Cady v. Dombrowski

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Syllabus

No. 72-586. Argued March 21, 1973—Decided June 21, 1973

Respondent had a one-car accident near a small Wisconsin town, while driving a rented Ford. The police had the car towed to a garage seven miles from the police station, where it was left unguarded outside. Respondent was arrested for drunken driving. Early the next day, an officer, looking for a service revolver which respondent (who had identified himself as a Chicago policeman) was thought to possess, made a warrantless search of the car and found in the trunk several items, some bloodied, which he removed. Later, on receipt of additional information emanating from respondent, a blood-stained body was located on respondent’s brother’s farm in a nearby county. Thereafter, through the windows of a disabled Dodge which respondent had left on the farm before renting the Ford, an officer observed other bloodied items. Following issuance of a search warrant, materials were taken from the Dodge, two of which (a sock and floor mat) were not listed in the return on the warrant among the items seized. Respondent’s trial for murder, at which items seized from the cars were introduced in evidence, resulted in conviction which was upheld on appeal. In this habeas corpus action, the Court of Appeals reversed the District Court and held that certain evidence at the trial had been unconstitutionally seized. Held:

1. The warrantless search of the Ford did not violate the Fourth Amendment as made applicable to the States by the Fourteenth. The search was not unreasonable since the police had exercised a form of custody of the car, which constituted a hazard on the highway, and the disposition of which by respondent was precluded by his intoxicated and later comatose condition; and the revolver search was standard police procedure to protect the public from a weapon’s possibly falling into improper hands. Preston v. United States, 376 U. S. 364, distinguished; Harris v. United States, 390 U. S. 234, followed. Pp. 439^48.

2. The seizure of the sock and floor mat from the Dodge was not invalid, since the Dodge, the item “particularly described,” was the subject of a proper search warrant. It is not constitutionally significant that the sock and mat were not listed in the

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warrant’s return, which (contrary to the assumption of the Court of Appeals) was not filed prior to the search, and the warrant was thus validly outstanding at the time the articles were discovered. Pp. 448-450.

471 F. 2d 280, reversed.

Rehnquist, J., wrote the opinion of the Court, in which Burger, C. J., and White, Blackmun, and Powell, JJ., joined. Brennan, J., filed a dissenting opinion, in which Douglas, Stewart, and Marshall, JJ., joined, post, p. 450.

LeRoy L. Dalton, Assistant Attorney General of Wisconsin, argued the cause for petitioner. With him on the briefs was Robert W. Warren, Attorney General.

William J. Mulligan, by appointment of the Court, 410 U. S. 952, argued the cause for respondent. With him on the brief was David E. Leichtfuss*

Opinion of the Court by Mr. Justice Rehnquist, announced by Mr. Justice Blackmun.

Respondent Chester J. Dombrowski, was convicted in a Wisconsin state court of first-degree murder of Herbert McKinney and sentenced to life imprisonment. The conviction was upheld on appeal, State v. Dombrowski, 44 Wis. 2d 486, 171 N. W. 2d 349 (1969), the Wisconsin Supreme Court rejecting respondent’s contention that certain evidence admitted at the trial had been unconstitutionally seized. Respondent then filed a petition for a writ of habeas corpus in federal district court, asserting the same constitutional claim. The District Court denied the petition but the United States Court of Appeals for the Seventh Circuit reversed, holding that one of the searches was unconstitutional under Preston n. United States, 376 U. S. 364 (1964), and the other unconstitu-

^Robert L. Shevin, Attorney General, and A. S. Johnston, Assistant Attorney General, filed a brief for the State of Florida as amicus curiae urging reversal.

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tional for unrelated reasons. 471 F. 2d 280 (1972). We granted certiorari, 409 U. S. 1059 (1972).

On September 9, 1969, respondent was a member of the Chicago, Illinois, police force and either owned or possessed a 1960 Dodge automobile. That day he drove from Chicago to West Bend, Wisconsin, the county seat of Washington County, located some hundred-odd miles northwest of Chicago. He was identified as having been in two taverns in the small town of Kewaskum, Wisconsin, seven miles north of West Bend, during the late evening of September 9 and the early morning of September 10. At some time before noon on the 10th, respondent’s automobile became disabled, and he had it towed to a farm owned by his brother in Fond du Lac County, which adjoins Washington County on the north. He then drove back to Chicago early that afternoon with his brother in the latter’s car.

Just before midnight of the same day, respondent rented a maroon 1967 Ford Thunderbird at O’Hare Field outside of Chicago, and apparently drove back to Wisconsin early the next morning. A tenant on his brother’s farm saw a car answering the description of the rented car pull alongside the disabled 1960 Dodge at approximately 4 a. m. At approximately 9:30 a. m. on September 11, respondent purchased two towels, one light brown and the other blue, from a department store in Kewaskum.

From 7 to 10:15 p. m. of the 11th, respondent was in a steak house or tavern in West Bend. He ate dinner and also drank, apparently quite heavily. He left the tavern and drove the 1967 Thunderbird in a direction away from West Bend toward his brother’s farm. On the way, respondent had an accident, with the Thunderbird breaking through a guard rail and crashing into a

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bridge abutment. A passing motorist drove him into Kewaskum, and, after being let off in Kewaskum, respondent telephoned the police. Two police officers picked him up at a tavern and drove to the scene of the accident. On the way, the officers noticed that respondent appeared to be drunk; he offered three conflicting versions of how the accident occurred.

At the scene, the police observed the 1967 Thunderbird and took various measurements relevant to the accident. Respondent was, in the opinion of the officers, drunk. He had informed them that he was a Chicago police officer. The Wisconsin policemen believed that Chicago police officers were required by regulation to carry their service revolvers at all times. After calling a towtruck to remove the disabled Thunderbird, and not finding the revolver on respondent’s person, one of the officers looked into the front seat and glove compartment of that car for respondent’s service revolver. No revolver was found. The wrecker arrived and the Thunderbird was towed to a privately owned garage in Kewaskum, approximately seven miles from the West Bend police station. It was left outside by the wrecker, and no police guard was posted. At 11:33 p. m. on the 11th respondent was taken directly to the West Bend police station from the accident scene, and, after being interviewed by an assistant district attorney, to whom respondent again stated he was a Chicago policeman, respondent was formally arrested for drunken driving. Respondent was “in a drunken condition” and “incoherent at times.” Because of his injuries sustained in the accident, the same two officers took respondent to a local hospital. He lapsed into an unexplained coma, and a doctor, fearing the possibility of complications, had respondent hospitalized overnight for observation. One of the policemen remained at the hospital as a guard, and the other, Officer Weiss, drove at some time after

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2 a. m. on the 12th to the garage to which the 1967 Thunderbird had been towed after the accident.

The purpose of going to the Thunderbird, as developed on the motion to suppress, was to look for respondent’s service revolver. Weiss testified that respondent did not have a revolver when he was arrested, and that the West Bend authorities were under the impression that Chicago police officers were required to carry their service revolvers at all times. He stated that the effort to find the revolver was “standard procedure in our department.” Weiss opened the door of the Thunderbird and found, on the floor of the car, a book of Chicago police regulations and, between the two front seats, a flashlight which appeared to have “a few spots of blood on it.” He then opened the trunk of the car, which had been locked, and saw various items covered with what was later determined to be type 0 blood. These included a pair of police uniform trousers, a pair of gray trousers, a nightstick with the name “Dombrowski” stamped on it, a raincoat, a portion of a car floor mat, and a towel. The blood on the car mat was moist. The officer removed these items to the police station.

When, later that day, respondent was confronted with the condition of the items discovered in the trunk, he requested the presence of counsel before making &ny statement. After conferring with respondent, a lawyer told the police that respondent “authorized me to state he believed there was a body lying near the family picnic area at the north end of his brother’s farm.” Fond du Lac County police went to the farm and found, in a dump, the body of a male, later identified as the decedent McKinney, clad only in a sportshirt. The deceased’s head was bloody; a white sock was found near the body. In observing the area, one officer looked through the window of the disabled 1960 Dodge, located

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not far from where the body was found, and saw a pillowcase, backseat, and briefcase covered with blood. Police officials obtained, on the evening of the 12th, returnable within 48 hours, warrants to search the 1960 Dodge and the 1967 Thunderbird, as well as orders to impound both automobiles. The 1960 Dodge was examined at the farm on the 12th and then towed to the police garage where it was held as evidence. On the 13th, criminologists came from the Wisconsin Crime Laboratory in Madison and searched the Dodge; they seized the back and front seats, a white sock covered with blood, a part of a bloody rear floor mat, a briefcase, and a front floor mat. A return of the search warrant was filed in the county court on the 14th, but it did not recite that the sock and floor mat had been seized. At a hearing held on the 14th, the sheriff who executed the warrant did not specifically state that these two items had been seized.

At the trial, the State introduced testimony tending to establish that the deceased was first hit over the head and then shot with a .38-caliber gun, dying approximately an hour after the gunshot wound was inflicted; that death occurred at approximately 7 a. m. on the 11th, with a six-hour margin of error either way; that respondent owned two .38-caliber guns; that respondent had type A blood; that the deceased had type 0 blood and that the bloodstains found in the 1960 Dodge and on the items found in the two cars were type 0.

The prosecution introduced the nightstick discovered in the 1967 Thunderbird, and testimony that it had traces of type 0 blood on it; the portion of the floor mat found in the 1967 car, with testimony that it matched the portion of the floor mat found in the 1960 Dodge; the bloody towel found in the 1967 car, with testimony that it was identical to one of the towels purchased by respondent on the 11th; the police uniform trousers; and the sock

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found in the 1960 Dodge, with testimony that it was identical in composition and stitching to that found near the body of the deceased.

The State’s case was based wholly on circumstantial evidence. The Supreme Court of Wisconsin, in reviewing the conviction on direct appeal, stated that “even though the evidence that led to his conviction was circumstantial, we have seldom seen a stronger collection of such evidence assembled and presented by the prosecution.” State v. Dombrowski, 44 Wis. 2d, at 507,171 N. W. 2d, at 360.

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The ultimate standard set forth in the Fourth Amendment is reasonableness. In construing this command, there has been general agreement that “except in certain carefully defined classes of cases, a search of private property without proper consent is ‘unreasonable’ unless it has been authorized by a valid search warrant.” Camara v. Municipal Court, 387 U. S. 523, 528-529 (1967). See Coolidge n. New Hampshire, 403 U. S. 443, 454r-455 (1971). One class of cases which constitutes at least a partial exception to this general rule is automobile searches. Although vehicles are “effects” within the meaning of the Fourth Amendment, “for the purposes of the Fourth Amendment there is a constitutional difference between houses and cars.” Chambers v. Maroney, 399 U. S. 42, 52 (1970). See Carroll v.

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United States, 267 U. S. 132, 153-154 (1925). In Cooper v. California, 386 U. S. 58, 59 (1967), the identical proposition was stated in different language: “We made it clear in Preston [v. United States} that whether a search and seizure is unreasonable within the meaning of the Fourth Amendment depends upon the facts and circumstances of each case and pointed out, in particular, that searches of cars that are constantly movable may make the search of a car without a warrant a reasonable one although the result might be the opposite in a search of a home, a store, or other fixed piece of property. 376 U. 8., at 366-367.” While these general principles are easily stated, the decisions of this Court dealing with the constitutionality of warrantless searches, especially when those searches are of vehicles, suggest that this branch of the law is something less than a seamless web.

Since this Court’s decision in Mapp n. Ohio, 367 U. S. 643 (1961), which overruled Wolf v. Colorado, 338 U. S. 25 (1949), and held that the provisions of the Fourth Amendment were applicable to the States through the Due Process Clause of the Fourteenth Amendment, the application of Fourth Amendment standards, originally intended to restrict only the Federal Government, to the States presents some difficulty when searches of automobiles are involved. The contact with vehicles by federal law enforcement officers usually, if not always, involves the detection or investigation of crimes unrelated to the operation of a vehicle. Cases such as Carroll v. United States, supra, and Brine-gar v. United States, 338 U. S. 160 (1949), illustrate the typical situations in which federal officials come into contact with and search vehicles. In both cases, members of a special federal unit charged with enforcing a particular federal criminal

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statute stopped and searched a vehicle when they had probable cause to believe that the operator was violating that statute.

As a result of our federal system of government, however, state and local police officers, unlike federal officers, have much more contact with vehicles for reasons related to the operation of vehicles themselves. All States require vehicles to be registered and operators to be licensed. States and localities have enacted extensive and detailed codes regulating the condition and manner in which motor vehicles may be operated on public streets and highways.

Because of the extensive regulation of motor vehicles and traffic, and also because of the frequency with which a vehicle can become disabled or involved in an accident on public highways, the extent of police-citizen contact involving automobiles will be substantially greater than police-citizen contact in a home or office. Some such contacts will occur because the officer may believe the operator has violated a criminal statute, but many more will not be of that nature. Local police officers, unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.

Although the original justification advanced for treating automobiles differently from houses, insofar as warrantless searches of automobiles by federal officers was concerned, was the vagrant and mobile nature of the former, Carroll v. United States, supra; Brinegar v. United States, supra; cf. Coolidge n. New Hampshire, supra; Chambers v. Maroney, supra, warrantless searches of vehicles by state officers have been sustained in cases in which the possibilities of the vehicle’s being removed

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or evidence in it destroyed were remote, if not nonexistent. See Harris v. United States, 390 U. S. 234 (1968) (District of Columbia police); Cooper v. California, supra. The constitutional difference between searches of and seizures from houses and similar structures and from vehicles stems both from the ambulatory character of the latter and from the fact that extensive, and often noncriminal contact with automobiles will bring local officials in “plain view” of evidence, fruits, or instrumentalities of a crime, or contraband. Cf. United States n. Biswell, 406 U. S. 311 (1972).

Here we must decide whether a “search”! of the trunk of the 1967 Ford was unreasonable solely because the local officer had not previously obtained a warrant. And, if that be answered in the negative, we must then determine whether the warrantless search was unreasonable within the meaning of the Fourth and Fourteenth Amendments. In answering these questions, two factual considerations deserve emphasis. First, the police had ex-

tPetitioner argued before this Court that unlocking the trunk of the Ford did not constitute a “search” within the meaning of the Fourth Amendment. The thesis is that only an intrusion, into an area in which an individual has a reasonable expectation of privacy, with the specific intent of discovering evidence of a crime constitutes a search. Compare Haerr v. United States, 240 F. 2d 533 (CA5 1957), with District of Columbia v. Little, 85 U. S. App. D. C. 242, 178 F. 2d 13 (1949), aff’d on other grounds, 339 U. S. 1 (1950). But see Camara v. Municipal Court, 387 U. 8. 523 (1967). Arguing that the officer’s conduct constituted an “inspection” rather than a “search,” petitioner relies on our decision in Harris v. United States, 390 U. 8. 234 (1968), to validate the initial intrusion into the trunk, and then the plain-view doctrine to justify the warrantless seizure of the items.

We need not decide this issue. Petitioner conceded in the Court of Appeals that this intrusion was a search. Inasmuch as we believe that Harris and other decisions control this case even if the intrusion is characterized as a search, we need not deal with petitioner’s belated contention.

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ercised a form of custody or control over the 1967 Thunderbird. Respondent’s vehicle was disabled as a result of the accident, and constituted a nuisance along the highway. Respondent, being intoxicated (and later comatose), could not make arrangements to have the vehicle towed and stored. At the direction of the police, and for elemental reasons of safety, the automobile was towed to a private garage. Second, both the state courts and the District Court found as a fact that the search of the trunk to retrieve the revolver was “standard procedure in [that police] department,” to protect the public from the possibility that a revolver would fall into untrained or perhaps malicious hands. Although the trunk was locked, the car was left outside, in a lot seven miles from the police station to which respondent had been taken, and no guard was posted over it. For reasons not apparent from the opinion of the Court of Appeals, that court concluded that as “no further evidence was needed to sustain” the drunk-driving charge, “[t]he search must therefore have been for incriminating evidence of other offenses.” 471 F. 2d, at 283. While that court was obligated to exercise its independent judgment on the underlying constitutional issue presented by the facts of this case, it was not free on this record to disregard these findings of fact. Particularly in nonmetropolitan jurisdictions such as those involved here, enforcement of the traffic laws and supervision of vehicle traffic may be a large part of a police officer’s job. We believe that the Court of Appeals should have accepted, as did the state courts and the District Court, the findings with respect to Officer Weiss’ specific motivation and the fact that the procedure he followed was “standard.” The Court of Appeals relied, and respondent now relies, primarily on Preston n. United States, 376 U. S. 364

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(1964), to conclude that the warrantless search was unconstitutional and the seized items inadmissible. In that case, the police received a telephone call at 3 a. m. from a caller who stated that “three suspicious men acting suspiciously” had been in a car in the business district of Newport, Kentucky, for five hours; four policemen investigated and, after receiving evasive explanations and learning that the suspects were unemployed and apparently indigent, arrested the three for vagrancy. The automobile was cursorily searched, then towed to a police station and ultimately to a garage, where it was searched after the three men had been booked. That search revealed two revolvers in the glove compartment; a subsequent search of the trunk resulted in the seizure of various items later admitted in a prosecution for conspiracy to rob a federally insured bank. In that case the respondent attempted to justify the warrantless search of the trunk and seizure of the items therein “as incidental to a lawful arrest.” Id., at 367. The Court rejected the asserted “search incident” justification for the warrantless search in the following terms: “But these justifications are absent where a search is remote in time or place from the arrest. Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest.” Ibid.

It would be possible to interpret Preston broadly, and to argue that it stands for the proposition that on those facts there could have been no constitutional justification advanced for the search. But we take the opinion as written, and hold that it stands only for the proposition that the search challenged there could not be justified as one incident to an arrest. See Chambers v. Maroney, supra; Cooper v. California, supra. We believe that the instant case is controlled by principles

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that may be extrapolated from Harris v. United States, supra, and Cooper v. California, supra.

In Harris, petitioner was arrested for robbery. As petitioner’s car had been identified leaving the site of the robbery, it was impounded as evidence. A regulation of the District of Columbia Police Department required that an impounded vehicle be searched, that all valuables be removed, and that a tag detailing certain information be placed on the vehicle. In compliance with this regulation, and without a warrant, an officer searched the car and, while opening one of the doors, spotted an automobile registration card, belonging to the victim, lying face up on the metal door stripping. This item was introduced into evidence at petitioner’s trial for robbery. In rejecting the contention that the evidence was inadmissible, the Court stated: “The admissibility of evidence found as a result of a search under the police regulation is not presented by this case. The precise and detailed findings of the District Court, accepted by the Court of Appeals, were to the effect that the discovery of the card was not the result of a search of the car, but of a measure taken to protect the car while it was in police custody. Nothing in the Fourth Amendment requires the police to obtain a warrant in these narrow circumstances.

“Once the door had lawfully been opened, the registration card . . . was plainly visible. It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.” 390 U. S., at 236.

In Cooper, the petitioner was arrested for selling heroin, and his car impounded pending forfeiture proceedings. A week later, a police officer searched the car

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and found, in the glove compartment, incriminating evidence subsequently admitted at petitioner’s trial. This Court upheld the validity of the warrantless search and seizure with the following language: “This case is not Preston, nor is it controlled by it. Here the officers seized petitioner’s car because they were required to do so by state law. They seized it because of the crime for which they arrested petitioner. They seized it to impound it and they had to keep it until forfeiture proceedings were concluded. Their subsequent search of the car—whether the State had ‘legal title’ to it or not—was closely related to the reason petitioner was arrested, the reason his car had been impounded, and the reason it was being retained. The forfeiture of petitioner’s car did not take place until over four months after it was lawfully seized. It would be unreasonable to hold that the police, having to retain the car in their custody for such a length of time, had no right, even for their own protection, to search it.” 386 U. S., at 61-62.

These decisions, while not on all fours with the instant case, lead us to conclude that the intrusion into the trunk of the 1967 Thunderbird at the garage was not unreasonable within the meaning of the Fourth and Fourteenth Amendments solely because a warrant had not been obtained by Officer Weiss after he left the hospital. The police did not have actual, physical custody of the vehicle as in Harris and Cooper, but the vehicle had been towed there at the officers’ directions. These officers in a rural area were simply reacting to the effect of an accident—one of the recurring practical situations that results from the operation of motor vehicles and with which local police officers must deal every day. The Thunderbird was not parked adjacent

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to the dwelling place of the owner as in Coolidge n. New Hampshire, 403 U. S. 443 (1971), nor simply momentarily unoccupied on a street. Rather, like an obviously abandoned vehicle, it represented a nuisance, and there is no suggestion in the record that the officers’ action in exercising control over it by having it towed away was unwarranted either in terms of state law or sound police procedure.

In Harris the justification for the initial intrusion into the vehicle was to safeguard the owner’s property, and in Cooper it was to guarantee the safety of the custodians. Here the justification, while different, was as immediate and constitutionally reasonable as those in Harris and Cooper: concern for the safety of the general public who might be endangered if an intruder removed a revolver from the trunk of 4he vehicle. The record contains uncontradicted testimony to support the findings of the state courts and District Court. Furthermore, although there is no record basis for discrediting such testimony, it was corroborated by the circumstantial fact that at the time the search was conducted Officer Weiss was ignorant of the fact that a murder, or any other crime, had been committed. While perhaps in a metropolitan area the responsibility to the general public might have been discharged by the posting of a police guard during the night, what might be normal police procedure in such an area may be neither normal nor possible in Kewaskum, Wisconsin. The fact that the protection of the public might, in the abstract, have been accomplished by “less intrusive” means does not, by itself, render the search unreasonable. Cf. Chambers v. Maroney, supra.

The Court’s previous recognition of the distinction between motor vehicles and dwelling places leads us to conclude that the type of caretaking “search” conducted here of a vehicle that was neither in the custody nor on

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the premises of its owner, and that had been placed where it was by virtue of lawful police action, was not unreasonable solely because a warrant had not been obtained. The Framers of the Fourth Amendment have given us only the general standard of “unreasonableness” as a guide in determining whether searches and seizures meet the standard of that Amendment in those cases where a warrant is not required. Very little that has been said in our previous decisions, see Cooper v. California, supra, Harris v. United States, supra, Chambers n. Maroney, supra, and very little that we might say here can usefully refine the language of the Amendment itself in order to evolve some detailed formula for judging cases such as this. Where, as here, the trunk of an automobile, which the officer reasonably believed to contain a gun, was vulnerable to intrusion by vandals, we hold that the search was not “unreasonable” within the meaning of the Fourth and Fourteenth Amendments.

Ill The Wisconsin Supreme Court ruled that the sock and the portion of the floor mat were validly seized from the 1960 Dodge. The Fond du Lac county officer who looked through the window of the Dodge after McKinney’s body had been found saw the bloody seat and briefcase, but not the sock or floor mat. Consequently, these two items were not listed in the application for the warrant, but the Dodge was the item “particularly described” to be searched in the warrant. The warrant was validly issued and the police were authorized to search the car. The reasoning of the Wisconsin Supreme Court was that although these items were not listed to be seized in the warrant, the warrant was valid and in executing it the officers discovered the sock and mat in plain view and therefore could constitutionally seize them without a warrant.

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The Court of Appeals held that the seizure of the two items on September 13 could not be justified under the plain-view doctrine. The reasoning of that court hinged on its understanding that the warrant to search the Dodge had been returned and was functus officio by the time Officer Mauer of the Crime Laboratory came upon the sock and the floor mat. The court stated: “There was no continuing authority under the warrant issued the previous night [the 12th]. First, these items were not described in the warrant and presumably were not observed that night [the 12th]. Second, when the warrant was returned—before Mauer came on the scene—it was functus officio. A ‘new ball game,’ so to speak, began when Mauer made his ‘inspection.’ ” 471 F. 2d, at 286.

The record is so indisputably clear that the return of the warrant was filed on the 14th, not sometime prior to Mauer’s search on the 13th, that we are somewhat at a loss to understand how the Court of Appeals arrived at its factual conclusion. The warrant to search the Dodge was issued on the 12th, and, although a return of the warrant was prepared by a Fond du Lac County officer at some time on the 13th (whether before or after Mauer’s search is impossible to determine), it was not filed in the state court until the 14th, at which time a hearing was held, The seizures of the sock and the floor mat occurred while a valid warrant was outstanding, and thus could not be considered unconstitutional under the theory advanced below. As these items were constitutionally seized, we do not deem it constitutionally significant that they were not listed in the return of the warrant. The ramification of that “defect,” if such it was, is purely a question of state law.

We therefore need not reach the question of whether the seizure of the two items from the Dodge would have

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been valid because the entire car had been validly seized as evidence and impounded pursuant to a valid warrant, cf. Harris n. United States, supra; Cooper v. California, supra, or whether a search of the back seat of this car, located as it was in an open field, required a search warrant at all. See Hester v. United States, 265 U. S. 57, 59 (1924).

The judgment of the Court of Appeals is Reversed.

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

In upholding the warrantless search of respondent’s rented Thunderbird, the Court purports merely to rely on our prior decisions dealing with automobile searches. It is clear to me, however, that nothing in our prior decisions supports either the reasoning or the result of the Court’s decision today. I therefore dissent and would hold the search of the Thunderbird unconstitutional under the Fourth and Fourteenth Amendments.

The relevant facts are these. Respondent, an off-duty Chicago policeman, was arrested by police on a charge of drunken driving following a one-car automobile accident in which respondent severely damaged his rented 1967 Thunderbird. The car was towed from the scene of the accident to a private garage and, some two and one-half hours later, one of the arresting officers drove to the garage and, without a search warrant or respondent’s consent, conducted a thorough search of the car for the alleged purpose of finding respondent’s service revolver which was not on respondent’s person and had not been found during an initial search of the car at the scene of the accident. In the trunk of the car, the officer found and seized numerous items that eventually linked respondent to the death of one Herbert McKinney and

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The Court begins its analysis by recognizing, as clearly it must, that the Fourth Amendment’s prohibition against “unreasonable searches and seizures” is shaped by the warrant clause, and thus that a warrantless search of private property is per se “unreasonable” under the Fourth Amendment unless within one of the few specifically established and well-delineated exceptions. Almeida-Sanchez v. United States, ante, p. 266; Katz v. United States, 389 U. S. 347, 357 (1967); Camara v. Municipal Court, 387 U. S. 523, 528-529 (1967). At the same time, the Court also recognizes that one of the established exceptions to the warrant requirement is the search of an automobile on the highway where there is probable cause to support the search and “where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.” Carroll v. United States, 267 U. S. 132, 153 (1925). See also Coolidge n. New Hampshire, 403 U. S. 443 (1971); Chambers v. Maroney, 399 U. S. 42 (1970); Dyke v. Taylor Implement Mfg. Co., 391 U. S. 216 (1968). But the search of the Thunderbird plainly cannot be sustained under the “automobile exception,” for our prior decisions make it clear that where, as in this case, there is no reasonable likelihood that the automobile would or could be moved, the “automobile exception” is simply irrelevant. Coolidge v. New Hampshire, supra, at 461; Carroll v. United States, supra, at 156.

Another established exception to the warrant requirement is a search incident to a valid arrest. Chimel v. California, 395 U. S. 752 (1969). But the search of the Thunderbird cannot be sustained under this exception, because even assuming that such a search would have been within the permissible scope of a search incident to

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an arrest for drunken driving, it is clear that under Preston v. United States, 376 U. S. 364, 368 (1964), “the search was too remote in time or place to have been made as incidental to the arrest.” A third exception to the warrant requirement is the seizure of evidence in “plain view.” Thus, in Harris v. United States, 390 U. S. 234 (1968), we upheld the seizure of an automobile registration card that fell within plain view of a police officer as he opened the door of an impounded automobile to roll up the windows. But, as we cautioned in Coolidge, supra, at 466, “[w]hat the 'plain view’ cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused.” In Harris, the prior justification for the intrusion by the police was to roll up the windows and lock the doors “to protect the car while it was in police custody.” 390 U. S., at 236. “[T]he discovery of the card was not the result of a search,” we said, and “in these narrow circumstances” the “plain view” exception to the warrant requirement was fully applicable. In the present case, however, the sole purpose for the initial intrusion into the vehicle was to search for the gun. Thus, the seizure of the evidence from the trunk of the car can be sustained under the “plain view” doctrine only if the search for the gun was itself constitutional. Reliance on the “plain view” doctrine in this case is therefore misplaced since the antecedent search cannot be sustained.

Another exception to the warrant requirement is that which sustains a search in connection with the seizure of an automobile for purposes of forfeiture proceedings. In Cooper v. California, 386 U. S. 58 (1967), the Court upheld the warrantless search of an automobile after it had been lawfully impounded pursuant to a California statute mandating the seizure and forfeiture of any

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vehicle used to facilitate the possession or transportation of narcotics. There, however, the police were authorized to treat the car in their custody as if it were their own, and the search was sustainable as an integral part of their right of retention. This case, of course, is poles away from Cooper. The Thunderbird was not subject to forfeiture proceedings. On the contrary, ownership of the car remained exclusively in respondent’s lessor and the sole reason that the police took even temporary possession of the car was to remove it from the highway until respondent could claim it.

Clearly, therefore, the Court’s decision today finds no support in any of the established exceptions. The police knew what they were looking for and had ample opportunity to obtain a warrant. Under those circumstances, our prior decisions make it clear that the Fourth Amendment required the police to obtain a warrant prior to the search. Carroll v. United States, supra, at 156. Thus, despite the Court’s asserted adherence to the principles of our prior decisions, in fact the decision rests on a subjective view of what is deemed acceptable in the way of investigative functions performed by rural police officers. But the applicability of the Fourth Amendment cannot turn on fine-line distinctions between criminal and investigative functions. On the contrary, “[i]t is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior,” Camara v. Municipal Court, supra, at 530, for “(t]he basic purpose of [the Fourth] Amendment, as recognized in countless decisions of this Court, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.” Id., at 528. Thus, the fact that the professed purpose of the contested search was to protect the public safety rather than to gain incriminating evi

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dence does not of itself eliminate the necessity for compliance with the warrant requirement. Although a valid public interest may establish probable cause to search, Camara, supra, and See v. City of Seattle, 387 U. S. 541 (1967), make clear that, absent exigent circumstances, the search must be conducted pursuant to a “suitably restricted search warrant.” Camara, supra, at 539. See also Almeida-Sanchez v. United States, supra. And certainly there were no exigent circumstances to justify the warrantless search made of the Thunderbird. For even assuming that the officer had reason to believe that respondent’s service revolver was in the Thunderbird, the police had left the car in the custody of a private garage and did not return to look for the gun until two and one-half hours later. Moreover, although the arresting officers were at all times aware that respondent was an off-duty Chicago policeman, the officers never once inquired of respondent as to whether he was carrying a gun and, if so, where it was located. I can only conclude, therefore, that what the Court does today in the name of an investigative automobile search is in fact a serious departure from established Fourth Amendment principles. And since in my view that departure is totally unjustified, I would affirm the judgment of the Court of Appeals invalidating the search of the Thunderbird and remand the case to the District Court for determination whether the evidence seized during the search of the Dodge and the farm was the fruit of the unlawful search of the Thunderbird. See Aiderman v. United States, 394 U. S. 165 (1969); Wong Sun v. United States, 371 U. S. 471 (1963).

455

Syllabus NORWOOD et al. v. HARRISON et al.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI

No. 72-77. Argued February 20-21, 1973—Decided June 25, 1973

A three-judge District Court sustained the validity of a Mississippi statutory program, begun in 1940, under which textbooks are purchased by the State and lent to students in both public and private schools, without reference to whether any participating private school has racially discriminatory policies. The number of private secular schools in Mississippi, with a virtually all-white student population, has greatly increased in recent years. Held:

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

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

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

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

340 F. Supp. 1003, vacated and remanded.

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

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. Allain, 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.*

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.

* 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.

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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.¹ By September 1970, the number of private nonCatholic schools had increased to 155 with a student population estimated at 42,000, virtually all white. Appellees 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 . ...” ² 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

xApp. 40-41.

² Brief for Appellants 8-9.

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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.³ 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).

³ See Norwood n. Harrison, 340 F. Supp. 1003, 1007 (ND Miss. 1972).

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The books are kept at a central book repository in Jack-son. Id., § 6641 (1)(f). Appellees send to each school district, and, in recent years, to each private school⁴ 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 incep

⁴ 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.”

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tion of public school desegregation.” 340 F. Supp., at 1011.⁵ 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 n. 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

⁵ 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.

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school system under this Court’s holding in Green v. County School Board, 391 U. S. 430, 437 (1968), since “[d]epriving 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.

In Pierce n. 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

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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

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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.⁶ 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

⁶ 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 n. 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. Connally, 330 F. Supp. 1150 (DC), aff’d sub nom. Coit v. Green, 404 U. S. 997 (1971).

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students, are a form of financial assistance inuring to the benefit of the private schools themselves.⁷ 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

⁷ 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 n. 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 n. 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 n. 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.

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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

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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 wellbeing 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. “[D]ecisions 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).⁸ 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

⁸ 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.

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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.⁹ 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.

⁹ In Tunica County, for example, where appellants reside, in response to Green n. 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 14-19.

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That the State’s public schools are now fully unitary, as the District Court found, is irrelevant.

Appellees and the District Court also placed great reliance on our decisions in Everson n. 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 n. 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 n. 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

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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

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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.¹⁰ 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.

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 text

¹⁰ See, e. g., Griffin v. Breckenridge, 403 U. S. 88 (1971); Jones n. 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).

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books 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.

Mr. Justice Douglas and Mr. Justice Brennan con cur in the result.

472

Syllabus 413 U. S.