Issue 8

Better a Catholic Than a Communist

In 1948, the Supreme Court in McCollum v. Board of Education declared a “released time” program for religious instruction in the Champaign, Illinois, public schools unconstitutional. Four years later in Zorach v. Clauson, the Court upheld an almost identical program in the New York City public schools. The Court distinguished the two programs on the grounds that the instruction in Champaign occurred in the school building, while the instruction in New York occurred off school grounds.

It is clear this factual distinction was persuasive to at least one justice, yet Justice Douglas inexplicably included in his opinion for the Court another justification for finding the New York plan constitutional. He wrote that Americans “are a religious people whose institutions presuppose a Supreme Being.”

This Note offers an explanation for Justice Douglas’s appeal to Americans as a religious people and contends that the argument was persuasive to the majority, save for Justice Burton. It argues that increasing post-war anti-Catholicism and the Court’s decision in Everson created a climate in 1948 where the country was concerned with a growing Catholic influence in the public schools. Following Everson, McCollum provided the Court with an opportunity to draw a line and establish Mr. Jefferson’s high wall, so much discussed in Everson, between the church and state sponsored education. 

Following McCollum, however, the country’s concern shifted to Communism. With this shift, the country’s perception of “released time” public education changed. Instead of viewing these programs as opportunities for Catholic influence in the public schools, the country viewed public religious education as an opportunity to oppose the spread of “Godless Communism,” and opposition to “released time” education was characterized as support for totalitarianism.
This Note posits that Justice Douglas’s appeal to the religious character of America reflected the changed historical context from McCollum to Zorach, namely, that by 1952 it was better to be a Catholic than a Communist.

The Case for For-Profit Charities

Nonprofit firms may earn profits, but they may not distribute them to any affiliated persons. If a nonprofit firm has a “charitable” purpose under § 501(c)(3) of the tax code, the firm receives numerous tax advantages. For example, donors may deduct their donations to the firm from their taxable personal income. For-profit firms may distribute profits to affiliated persons, but receives no tax advantages for engaging in “charitable” activities. We argue that the law should not link tax benefits to corporate form in this way. There may be good arguments for recognizing the nonprofit form and good arguments for providing tax subsidies to charitable firms, but there is no good argument for making those tax subsidies available only to charities that adopt the nonprofit form. Indeed, there are reasons to think the ability to distribute profits to affiliates may both increase and improve charitable activities. Moreover, the extensive charitable activities of many for-profit commercial firms suggest that in the absence of discriminatory tax treatment for-profit charities would flourish. Therefore, the current tax benefits offered to charitable nonprofits should be extended to for-profit charities, and to the charitable activities of for-profit commercial firms.

A New Model of Administrative Enforcement

This Essay proposes a new method of monitoring regulatory compliance by a firm that operates multiple sources of risk, such as air polluting smokestacks. The expense of individually monitoring such sources may consume a large share of the agency’s enforcement budget, undermining deterrence objectives. Under our approach, regulators would instead randomly select one of the firm’s sources of risk, determine the firm’s liability at that source, and apply that outcome perforce as determinative of liability at all of the sources. This method, which we call single-outcome sampling (“SOS”), replicates or improves deterrence generated by the current source-by-source enforcement model, but at a fraction of the cost. To demonstrate these benefits, we apply SOS to the EPA’s monitoring of compliance with Clean Air Act regulations. We also address potential risk-bearing and judgment-proof costs associated with our proposal and explain how both problems can be solved.

©Virginia Law Review Association. All rights reserved.