censorship.” United States v. Thirty-seven Photographs, supra, at 367; Freedman v. Maryland, supra, at 57—59. See Blount v. Rizzi, 400 U. S. 410, 419-421 (1971); Teitel Film Corp. v. Cusack, 390 U. S. 139, 141-142 (1968); Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 70-71 (1963).

In this case, of course, the film was not subjected to any form of “final restraint,” in the sense of being enjoined from exhibition or threatened with destruction. A copy of the film was temporarily detained in order to preserve it as evidence. There has been no showing that the seizure of a copy of the film precluded its continued exhibition. Nor, in this case, did temporary restraint in itself “become a form of censorship,” even making the doubtful assumption that no other copies of the film existed. Cf. United States v. Thirty-seven Photographs, supra, at 367; Freedman v. Maryland, supra, at 57-59. A judicial determination of obscenity, following a fully adversary trial, occurred within 48 days of the temporary seizure. Petitioner made no pretrial motions seeking return of the film or challenging its seizure, nor did he request expedited judicial consideration of the obscenity issue, so it is entirely possible that a prompt judicial determination of the obscenity issue in an adversary proceeding could have been obtained if petitioner had desired. Although we have refrained from establishing rigid, specific time deadlines in proceedings involving seizure of allegedly obscene material, we have definitely excluded from any consideration of “promptness” those delays caused by the choice of the defendant. See United States v. Thirty-seven Photographs, supra, at 373-374. In this case, the barrier to a prompt judicial determination of the obscenity issue in an adversary proceeding was not the State, but petitioner’s decision to waive pretrial motions and reserve the obscenity issue for trial. Cf. Kingsley Books, Inc. v. Brown, 354 U. S., at 439.

Petitioner’s reliance on the Court’s decisions in A Quantity of Books v. Kansas, 378 U. S. 205 (1964), and Marcus v. Search Warrant, 367 U. S. 717 (1961), is misplaced. Those cases concerned the seizure of large quantities of books for the sole purpose of their destruction, and this Court held that, in those circumstances, a prior judicial determination of obscenity in an adversary proceeding was required to avoid “danger of abridgment of the right of the public in a free society to unobstructed circulation of nonobscene books.” A Quantity of Books v. Kansas, supra, at 213. We do not disturb this holding. Courts will scrutinize any large-scale seizure of books, films, or other materials presumptively protected under the First Amendment to be certain that the requirements of A Quantity of Books and Marcus are fully met. “ ‘Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.’ ” New York Times Co. v. United States, 403 U. S. 713, 714 (1971), quoting Bantam Books, Inc. v. Sullivan, 372 U. S., at 70; Organization for a Better Austin v. Keefe, 402 U. S. 415, 419 (1971); Carroll v. Princess Anne, 393 U. S. 175, 181 (1968). See Near v. Minnesota, 283 U. S. 697 (1931).

But seizing films to destroy them or to block their distribution or exhibition is a very different matter from seizing a single copy of a film for the bona fide purpose of preserving it as evidence in a criminal proceeding, particularly where, as here, there is no showing or pretrial claim that the seizure of the copy prevented continuing exhibition of the film. If such a seizure is pursuant to a warrant, issued after a determination of probable cause by a neutral magistrate, and, following the seizure, a prompt judicial determination of the obscenity issue in an adversary proceeding is available at the request of any interested party, the seizure is constitutionally permissible. In addition, on a showing to the trial court that other copies of the film are not available to the exhibitor, the court should permit the seized film to be copied so that showing can be continued pending a judicial determination of the obscenity issue in an adversary proceeding. Otherwise, the film must be returned.

With such safeguards, we do not perceive that an adversary hearing prior to a seizure by lawful warrant would materially increase First Amendment protection. Cf. Carroll v. Princess Anne, supra, at 183-184. The necessity for a prior judicial determination of probable cause will protect against gross abuses, while the availability of a prompt judicial determination in an adversary proceeding following the seizure assures that difficult marginal cases will be fully considered in light of First Amendment guarantees, with only a minimal interference with public circulation pending litigation. The procedure used by New York in this case provides such First Amendment safeguards, while also serving the public interests in full and fair prosecution for obscenity offenses. Counsel for New York has argued that movie films t^nd to “disappear” if adversary hearings are afforded prior to seizure. We take judicial notice that such films may be compact, readily transported for exhibition in other jurisdictions, easily destructible, and particularly susceptible to alteration by cutting and splicing critical parts of film.

Petitioner also challenged his conviction on substantive, as opposed to procedural, ground arguing that he was convicted under standards of obscenity both over-broad and unconstitutionally vague. In addition, petitioner argues that films shown only to consenting adults in private have a particular claim to constitutional protection. In Miller v. California, ante, p. 15, and Paris Adult Theatre I v. Slaton, ante, p. 49, decided June 21, 1973, we dealt with these substantive issues. A majority of this Court has now approved guidelines for the lawful state regulation of obscene material. The judgment of the Court of Appeals of the State of New York is therefore vacated and this case remanded for the sole purpose of affording the New York courts an opportunity to reconsider these substantive issues in light of Miller and Paris Adult Theatre I. See United States v. 12 200-ft. Reels of Film, ante, at 130 n. 7.

Vacated and remanded.

Mr. Justice Douglas,

dissenting.

I would reverse outright in each of these cases as, in my view, the underlying obscenity statute violates the First Amendment for the reasons stated in my dissenting opinions in Miller v. California, ante, p. 37, and United States v. 12 200-ft. Reels of Film, ante, p. 130.

Mr. Justice Brennan,

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

We granted certiorari to consider the holding of the Court of Appeals of New York that the Constitution does not require an adversary hearing on obscenity prior to a judge's issuance of warrants for the seizure of a film and for the arrest of the film’s exhibitor. 29 N. Y. 2d 319, 277 N. E. 2d 651 (1971). The statute under which the prosecution was brought is, in my view, unconstitutionally overbroad and therefore invalid on its face. See my dissent in Paris Adult Theatre I v. Slaton, ante, p. 73. I would therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings not inconsistent with my dissenting opinion in Slaton. In that circumstance, I have no occasion to consider whether, assuming that a prosecution could properly be brought, the seizure of the film at issue here was constitutional.

       The prosecution presented no evidence that juveniles were actually present in the theater.

       New York Penal Law §235.05 reads in relevant part:
      “A person is guilty of obscenity when, knowing its content and character, he:
      “1. Promotes, or possesses with intent to promote, any obscene material; or
      "2. Produces, presents or directs an obscene performance or participates in a portion thereof which is obscene or which contributes to its obscenity.

        “Obscenity is a class A misdemeanor.”
      The terms used in § 235.05 are defined by New York Penal Law §235.00, which reads in relevant part:
      “The following definitions are applicable to sections 235.05, 235.10 and 235.15:
      “1. 'Obscene.' Any material or performance is ‘obscene’ if (a) considered as a whole, its predominant appeal is to prurient, shameful or morbid interest in nudity, sex, excretion, sadism or masochism, and (b) it goes substantially beyond customary limits of candor in describing or representing such matters, and (c) it is utterly without redeeming social value. Predominant appeal shall be judged with reference to ordinary adults unless it appears from the character of the material or the circumstances of its dissemination to be designed for children or other specially susceptible audience.
      “2. ‘Material’ means anything tangible which is capable of being used or adapted to arouse interest, whether through the medium of reading, observation, sound or in any other manner.
      “3. ‘Performance’ means any play, motion picture, dance or other exhibition performed before an audience.
      “4. ‘Promote’ means to manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate, present, exhibit or advertise, or to offer or agree to do the same.”

       The cases against the ticket taker and projectionist were dismissed on the motion of the prosecutor.

       “It is true that a judge may read a copy of a book in courtroom or chambers but not as easily arrange to see a motion picture there. However, we need not decide in this case whether the justice of the peace should have viewed the motion picture before issuing the warrant. The procedure under which the warrant issued solely upon the conclusory assertions of the police officer without any inquiry by the justice of the peace into the factual basis for the officer’s conclusions was not a procedure ‘designed to focus searchingly on the question of obscenity,’ [Marcus v. Search Warrant, 367 U. S. 717], at 732, and therefore fell short of constitutional requirements demanding necessary sensitivity to freedom of expression. See Freedman v. Maryland, 380 U. S. 51, 58-59.” 392 U. S., at 637.

       We further held “(1) there must be assurance, ‘by statute or authoritative judicial construction, that the censor will, within a specified brief period, either issue a license or go to court to restrain showing the film'; (2) ‘[a]ny restraint imposed in advance of a final judicial determination on the merits must similarly be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution’; and (3) ‘the procedure must also assure a prompt final judicial decision’ to minimize the impact of possibly erroneous administrative action. [Freedman v Maryland, 380 U. S.], at 58-59.” United States v. Thirty-seven Photographs, 402 U. S., at 367.

       The State of New York has represented that it stands ready to grant “immediate” adversary hearings on pretrial motions challenging seizures of material arguably protected by the First Amendment. No such motion was made by petitioner.

       In particular, Marcus involved seizure by police officers acting pursuant to a general warrant of 11,000 copies of 280 publications. 367 U. S., at 723. Unlike this case, there was no independent judicial determination of obscenity by a neutral, detached magistrate, nor were the seizures made to preserve evidence for a criminal prosecution. Id., at 732. The sole purpose was to seize the articles as contraband and to cause them “to be publicly destroyed, by burning or otherwise.” Id., at 721 n. 6. In A Quantity of Books v. Kansas, 378 U. S. 205 (1964), 1,715 copies of 31 publications were seized by a county sheriff, also without any prior judicial determination of obscenity and, again, for the sole purpose of destroying the publications as contraband. Id., at 206-209.

       In Mishkin v. New York, 383 U. S. 502 (1966), this Court refused to review the legality of a seizure of books challenged under A Quantity of Books, supra, primarily because the record did not reveal the number of books seized as evidence under the warrant or “whether the books seized . . . were on the threshold of dissemination.” Id., at 613. If A Quantity of Books applied to all seizures of obscene material, there would have been no need for the Court to abstain from review in Mishkin, since the parties had conceded that there was no prior adversary hearing. This is not to say that multiple copies of a single film may be seized as purely cumulative evidence, or that a State may circumvent Marcus or A Quantity of Books by incorporating, as an element of a criminal offense, the number of copies of the obscene materials involved.

       By “prompt,” we mean the shortest period “compatible with sound judicial resolution.” See United States v. Thirty-seven Photographs, 402 U. S., at 367; Blount v. Rizzi, 400 U. S. 410, 417 (1971); Freedman v. Maryland, 380 U. S. 61, at 68-69 (1965).

       At oral argument, counsel for petitioner agreed that a prompt opportunity to obtain a copy from the seized film at “an independent lab under circumstances that would assure that there was no tampering with the film” with the original returned within “24 hours” would “satisfy” his “First Amendment position.” Tr. of Oral Arg. 28. Petitioner never requested such a copy below.

       Failure to permit copying of seized material adversely affects First Amendment interests; prompt copying of seized material should be permitted. If copying is denied, return of the seized material should be required. On the other hand, violations of Fourth Amendment standards would require that the seized material be excluded from evidence. See Roaden v. Kentucky, post, p. 496; Lee Art Theatre v. Virginia, 392 U. S., at 637. Cf. Mapp v. Ohio, 367 U. S. 643 (1961).

      This opinion applies also to No. 71-1134, Roaden v. Kentucky, post, p. 496.

      N. Y. Penal Law § 235.05:
      “A person is guilty of obscenity when, knowing its content and character, he:
      “1. Promotes, or possesses with intent to promote, any obscene material; or
      “2. Produces, presents or directs an obscene performance or participates in a portion thereof which is obscene or which contributes to its obscenity.”


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

text:
    ROADEN v. KENTUCKY
    No. 71-1134.
    Argued November 14, 1972 —
    Decided June 25, 1973
    Burger, C. J., delivered the opinion of the Court, in which White, Blacicmun, Powell, and Rehnquist, JJ., joined. Brennan, J., filed an opinion concurring in the judgment in which Stewart and Marshall, JJ., joined, post, p. 507. Douglas, J., filed a dissenting opinion, ante, p. 494.

      Phillip K. Wicker argued the cause and filed a brief for petitioner.

      Robert V. Bullock, Assistant Attorney General of Kentucky, argued the cause for respondent. With him on the brief was Ed. W. Hancock, Attorney General.

        Charles H. Keating, Jr., filed a brief as amicus curiae urging affirmance.

   Mr. Chief Justice Burger

delivered the opinion of of the Court.

The question presented in this case is whether the seizure of allegedly obscene material, contemporaneous with and as an incident to an arrest for the public exhibition of such material in a commercial theater may be accomplished without a warrant.

On September 29, 1970, the sheriff of Pulaski County, Kentucky, accompanied by the district prosecutor, purchased tickets to a local drive-in theater. There the sheriff observed, in its entirety, a film called “Cindy and Donna” and concluded that it was obscene and that its exhibition was in violation of a state statute. A substantial part of the film was also observed by a deputy sheriff from a vantage point on the road outside the theater. Since the petitioner conceded the obscenity of the film at trial, that issue is not before us for decision.

The sheriff, at the conclusion of the film, proceeded to the projection booth, where he arrested petitioner, the manager of the theater, on the charge of exhibiting an obscene film to the public contrary to Ky. Rev. Stat. § 436.101 (1973). Concurrent with the arrest, the sheriff seized one copy of the film for use as evidence. It is uncontested: (a) that the sheriff had no warrant when he made the arrest and seizure, (b) that there had been no prior determination by a judicial officer on the question of obscenity, and (c) that the arrest was based solely on the sheriff’s observing the exhibition of the film.

On September 30, 1970, the day following the arrest of petitioner and the seizure of the film, the Grand Jury of Pulaski County heard testimony concerning the scenes and content of the film and returned an indictment charging petitioner with exhibiting an obscene film in violation of Ky. Rev. Stat. § 436.101. On October 3, 1970, petitioner entered a plea of not guilty in the Pulaski Circuit Court, and the case was set for trial. On October 12, 1970, petitioner filed a motion to suppress the film as evidence and to dismiss the indictment. The motion was predicated upon the ground that the film was “improperly, unlawfully and illegally seized, contrary to . . . the laws of the land.” Four days later, on October 16, 1970, the Pulaski Circuit Court heard argument at an adversary hearing on petitioner’s motion. The motion was denied.

Petitioner’s trial began on October 20, 1970. The arresting sheriff and one of his deputies were the only witnesses for the prosecution. The sheriff testified that the film displayed nudity and “intimate love scenes.” The sheriff further testified that, upon viewing the film, he determined that it was obscene and that its exhibition violated state law. He therefore arrested petitioner. Together with the testimony of the sheriff, the film itself was introduced in evidence. Petitioner's motion to suppress the film was renewed, and again overruled. The sheriff’s deputy took the stand and testified that he had viewed the final 30 minutes of the film from a vantage point on a public road outside the theater. Following this testimony, the jury was permitted to see the film.

Petitioner testified in his own behalf. He stated that, to his knowledge, no juveniles had been admitted to see the film, and that he had received no complaints about the film until it was seized by the sheriff. At the close of his testimony, the jury found petitioner guilty as charged. The jury rendered both a general verdict of guilty and a special verdict that the film was obscene, as provided by Ky. Rev. Stat. §436.101 (8).

On appeal, the Court of Appeals of Kentucky affirmed petitioner’s conviction. The Court of Appeals first emphasized that “[i]t was conceded by [petitioner’s] counsel in closing argument to the jury that the film is obscene. No issue is presented on appeal as to the obscenity of the material.” 473 S. W. 2d 814, 815 (1971). The Court of Appeals then held that the film was properly seized incident to a lawful arrest, distinguishing the holdings of this Court in A Quantity of Books v. Kansas, 378 U. S. 205 (1964), and Marcus v. Search Warrant, 367 U. S. 717 (1961), on the ground that those decisions related to seizure of allegedly obscene materials “for destruction or suppression, not to seizures incident to an arrest for possessing, selling, or exhibiting a specific item.” 473 S. W. 2d, at 815. It also distinguished Lee Art Theatre v. Virginia, 392 U. S. 636 (1968), on the grounds that there film “had been seized pursuant to a [defective] search warrant, not incident to an arrest.” 473 S. W. 2d, at 816. The Court of Appeals relied on a decision of a federal three-judge court in Hosey v. City of Jackson, 309 F. Supp. 527 (SD Miss. 1970), which concluded that:

“[Sjeizure of an allegedly obscene film as an incident to lawful arrests for a crime committed in the presence of the arresting officers, i. e., the public showing of such film, does not exceed constitutional bounds in the absence of a prior judicial hearing on the question of its obscenity.” Id., at 533.

The Court of Appeals specifically declined to follow a decision by another federal three-judge court in Ledesma v. Perez, 304 F. Supp. 662 (ED La. 1969), which held unconstitutional the seizure of allegedly obscene material incident to an arrest, but without a warrant or a prior adversary hearing.

I

The Fourth Amendment proscription against “unreasonable . . . seizures,” applicable to the States through the Fourteenth Amendment, must not be read in a vacuum. A seizure reasonable as to one type of material in one setting may be unreasonable in a different setting or with respect to another kind of material. Cf. Coolidge v. New Hampshire, 403 U. S. 443, 471-472 (1971); id., at 509-510 (Black, J., concurring and dissenting); id., at 512-513 (White, J., concurring and dissenting). The question to be resolved is whether the seizure of the film without a warrant was unreasonable under Fourth Amendment standards and, if so, whether the film was therefore inadmissible at-the trial. The seizure of instruments of a crime, such as a pistol or a knife, or “contraband or stolen goods or objects dangerous in themselves,” id., at 472, are to be distinguished from quantities of books and movie films when a court appraises the reasonableness of the seizure under Fourth or Fourteenth Amendment standards.

Marcus v. Search Warrant, supra, held that a warrant for the seizure of allegedly obscene books could not be issued on the conclusory opinion of a police officer that the books sought to be seized were obscene. Such a warrant lacked the safeguards demanded “to assure nonobscene material the constitutional protection to which it is entitled. . . . [T]he warrants issued on the strength of the conclusory assertions of a single police officer, without any scrutiny by the judge of any materials considered by the complainant to be obscene.” 367 U. S., at 731-732. There had been “no step in the procedure before seizure designed to focus searchingly on the question of obscenity.” Id., at 732.

The sense of this holding was reaffirmed in A Quantity of Books v. Kansas, supra, where the Court found unconstitutional a “massive seizure” of books from a commercial bookstore for the purpose of destroying the books as contraband. The result was premised on the lack of an adversary hearing prior to seizure, and the Court did not find it necessary to reach the claim that the seizure violated Fourth Amendment standards. 378 U. S., at 210 n. 2. However, the Court emphasized:

“It is no answer to say that obscene books are contraband, and that consequently the standards governing searches and seizures of allegedly obscene books should not differ from those applied with respect to narcotics, gambling paraphernalia and other contraband. We rejected that proposition in Marcus.” Id., at 211-212.

Lee Art Theatre v. Virginia, supra, was to the same effect with regard to seizure of a film from a commercial theater regularly open to the public. There a warrant for the seizure of the film was issued on the basis of a police officer’s affidavit giving the titles of the film and asserting in conclusory fashion that he had personally viewed the films and considered them obscene. The films were seized pursuant to the warrant and introduced into evidence in a criminal case against the exhibitor. Conviction ensued. On review, the Court held that “[t]he admission of the films in evidence requires reversal of petitioner’s conviction” because

“[t]he procedure under which the warrant issued solely upon the conclusory assertions of the police officer without any inquiry by the justice of the peace into the factual basis for the officer’s conclusions was not a procedure 'designed to focus searchingly on the question of obscenity,’ id., [Marcus v. Search Warrant, supra] at 732, and therefore fell short of constitutional requirements demanding necessary sensitivity to freedom of expression.” 392 U. S., at 637.

No mention was made in the brief per curiam Lee Art Theatre opinion as to whether or not the seizure was incident to an arrest. The Court relied on Marcus and A Quantity of Books.

The common thread of Marcus, A Quantity of Books, and Lee Art Theatre is to be found in the nature of the materials seized and the setting in which they were taken. See Stanford v. Texas, 379 U. S. 476, 486 (1965). In each case the material seized fell arguably within First Amendment protection, and the taking brought to an abrupt halt an orderly and presumptively legitimate distribution or exhibition. Seizing a film then being exhibited to the general public presents essentially the same restraint on expression as the seizure of all the books in a bookstore. Such precipitate action by a police officer, without the authority of a constitutionally sufficient warrant, is plainly a form of prior restraint and is, in those circumstances, unreasonable under Fourth Amendment standards. The seizure is unreasonable, not simply because it would have been easy to secure a warrant, but rather because prior restraint of the right of expression, whether by books or films, calls for a higher hurdle in the evaluation of reasonableness. The setting of the bookstore or the commercial theater, each presumptively under the protection of the First Amendment, invokes such Fourth Amendment warrant requirements because we examine what is “unreasonable” in the light of the values of freedom of expression. As we stated in Stanford v. Texas, supra:

“In short, . . . the constitutional requirement that warrants must particularly describe the ‘things to be seized’ is to be accorded the most scrupulous exactitude when the ‘things’ are books, and the basis for their seizure is the ideas which they contain. See Marcus v. Search Warrant, 367 U. S. 717; A Quantity of Books v. Kansas, 378 U. S. 205. No less a standard could be faithful to First Amendment freedoms. The constitutional impossibility of leaving the protection of those freedoms to the whim of the officers charged with executing the warrant is dramatically underscored by what the officers saw fit to seize under the warrant in this case.” 379 U. S., at 485 (footnotes omitted).

Moreover, ordinary human experience should teach that the seizure of a movie film from a commercial theater with regularly scheduled performances, where a film is being played and replayed to paid audiences, presents a very different situation from that in which contraband is changing hands or where a robbery or assault is being perpetrated. In the latter settings, the probable cause for an arrest might justify the seizure of weapons, or other evidence or instruments of crime, without a warrant. Cf. Chimel v. California, 395 U. S. 752, 764 (1969); id., at 773-774 (White, J., dissenting); Preston v. United States, 376 U. S. 364, 367 (1964). Where there are exigent circumstances in which police action literally must be “now or never” to preserve the evidence of the crime, it is reasonable to permit action without prior judicial evaluation. See Chambers v. Maroney, 399 U. S. 42, 47-51 (1970). Cf. Carroll v. United States, 267 U. S. 132 (1925). The facts surrounding the “massive seizures” of books in Marcus and A Quantity of Books, or the seizure of the film in Lee Art Theatre, presented no such “now or never” circumstances.

II

The film seized in this case was being exhibited at a commercial theater showing regularly scheduled performances to the general public. The seizure proceeded solely on a police officer’s conclusions that the film was obscene; there was no warrant. Nothing prior to seizure afforded a magistrate an opportunity to “focus searchingly on the question of obscenity.” See Heller v. New York, ante, at 488-489; Marcus v. Search Warrant, 367 U. S., at 732. If, as Marcus and Lee Art Theatre held, a warrant for seizing allegedly obscene material may not issue on the mere conclusory allegations of an officer, a fortiori, the officer may not make such a seizure with no warrant at all. “The use by government of the power of search and seizure as an adjunct to a system for the suppression of objectionable publications is not new. . . . The Bill of Rights was fashioned against the background of knowledge that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression.” Marcus v. Search Warrant, supra, at 724, 729. In this case, as in Lee Art Theatre, the admission of the film in evidence requires reversal of petitioner’s conviction. 392 U. S., at 637.

The judgment of the Court of Appeals of Kentucky is reversed and this case remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

[For dissenting opinion of Mr. Justice Douglas, see ante, p. 494.]

Mr. Justice Brennan,

with whom Mr. Justice Stewart and Mr. Justice Marshall join, concurring in the judgment.

We granted certiorari to consider the holding of the Court of Appeals of Kentucky that the Constitution does not require an adversary hearing on obscenity prior to the seizure of reels of film, where the seizure is incident to the arrest of the manager of a drive-in movie theater. 473 S. W. 2d 814 (1971). The statute under which the prosecution was brought is, in my view, unconstitutionally overbroad and therefore invalid on its face. See my dissent in Paris Adult Theatre I v. Slaton, ante, p. 73. I would therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings not inconsistent with my dissenting opinion in Slaton.

       Petitioner’s lawyer made the following statement to the trial jury during the closing arguments:
      “I would be good enough to tell you at the outset that, in behalf of Mr. Roaden, I am not going to get up here and defend the film observed yesterday nor the revolting scenes in it or try to argue or persuade you that those scenefs] were not obscene.” App. 37.

       Kentucky Revised Statutes §436.101 (1973), reads in relevant part as follows:
      “Obscene matter, distribution, penalties, destruction.
      “(1) As used in this section:
      “(a) 'Distribute' means to transfer possession of, whether with or without consideration.
      “(b) ‘Matter’ means any book, magazine, newspaper, or other printed or written material or any picture, drawing, photograph, motion picture, or other pictorial representation or any statue or other figure, or any recording, transcription or mechanical, chemical or electrical reproduction or any other articles, equipment, machines or materials.
      “(c) 'Obscene’ means that to the average person, applying contemporary standards, the predominant appeal of the matter, taken as a whole, is to prurient interest, a shameful or morbid interest in nudity, sex, or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters.
      “(d) 'Person’ means any individual, partnership, firm, association, corporation, or other legal entity.
      “(2) Any person who, having knowledge of the obscenity thereof, sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state prepares, publishes, prints, exhibits, distributes, or offers to distribute, or has in his possession with intent to distribute or to exhibit or offer to distribute, any obscene matter is punishable by fine of not more than $1,000 plus five dollars ($5.00) for each additional unit of material coming within the provisions of this chapter, which is involved in the offense, not to exceed ten thousand dollars ($10,000), or by imprisonment in the county jail for not more than six (6) months plus one (1) day for each additional unit of material coming -within the provisions of this chapter, and which is involved in the offense, such basic maximum and additional days not to exceed 360 days in the county jail, or by both such fine and imprisonment. If such person has previously been convicted of a violation of this subsection, he is punishable by fine of not more than $2,000 plus five dollars ($5.00) for each additional unit of material coming within the provisions of this chapter, which is involved in the offense, not to exceed $25,000, or by imprisonment in the county jail for not more than one (1) year, or by both such fine and such imprisonment. If a person has been twice convicted of a violation of this section, a violation of this subsection is punishable by imprisonment in the state penitentiary not exceeding five (5) years.
      “(8) The jury, or the court, if a jury trial is waived, shall render a general verdict, and shall also render a special verdict as to whether the matter named in the charge is obscene. The special verdict or findings on the issue of obscenity may be: ‘We find the . . . (title or description of matter) to be obscene,’ or, ‘We find the . . . (title or description of matter) not to be obscene/ as they may find each item is or is not obscene.
      “ (9) Upon the conviction of the accused, the court may, when the conviction becomes final, order any matter or advertisement, in respect whereof the accused stands convicted, and which remains in the possession or under the control of the attorney general, commonwealth’s attorney, county attorney, city attorney or their authorized assistants, or any law enforcement agency, to be destroyed, and the court may cause to be destroyed any such material in its possession or under its control.”

       We vacated the judgment in Hosey v. City of Jackson, 309 F. Supp. 527 (SD Miss. 1970), on the grounds of the Court’s policy of noninterference in state prosecution; we did not reach the merits. Hosey v. City of Jackson, 401 U. S. 987 (1971). We also vacated the judgment in Ledesma v. Perez, 304 F. Supp. 662 (ED La. 1969), again on the grounds of noninterference with state criminal proceedings prior to adjudications by state courts. Perez v. Ledesma, 401 U. S. 82 (1971).

       In Stanford v. Texas, supra, we acknowledged the difference between books and weapons, narcotics, or cases of whiskey.

       This does not mean an adversary proceeding is needed before seizure, since a warrant may be issued ex parte. Heller v. New York, ante, p. 483.

       Counsel for Kentucky, together with counsel for New York in Heller v. New York, ante, at 493, and counsel for California as amicus curiae in Heller, have emphasized that allegedly obscene films are particularly difficult evidence to preserve unless kept in custody. We again take judicial notice that films may be compact, may be easy to destroy or to remove to another jurisdiction, and may be subject to pretrial alterations by cutting out scenes and resplicing reels. See ibid. But, as the Heller case demonstrates, where films are scheduled for exhibition in a commercial theater open to the public, procuring a warrant based on a prior judicial determination of probable cause of obscenity need not risk loss of the evidence.

      Ky. Rev. Stat. § 436.101 (2) provides in part that
      “Any person who, having knowledge of the obscenity thereof, sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state prepares, publishes, prints, exhibits, distributes, or offers to distribute, or has in his possession with intent to distribute or to exhibit or offer to distribute, any obscene matter is punishable by fine of not more than §1,000 ... or by imprisonment in the county jail for not more than six (6) months . . .