Helms v. Picard

Revised September 3, 1998

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 97-30231

MARY L. HELMS, individually and as next friend of Amy T. Helms;

AMY T. HELMS, a minor; MARIE L. SCHNEIDER,

Plaintiffs - Appellants - Cross Appellees - Appellees,

VERSUS

CECIL J. PICARD, Louisiana Superintendent of Public Education;

KENNETH DUNCAN, Louisiana State Treasurer; LOUISIANA STATE BOARD OF

ELEMENTARY AND SECONDARY EDUCATION; JEFFERSON PARISH SCHOOL BOARD

SYSTEM; ELTON LAGASSE, Superintendent of the Jefferson Parish

School System; LAURIE E. ROLLING, President and member of the

Jefferson Parish School Board; LIBBY MORAN, Vice President and

member of the Jefferson Parish School Board; ROBERT WOLFE, member

of the Jefferson Parish School Board; BARRY BORDELON, member of the

Jefferson Parish School Board; O.H. GUIDRY, member of the Jefferson

Parish School Board; CEDRIC FLOYD, member of the Jefferson Parish

School Board; POLLY THOMAS, member of the Jefferson Parish School

Board; GENE KATSANIS, member of the Jefferson Parish School Board;

MARTIN MARINO, member of the Jefferson Parish School Board,

Defendants - Appellees - Cross Appellants,

and

RICHARD W. RILEY, Secretary of the United States Department of

Education; UNITED STATES DEPARTMENT OF EDUCATION,

Defendants - Appellees,

and

SPECIAL EDUCATION SERVICES CORPORATION,

Defendant - Appellant,

and

GUY MITCHELL; JAN MITCHELL; EUGENE CERISE; KATHY CERISE,

Intervenor Defendants - Appellees - Cross Appellants.

Appeals from the United States District Court

For the Eastern District of Louisiana

August 17, 1998

Before DUHÉ, BENAVIDES and STEWART, Circuit Judges.

JOHN M. DUHÉ, JR., Circuit Judge:

I.

This case requires us to find our way in the vast, perplexing

desert of Establishment Clause jurisprudence. Plaintiffs, as

taxpayers, sued Defendant Jefferson Parish School Board et al.,

claiming that three state and one federal school aid programs were

unconstitutional as applied in Jefferson Parish, Louisiana.1 The

district court initially granted Plaintiffs’ motion for summary

judgment on some issues. The court then conducted a bench trial on

the remaining issues and rendered judgment. When the case was

reassigned due to the district judge’s retirement, the new judge

reversed some of the court’s earlier rulings. All told, the

parties spent some thirteen years in district court before reaching

this Court. During that time the sand dunes have shifted.

II.

Plaintiffs first challenge Louisiana’s special education

1

The challenged aid programs and the procedural history of the

case are more fully developed infra.

2

program, codified at LA.REV.STAT.ANN. § 17:1941-1956 (West 1982 &

West Supp. 1998), as administered in Jefferson Parish, under the

Establishment Clause. After a bench trial, the district court

ruled that the special education program was unconstitutional as

applied, because it had the impermissible effect of advancing

religion and because the monitoring necessary to prevent such an

effect would result in excessive entanglement between church and

state. See Helms v. Cody, 856 F.Supp. 1102, 1121 (E.D.La.

1994)(“Helms”).

A.

“It is and shall be the duty of state, city and parish public

school systems of the state of Louisiana to provide an appropriate,

free, publicly supported education to every exceptional child who

is a resident therein.” LA.REV.STAT.ANN. § 17:1941 (“special

education statute”).2 Louisiana law defines “special education” as

“any program of instruction within the preschool, elementary, and

2

An “exceptional child” is one who is

mentally disabled, gifted and talented, hard of hearing,

deaf, speech impaired, severe language disordered,

visually impaired, emotionally disturbed, orthopedically

impaired, hospital/homebound, other health impaired,

learning disabled, which includes attention deficit

disordered and dyslexia, traumatic brain injured, or

autistic, and as a result may require special education

or services.

LA.REV.STAT.ANN. § 17:1943(2)(West Supp. 1998). We will note any

provisions of the special education statute that have been amended

since the time of trial and whether those amendments have any

bearing on the questions before us.

3

secondary school structures of the state, specifically designed to

provide for different learning styles of exceptional children.”

LA.REV.STAT.ANN. § 17:1943(4)(West Supp. 1998). Special education

programs are administered by the State Department of Education

(“the Department”) at the state level, and by parish or city school

boards at the parish or city levels; at those lower levels, the

Department provides “only general supervision and monitoring.”

LA.REV.STAT.ANN. § 17:1944(A)(1)(West Supp. 1998).3

The district court found that state funds for special

education programs are allocated to the Jefferson Parish Public

School System (“JPPSS”) “based on the number of exceptional

children served by employees of the local school board, consistent

with state-required pupil/teacher ratios for the provision of

services to students with particular exceptionalities.” Helms, 856

F.Supp. at 1110. The court also found that “[t]he public school

system receives federal monies based on the ‘child count’ of

special education students enrolled at both public and nonpublic

schools.” Id.

The Department or city/parish school boards are authorized to

“enter into a purchase of services agreement with any other public

or nonpublic school, agency or institution to provide free

appropriate education to exceptional children in need of special

3

Additionally, the office of special education services within

the Department provides “general supervision and monitoring of all

education programs for exceptional children conducted within the

state.” LA.REV.STAT.ANN. § 17:1944(A)(2)(West Supp. 1998).

4

education and related services....” LA.REV.STAT.ANN. § 17:1949-50

(West 1982). Pursuant to that authority, the Jefferson Parish

School Board (“JPSB”) contracted with the Special Education

Services Corporation (“SESC”) to provide special education services

by public school teachers at private schools operated under the

authority of the Archdiocese of New Orleans.4 The district court

found that at the time of trial the sole employee of SESC (its

executive director Jan Janz) was also a paid employee of the Office

of Special Education for the Archdiocese of New Orleans;

additionally, the members of the SESC were

[t]he respective Presidents of the

Archdiocesan School Board and Diocesan School

Board of the Roman Catholic Archdiocese of New

Orleans, and the Roman Catholic Diocese of

Lafayette, Baton Rouge, Houma-Thibodeaux, and

Lake Charles, and a representative to be

appointed by the Bishop of the Diocese of

Alexandria-Shreveport, respectively.

Helms, 856 F.Supp. at 1108. The court thus concluded that SESC was

a “religiously-affiliated corporation.” Id.

The availability of special education services on the premises

of nonpublic schools in Jefferson Parish caused a “dramatic

escalation of requests for special-education teachers and aides by

4

SESC was established as a Louisiana nonprofit corporation in

1981. It was organized for the purpose of “assist[ing] students

who are having academic and behavior problems to cope in the

school environment.” Although SESC was originally funded with

$1.65 million by the 1982 Legislature, the district court found

that since at least 1987, SESC has not received any funds from the

State of Louisiana or any other governmental body. See Helms, 856

F.Supp. at 1108.

5

the approved nonpublic schools....” Helms, 856 F.Supp. at 1108.

Wary that such a trend might funnel off too many students and

teachers to private schools, in 1982 the JPSB formed a committee

comprised of its staff and staff from the Archdiocese of New

Orleans to study the problem. The committee issued a report

recommending, inter alia, (1) that state funding for teachers and

aides working in nonpublic schools be capped at its 1982-83 levels

(excluding teachers covered under the contractual agreement for

1982-83 with SESC); (2) that, beginning with the 1983-84 academic

year, “the total local costs for any new positions or vacancies for

teachers or teacher aides will be borne by the Catholic schools to

which these persons are assigned”; and (3) that the Archdiocese

would be able to establish new special education classes at its

schools, but that “the total local costs ... [would] be the

responsibility of the individual schools.” Id. at 1109. The JPSB

approved the report.

The JPSB/SESC contract for the 1989-90 school year provided

that the JPSB would hire up to 14 special education teachers and up

to 5 teacher assistants. These teachers and assistants were

assigned to Chinchuba Institute for the Deaf and eight parochial

schools.5 Under the contract, the classrooms were to be provided

5

The eight parochial schools were Immaculate Conception High

School, Archbishop Rummel High School, St. Agnes Elementary School,

St. Angela Elementary School, St. Benilde Elementary School, St.

Christopher Elementary School, St. Francis Xavier Elementary

School, and St. Mary Magdalen Elementary School.

6

by SESC at no cost to the JPSB. The special education programs

conducted in those classrooms would be supervised by both the JPSB

and the administrator of SESC.

Pursuant to the contract, SESC billed the JPSB for the cost of

the special education teachers and teacher assistants provided to

the nine nonpublic schools. For the fiscal year 1989-90, that cost

was estimated to be approximately $149,583.00. The salary of a

special education teacher, one facet of those costs, consists of

(1) money from the “minimum foundation” program (i.e., money that

comes to Jefferson Parish from the State); and (2) the local salary

supplement. In the public schools, the JPSB pays the local salary

supplement. By contrast, in the nonpublic schools the SESC agreed

to pay the supplement. Since 1987, SESC has been funded by

contributions from the participating nonpublic schools. The

parents of special education students attending these nonpublic

schools pay a supplemental fee to SESC, in addition to tuition they

would normally pay. See Helms, 856 F.Supp. at 1117.

Jefferson Parish special education teachers in both public and

nonpublic schools are subject to the same Collective Bargaining

Agreement. A clause in the 1989-90 agreement states that

“[p]ositions in special education classes which are provided in

nonpublic schools and are a duplication of services provided by the

Jefferson Parish Public School System shall be filled only after

all special education positions in the Jefferson Parish Public

7

School System have been filled by certified special education

teachers.” See Helms, 856 F.Supp. at 1110 (emphasis added).

Notably, however, an exception to that clause states that “[t]he

Board shall not involuntarily transfer special education teachers

assigned to nonpublic schools prior to the 1983-84 school session

unless pupil-teacher ratio changes reduce teacher needs.” Id. at

1110-11. The district court found that this exception functions as

a “compromise agreement involving public school teachers providing

special education services at nonpublic schools.” Id. at 1111

(internal quotes omitted). Twelve of the fourteen special

education teachers currently employed by the Jefferson Parish

Public School System and providing services at nonpublic schools

are there by reason of the exception in the Collective Bargaining

Agreement (“the grandfather provision”). Id.

Pursuant to State regulations, the JPSB and SESC entered into

an “interagency agreement,” to be effective for one year from July

1, 1989, the stated purpose of which was to “formalize the

cooperation and to identify the responsibilities” of the two

entities regarding the special education program. See Helms, 856

F.Supp. at 1113. The interagency agreement does not specifically

provide for monitoring to determine whether the special education

teacher engages in either religious discussion or conduct. The

contract only provides that the principal of the nonpublic school

“will ensure that the policies and procedures of the [JPSB] will be

8

followed in all areas of cooperative effort.” Id.6 The State,

however, conducts inspections of randomly selected special

education programs once every three years; these inspections

include a thorough review of students’ school records and

interviews with teachers and principals. Id. at 1114.

The teaching responsibilities of each JPPSS special education

teacher are described in the Individualized Education Program

(“IEP”) of each of the teacher’s students. An IEP describes each

child’s entire special education curriculum. State regulations

mandate that “[t]he responsibility for the development of each

initial IEP rests with the [public] school system’s special

education supervisor.” Helms, 856 F.Supp. at 1114. Religious

instruction is not described in the IEP, nor do church or religious

officials have any authority whatsoever over the content of the

IEP. Id. Moreover, special education teachers must and do teach

only what is outlined in the IEP. Id.

The district court specifically found that: “[t]he JPPSS

special education teachers at nonpublic schools do not teach

religion” Id.; “[t]he special education classrooms are used only

for special education instruction” Id.; and that “JPPSS special

education teachers at the eight Catholic schools are not required

6

Nonpublic school principals are also contractually bound to

“enforce, apply, and follow all [JPSB] personnel policies and

procedures, including but not limited to the Collective Bargaining

Agreement, the Teacher Evaluation Program, and the Teacher

Assistant Evaluation Program, in the ‘management and supervision of

the teachers’ employed by the JPPSS.” Helms, 956 F.Supp. at 1114.

9

to attend any religious services.” Id.

Special education teachers teach in self-contained or resource

classrooms within each Catholic school’s facility. JPPSS requires

all special education classrooms to be “located in the center of

the school” to make it easier for students to get to their

classroom. To that end, most classrooms are located in the main

school building or on the main school campus.7 No sign or other

special designation indicates that the special education classroom

or area used is a public school classroom or area. See Helms, 856

F.Supp. at 1115.

Nonpublic school principals may assign JPPSS special education

teachers non-teaching custodial duties involving oversight of

student safety and behavior -- such as lunch duty or bus duty --

only in a manner consistent with the Collective Bargaining

Agreement. Pursuant to that agreement, the special education

teachers may also be required to attend faculty meetings no more

frequently than once per month, for one hour. See id. at 1114.

The JPSB/SESC contract states that “[t]eacher evaluation in

the nonpublic schools falls under the auspices of the [JPPSS];

therefore, the nonpublic schools must follow all policies and

procedures of the [JPPSS] governing teacher evaluation.” The

contract also stipulates that in the nonpublic schools, principals

7

The one noted exception is at St. Christopher’s Elementary

School, where the special education classroom is located in a

portable unit.

10

and special education teachers shall participate in evaluation and

special education policies and procedures. See id. at 1115. The

principal of the nonpublic school is the “supervisor and ‘formal

evaluator’ of the special education teachers in that school.” See

id. at 1117. The record indicates that the principal, through

actual classroom observation of the special education teachers and

through interviews, performs limited evaluations of the teachers’

“teaching abilities” and “classroom management skills.” The record

also indicates the principal’s supervisory role is strictly

circumscribed by JPPSS. There is no evidence demonstrating that

the principals have supervisory authority over the content of the

special education program.

The district court made the following findings regarding Mary

L. Cerise, a JPPSS special education teacher at St. Angela Merici.

Prior to her employment as a special education teacher by JPPSS,

Cerise was employed by St. Angela Merici for approximately ten

years as an elementary education teacher. Now, however, she

informs her students that she is a JPPSS employee; parents become

aware of her employment when they sign the child’s IEP. In

testifying about her contacts with the principal at St. Angela

Merici, Cerise indicated that “during the day he often walks in and

out of the classrooms.” Cerise also testified that the principal

was her immediate supervisor in that “[h]is position is to see that

[she] implement[s] the program as outlined on the [IEP] and that

11

[she is] carrying out the instructional objectives and trying to

meet the needs of each child that is in [her] care.” See Helms,

856 F.Supp. at 1116.

Prior to Cerise’s tenure, an employee of JPPSS would regularly

monitor Cerise’s files and classroom activities at the school.

Since her tenure, however, no state employee has monitored her

classroom; instead, she writes down everything she does in the

IEP, which is sent to an “IEP specialist” and then returned to her

with accompanying commentary. The IEP specialist, Barbara

Cavallino, a JPPSS employee, did not visit St. Angela Merici during

the 1989-90 school year, but did visit once during the previous

year. Cerise’s contact with the IEP specialist is normally by

telephone and occurs whenever she has an “academically or IEP-

related” question that she wants clarified. See id.

In addition to the student report cards issued by the

parochial school, Cerise must complete a progress report which is

required by the JPPSS for every special education student. Cerise

attends faculty meetings at St. Angela Merici on a monthly basis.

She attended one general workshop for all special education

teachers sponsored by the JPPSS at the beginning of the 1989-90

school year. See id.

Jan Janz, the sole employee and executive director of SESC,

has “general supervision” of the special education program provided

on nonpublic school premises by the JPSB/SESC contract. She visits

the special education classrooms and monitors the evaluations and

12

the IEPs of the special education students that are on file. Janz

testified that she did not specifically monitor for religious

symbols in the special education classrooms, but that if she

observed a religious symbol in the classrooms, she “would ask that

they remove it.” Barbara Turner Windhorst, the director of special

education from June of 1982 to January of 1987, was not aware of

any JPPSS policy which required the director of special education

to observe whether religious symbols were present in the special

education classrooms. She did not investigate for the presence of

religious symbols, nor did she recall whether any religious symbols

were present in the special education classrooms. The State of

Louisiana has no policy that requires its employees to inspect the

special education classrooms for such symbols. See id. at 1117.

JacLynn Welsch, a volunteer teacher’s assistant to Jean

Douglass (a JPPSS special education teacher also at St. Angela

Merici), testified that Douglass taught special education classes

to upper grades in a partially partitioned classroom. The

classroom also serves as the special education room for another

teacher. Welsch testified that there is a crucifix in the room.

See id. at 1116.

The district court ended its fact-findings with the following

conclusions:

(1) “[S]pecial education teachers employed by the [JPSB]

provide special education services on the premises of

parochial schools”;

(2) “[T]here was no financial incentive for the parents of

13

special education students to choose a nonpublic school.

In fact it is undisputed that the students would have

received special education at no cost in the public

schools. Instead, the parents of special education

students elected to pay an extra charge, in addition to

the regular tuition, in order for their children to

attend a parochial school”;

(3) “The State of Louisiana is presently disbursing funds to

Jefferson Parish to provide special education services to

all qualified children in Jefferson Parish, whether they

attend public or nonpublic schools”;

(4) “[N]o state, federal, or Jefferson Parish funds are paid

directly to SESC or to the parochial schools. Rather,

SESC contributes monies to the [JPSB] to help pay for the

salaries of the JPPSS special education teachers located

at the parochial schools. SESC receives its monies from

the individual schools providing the special education

services”;

(5) “[T]he parochial schools have received a direct economic

benefit by furnishing special education services on their

premises. The parochial schools receive tuition and a

special education surcharge from the special education

students, yet they are not responsible for the full

salaries of the JPPSS special education teachers. The

JPPSS special education teachers are paid by the [JPSB]

with funds primarily obtained from the State of Louisiana

and supplemented by the parochial schools through SESC”;

(6) “[I]f the special education services were not provided at

the nonpublic schools, those special education students

would be compelled to attend public schools which provide

the necessary services at no charge to the parents.

Thus, the nonpublic schools would be deprived of an

economic benefit, that is, the tuition and the special

education surcharge received from the special education

students.”

Helms, 856 F.Supp. at 1117-18.

B.

The district court began its conclusions of law by holding

that the eight Catholic schools at issue here are “pervasively

sectarian.” Helms, 956 F.Supp. at 1118, quoting Bowen v. Kendrick,

14

487 U.S. 589, 610 (1988). Regarding the familiar three-part test

of Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971), the court

observed that “even though Lemon has not been overruled, its

continuing vitality appears to be in question.” Helms, 856 F.Supp.

at 1118, citing Lamb’s Chapel v. Center Moriches Union Free School

Dist., 113 S.Ct. 2141, 2148 n.7 (1993).

Thus, the court relied primarily on the analysis used in the

Supreme Court’s (then) most-recent Establishment Clause case,

Zobrest v. Catalina Foothills School Dist., 509 U.S. 1 (1993).

Zobrest held that the Establishment Clause does not bar a school

district from furnishing an exceptional child with a sign-language

interpreter at a parochial school “in order to facilitate his

education.” Zobrest, 509 U.S. at 14. The district court followed

the Zobrest analysis and asked whether the Louisiana special

education program, as applied in Jefferson Parish, more closely

resembled the school aid programs found constitutional in Mueller

v. Allen, 463 U.S. 388 (1983), and Witters v. Washington Dep’t of

Services for the Blind, 474 U.S. 481 (1986), or instead more

closely resembled the school aid programs struck down in Meek v.

Pittenger, 421 U.S. 349 (1975), and School Dist. of Grand Rapids v.

Ball, 473 U.S. 373 (1985). See Helms, 856 F.Supp. at 1118-19,

citing Zobrest, 509 U.S. at 7-14.

Ultimately, the court found that “the situation in the instant

case more closely resembles Meek and Ball, rather than Mueller and

15

Witters.” Helms, 856 F.Supp. at 1120-21. In the court’s view, the

provision of special education services on parochial school

premises, where the teachers are paid by a combination of State and

SESC funds, amounted to “assistance ... given directly to the

schools themselves, and not indirectly through the parents or

students.” Id. Quoting from Meek, the court thus concluded that

the JPPSS special education teachers were “performing educational

services in schools in which education is an integral part of the

dominant sectarian mission and in which an atmosphere dedicated to

the advancement of religious belief is constantly maintained.” Id.

at 1121, quoting Meek, 421 U.S. at 371. Further, the court found

that the continuing surveillance necessary to insure that teachers

would not inculcate religion “could result in administrative

entanglement between the parochial schools and the State and

Jefferson Parish.” Helms, 856 F.Supp. at 1121, citing Meek, 421

U.S. at 372. Consequently, the court felt itself “compelled to

find that the special education statute, LA.REV.STAT.ANN. §§

17:1941-1956, which allows state-paid teachers to teach on the

premises of pervasively sectarian institutions, violates the

Establishment Clause as applied.” Helms, 856 F.Supp. at 1121.

C.

1.

When we view the deceptively simple words of the Establishment

16

Clause8 through the prism of the Supreme Court cases interpreting

them, the view is not crystal clear. Indeed, when the Supreme

Court itself admits that it “can only dimly perceive the lines of

demarcation in this extraordinarily sensitive area of

constitutional law,” as a Circuit Court bound by the High Court’s

commandments we must proceed in fear and trembling. See Lemon, 403

U.S. at 612, quoted with approval in Mueller, 463 U.S. at 393, and

Committee for Public Education v. Nyquist, 413 U.S. 756, 761

(1973).

That said, we begin by observing that the Supreme Court’s most

recent sermon in this area, Agostini v. Felton, 117 S.Ct. 1997

(1997), which was not available to the district court, must control

the outcome here, as it presents a factual situation closely

analogous to our own. See discussion infra. Agostini overruled a

portion of Ball, supra, a case on which the district court relied.

See Agostini, 117 S.Ct. at 2016, overruling Aguilar v. Felton, 473

U.S. 402 (1985), and overruling in part Ball, 473 U.S. 373 (1985).

The crucial question before us is whether Agostini mandates a

different result than that reached by the district court. We hold

that it does.

Agostini considered the constitutionality of Title I of the

Elementary and Secondary Education Act of 1965, 79 Stat. 27, as

modified, 20 U.S.C. § 6301 et seq. (“Title I”). Title I channels

8

“Congress shall make no law respecting an establishment of

religion....” U.S. CONST. amend. I.

17

federal funds, through the States, to “Local Educational Agencies”

(“LEAs”), which in turn spend the funds to provide remedial

education, guidance and job counseling to eligible students. See

Agostini, 117 S.Ct at 2003. An eligible student is one who resides

within the attendance boundaries of a school located in a low-

income area and who is failing, or is at risk of failing, the

State’s student performance standards. Id. at 2003-04. Title I

requires that funds be made available equitably to all eligible

children, whether they attend public or private schools. Id. at

2004.

When an LEA provides Title I services to children attending

private schools, those services are subject to heightened

constraints. For example, Title I services may be provided only to

eligible private school students and, unlike at public schools,

those services therefore cannot be provided on a “school-wide”

basis. See id. Additionally, the LEA must retain complete control

over Title I funds and must retain title to all materials used in

conjunction with Title I services. Id. The LEA also must provide

those services through public employees or other persons

independent of the private school and any religious institution.

Id. Importantly, the Title I services themselves must be “secular,

neutral, and nonideological,” and must “supplement, and in no case

supplant, the level of services” already provided by the private

school. Id.

18

The LEA in Agostini, the Board of Education of the City of New

York, struggled for over a decade attempting to provide Title I

services to private school students within its jurisdiction. See

Agostini, 117 S.Ct. at 2004. After unsuccessful experiments

involving the off-campus provision of services, the Board of

Education implemented the plan that invoked the wrath of the

Agostini plaintiffs:

That plan called for the provision of Title I

services on private school premises during

school hours. Under the plan, only public

employees could serve as Title I instructors

and counselors. Assignments to private

schools were made on a voluntary basis and

without regard to the religious affiliation of

the employee or the wishes of the private

school. [A] large majority of Title I

teachers worked in nonpublic schools with

religious affiliations different from their

own. The vast majority of Title I teachers

also moved among the private schools, spending

fewer than five days a week at the same

school.

Agostini, 117 S.Ct. at 2004 (citations omitted). As an additional

safeguard, public employees providing Title I services on private

school premises “would be given a detailed set of written and oral

instructions emphasizing the secular purpose of Title I and setting

out the rules to be followed to ensure that this purpose was not

compromised.” Id. Consultations with a student’s regular

classroom teacher were limited to “mutual professional concerns

regarding the student’s education.” Id. at 2005. Finally, “a

publicly employed field supervisor was to attempt to make at least

one unannounced visit to each teacher’s classroom every month.”

19

Id.

In 1987 six federal taxpayers sued claiming that the Board’s

Title I program violated the Establishment Clause. At the

conclusion of the dispute’s first lap through the Federal court

system, the Supreme Court affirmed the decision of the Second

Circuit, holding that the program was unconstitutional because it

“necessitated an ‘excessive entanglement of church and state in the

administration of [Title I] benefits.’” Agostini, 117 S.Ct. at

2005, quoting Aguilar, 473 U.S. at 414. Consequently, on remand

the district court permanently enjoined the Board of Education from

allowing State-funded “public school teachers and guidance

counselors to provide teaching services on the premises of

sectarian schools within New York City.” Agostini, 117 S.Ct. at

2005.

In 1995, the Board, together with a group of parents of

parochial school children entitled to Title I services, moved the

district court under Federal Rule of Civil Procedure 60(b), seeking

relief from the permanent injunction on the grounds that the

“decisional law [had] changed to make legal what the [injunction]

was designed to prevent.” Id. at 2006, quoting Rufo v. Inmates of

Suffolk County Jail, 502 U.S. 367, 388 (1992). Both the district

court and the Second Circuit denied relief, but the Supreme Court

reversed and vacated the injunction. Agostini, 117 S.Ct. at 2019.

The central question before the Court in Agostini was “whether

Aguilar [had] been eroded by [the Court’s] subsequent Establishment

20

Clause cases.” Id. at 2008. To answer it, the Court first had to

discuss the underpinnings of Aguilar and its companion case, Ball:

Distilled to essentials, the Court’s

conclusion that the Shared Time program in

Ball had the impermissible effect of advancing

religion rested on three assumptions: (i) any

public employee who works on the premises of a

religious school is presumed to inculcate

religion in her work; (ii) the presence of

public employees on private school premises

creates a symbolic union between church and

state; and, (iii) any and all public aid that

directly aids the educational function of

religious schools impermissibly finances

religious indoctrination, even if the aid

reaches such schools as a consequence of

private decisionmaking. Additionally, in

Aguilar there was a fourth assumption: that

New York City’s Title I program necessitated

an excessive entanglement with religion

because public employees who teach on the

premises of religious schools must be closely

monitored to ensure that they do not inculcate

religion.

Agostini, 117 S.Ct. at 2010. The Court then proceeded to

demonstrate how its intervening decisions had “undermined the

assumptions upon which Ball and Aguilar relied.” Id.

While the Court reaffirmed the bedrock principle that

“government inculcation of religious beliefs has the impermissible

effect of advancing religion,” the Court found that cases

subsequent to Aguilar had “modified in two significant respects the

approach [it] use[s] to assess indoctrination.” Agostini, 117

S.Ct. at 2010. The first sea-change the Court noted in its

indoctrination analysis was that it had:

abandoned the presumption erected in Meek and

Ball that the placement of public school

21

employees on parochial school grounds

inevitably results in the impermissible effect

of state-sponsored indoctrination or

constitutes a symbolic union between

government and religion.

Id., citing Zobrest, 509 U.S. at 13. No longer, then, would a

public employee on sectarian school property “be presumed to

inculcate religion in the students,” without evidence to the

contrary. Agostini, 117 S.Ct. at 2011; see also id. at 2012

(“Certainly, no evidence has ever shown that any New York City

Title I instructor teaching on parochial school premises attempted

to inculcate religion in students.”). Nor would the mere presence

of a public employee on the premises of a religious school

“create[] an impermissible ‘symbolic link’ between government and

religion.” Id. at 2011. The Court thus demolished with one swift

stroke the first two assumptions upon which Ball had stood. See

id. at 2010.

The second “significant” alteration the Court noted was that

it had “departed from the rule relied on in Ball that all

government aid that directly aids the educational function of

religious schools is invalid.” Id. at 2011 (emphasis added). The

Court, however, was somewhat cryptic about how one might

distinguish between valid and invalid government aid that “directly

aids the religious function of religious schools.” From the

Court’s reliance on Zobrest, supra, and also on Witters v.

Washington Dept. of Services for the Blind, 474 U.S. 481 (1986),

22

however, we can glean the kinds of requirements the Court might

demand of such aid. First, it was crucial in the Court’s view that

any aid be neutral -- that is, that any aid be “made available

generally without regard to the sectarian-nonsectarian, public-

nonpublic nature of the institution benefited.” Agostini, 117

S.Ct. at 2011, quoting Witters, 474 U.S. at 487. Second, the Court

required that “any money that ultimately went to religious

institutions did so ‘only as a result of the genuinely independent

and private choices of’ individuals.” Agostini, 117 S.Ct. at 2011-

12, quoting Witters, 474 U.S. at 487. Relative to the second

requirement, the Court noted that an aid program’s eligibility

criteria may ensure that the aid flows to sectarian institutions

only as a “result of the private decision of individual parents”

(i.e., if the aid is given based on factors unrelated to religion,

the fact that some aid is channeled to religious schools is a

function of the parents’ decision to send their children to such

schools and therefore “[can] not be attributed to state

decisionmaking.”). Agostini, 117 S.Ct. at 2012, citing Zobrest,

509 U.S. at 10. Finally, the aid cannot “indirectly finance

religious education by ‘reliev[ing] the sectarian schoo[l] of costs

[it] otherwise would have borne in educating [its] students.”

Agostini, 117 S.Ct. at 2012, citing Zobrest, 509 U.S. at 12.9

9

The Court also observed that whether the aid is provided to one

student, as it was in Zobrest, or to several students at once, as

it was in Agostini, “is not constitutionally significant.”

Agostini, 117 S.Ct. at 2013.

23

The criteria by which an aid program identifies its

beneficiaries may, in the Court’s view, advance religion in another

way: “the criteria might themselves have the effect of advancing

religion by creating a financial incentive to undertake religious

indoctrination.” Agostini, 117 S.Ct. at 2014, citing Witters, 474

U.S. at 488, and Zobrest, 509 U.S. at 10. The Court provided a

test for determining whether aid criteria create such an incentive:

This incentive is not present, however, when

the aid is allocated on the basis of neutral,

secular criteria that neither favor nor

disfavor religion, and is made available to

both religious and secular beneficiaries on a

nondiscriminatory basis. Under such

circumstances, the aid is less likely to have

the effect of advancing religion.

Agostini, 117 S.Ct. at 2014, citing Widmar v. Vincent, 454 U.S. 263

(1981). When assessing whether an aid program has the

impermissible effect of advancing religion, then, the criteria by

which that aid is allocated are relevant in two distinct ways:

whether any use of the aid to indoctrinate religion can be

attributed to the state, and, whether the criteria themselves

create a financial incentive to undertake religious indoctrination.

See Agostini, 117 S.Ct. at 2014.

The Court in Agostini expressly treated the “entanglement”

prong (often regarded as the third prong -- see, e.g., Mueller, 463

U.S. at 394) of the Lemon test as “an aspect of the inquiry into a

statute’s effect.” Agostini, 117 S.Ct. at 2015, citing Walz v. Tax

Comm’n of the City of New York, 397 U.S. 664, 674 (1970). The

24

Court did so observing that, regardless how it had characterized

the “entanglement” inquiry in prior cases, “the factors we use to

assess whether an entanglement is ‘excessive’ are similar to the

factors we use to examine ‘effect.’” Agostini, 117 S.Ct. at 2015.

Those factors include (1) “the character and purposes of the

institutions benefited,” (2) “the nature of the aid that the State

provides,” and, (3) “the resulting relationship between the

government and religious authority.” Id.

The Court emphasized that not every entanglement between

government and religion offends the Constitution:

Not all entanglements, of course, have the

effect of advancing or inhibiting religion.

Interaction between church and state is

inevitable, and we have always tolerated some

level of involvement between the two.

Entanglement must be “excessive” before it

runs afoul of the Establishment Clause.

Agostini, 117 S.Ct. at 2015 (citations omitted). The Aguilar Court

found that the Board’s Title I program fostered excessive

entanglement for three reasons: (1) “the program would require

pervasive monitoring by public employees to ensure that Title I

employees did not inculcate religion”; (2) “the program required

administrative cooperation between the Board and parochial

schools”; and, (3) “the program might increase the dangers of

political divisiveness.” Id., citing Aguilar, 473 U.S. at 413-14

(internal quotes omitted). The Agostini Court began, however, by

observing that the last two grounds cannot, in and of themselves,

create an excessive entanglement, since “[t]hey are present no

25

matter where Title I services are offered, and no court has held

that Title I services cannot be offered off-campus.” Agostini, 117

S.Ct. at 2015.

More importantly, the Court remarked that, since it had

abandoned the assumption that public employees on sectarian school

premises will inevitably inculcate religion,

we must also discard the assumption that

pervasive monitoring of Title I teachers is

required. There is no suggestion in the

record before us that unannounced monthly

visits of public supervisors are insufficient

to prevent or to detect inculcation of

religion by public employees. Moreover, we

have not found excessive entanglement in cases

in which States imposed far more onerous

burdens on religious institutions than the

monitoring system at issue here.

Agostini, 117 S.Ct. at 2016, referring to Bowen, 487 U.S. at 615-17

(emphasis added). Thus, the Court will now require evidence

demonstrating the insufficiency of a particular monitoring system

before it will conclude that public teachers on parochial school

grounds are impermissibly inculcating religion.

The Court concluded with the following language:

To summarize, New York City’s Title I program

does not run afoul of any of the three

criteria we currently use to evaluate whether

government aid has the effect of advancing

religion: it does not result in governmental

indoctrination; define its recipients by

reference to religion; or create an excessive

entanglement.

Agostini, 117 S.Ct. at 2016. The Court then stated its holding:

We therefore hold that a federally funded

26

program providing supplemental, remedial

instruction to disadvantaged children on a

neutral basis is not invalid under the

Establishment Clause when such instruction is

given on the premises of sectarian schools by

government employees pursuant to a program

containing safeguards such as those present

here. The same considerations that justify

this holding require us to conclude that this

carefully constrained program also cannot

reasonably be viewed as an endorsement of

religion. Accordingly, we must acknowledge

that Aguilar, as well as the portion of Ball

addressing Grand Rapids’ Shared Time program,

are no longer good law.

Id (emphasis added).

2.

For our purposes, Agostini is as important for what it did not

hold as for what it did. As the emphasized language at the end of

the last section shows, Agostini only overruled that part of Ball

dealing with the Shared Time program. See also Agostini, 117 S.Ct.

at 2016 (“...overruling Aguilar and those portions of Ball

inconsistent with our more recent decisions.”). Agostini

explicitly left intact that part of Ball which struck down the

Community Education program. See id.; see also Agostini, 117 S.Ct.

at 2019 n.1 (Souter, J., dissenting). We believe that contrasting

the two programs in Ball will further illuminate the meaning of

Agostini, for while the Shared Time program is constitutional under

Agostini, presumably the Community Education program is not.

The Shared Time program offered classes during the regular

schooldays that were “supplementary” to State-required core

27

curriculum courses.10 See Ball, 473 U.S. at 375. By contrast, the

Community Education program offered courses to children and adults

that commenced after the regular schooldays. Id. at 376.11 Courses

offered included Arts and Crafts, Home Economics, Spanish,

Gymnastics, Yearbook Production, Christmas Arts and Crafts, Drama,

Newspaper, Humanities, Chess, Model Building, and Nature

Appreciation. Id. at 376-77. The Court did not indicate that the

Community Education courses were intended to be “supplementary” to

core curriculum subjects. There was evidence that both Shared

Time and Community Education courses taught at nonpublic schools

were also available, perhaps in a different format, in public

schools. Id.

The Ball Court noted that “[b]oth programs [were] administered

similarly.” Id. at 377. For example, nonpublic school

administrators decided which courses to offer, based on a list of

courses provided by the Director of the program, a public school

employee. Id. Nonpublic administrators also decided which

classrooms would be used for the programs, subject to inspection of

the facilities by the same Director. Id. The public school system

“leased” the classrooms from the nonpublic schools for a nominal

10

For example, the Shared Time program offers courses such as

“remedial” and “enrichment” mathematics, reading, art, music, and

physical education. Id.

11

The appeal in Ball “involved only Shared Time classes at the

elementary level, Community Education classes at the elementary

level, and the remedial mathematics Shared Time Program at the

secondary level.” Id. at 376 n.1.

28

weekly charge. Id. The leased classrooms had to be free of any

religious symbols, although religious symbols “[could] be present

in the adjoining hallways, corridors, and other facilities used in

connection with the program.” Id. at 378. The program teacher was

required to post a sign outside the classroom stating that it was

a “public school classroom.” Id.

The most important difference between the two programs was the

status of their teachers. See id. at 387. The Shared Time

teachers were “full-time employees of the public schools.” Id. at

376. In stark contrast,

Community Education teachers are part-time

public school employees. (...) Because a well-

known teacher is necessary to attract the

requisite number of students, the School

District accords a preference in hiring to

instructors already teaching within the

school. Thus, virtually every Community

education course conducted on facilities

leased from nonpublic schools has an

instructor otherwise employed full time by the

same nonpublic school.

Ball, 473 U.S. at 377 (emphasis added). While it is true that

approximately 10% of the Shared Time teachers “previously taught in

nonpublic schools, and many of those had been assigned to the same

nonpublic school where they were previously employed,” no Shared

Time teachers were concurrent employees of both the nonpublic

schools and the public school system. See id. at 376.

Although the Ball majority invalidated both programs, its

discussion of the Community Education program focused on the dual

29

roles of that program’s teachers:

These [Community Education] instructors, many

of whom no doubt teach in the religious school

precisely because they are adherents of the

controlling denomination and want to serve

their religious community zealously, are

expected during the regular schooldays to

inculcate their students with the tenets and

beliefs of their particular religious faiths.

Yet the premise of the [Community Education]

program is that those instructors can put

aside their religious convictions and engage

in entirely secular Community Education

instruction as soon as the schooldays is over.

Moreover, they are expected to do so before

the same religious school students and in the

same religious school classrooms that they

employed to advance religious purposes during

the “official” schooldays. Nonetheless, as

petitioners themselves asserted, Community

Education classes are not specifically

monitored for religious content.

Ball, 473 U.S. at 386-87. Given the “conflict of functions

inhere[nt] in the situation,” the Court found “a substantial risk

that, overtly or subtly, the religious message [the teachers] are

expected to convey during the regular schooldays will infuse the

supposedly secular classes they teach after school.” Id. at 387,

in part quoting Lemon, 403 U.S. at 618-19. The Court was careful

not to impugn the integrity of the Community Education teachers,

but it nonetheless found a substantial risk of inculcation “because

the pressures of the environment might alter [their] behavior from

its normal course.” Ball, 473 U.S. at 387, citing Wolman v.

Walter, 433 U.S. 229, 247 (1977).

The Ball Court also found a “substantial risk of state-

sponsored indoctrination” in the Shared Time program. Ball, 473

30

U.S. at 387. Notably, however, the Court did so by indulging in an

assumption that the Agostini Court has now expressly disavowed --

i.e., the assumption that public employees teaching on the premises

of sectarian schools “may well subtly (or overtly) conform their

instruction to the environment in which they teach....” Id. at

388. The quoted language encapsulates what the Agostini court

identified as the first of three now-abandoned assumptions on which

Ball relied. See Agostini, 117 S.Ct. at 2010; see also discussion

supra Part II.C.1. By contrast, the Court invalidated the

Community Education program, not because of any unfounded

assumptions about public employees’ behavior, but instead because

of the genuine “conflict of functions” present when a teacher must

fill two mutually-exclusive roles in the course of a single

schoolday. See Ball, 473 U.S. at 387.

A few other aspects of Ball bear noting. First, the Court

gave no weight to whether the courses offered by either program

were “supplemental.” Even if the courses offered were, as a matter

of fact, “supplemental” insofar as they were not then offered by

the nonpublic school, the Court observed that “there is no way of

knowing whether the religious schools would have offered some or

all of these courses if the public school system had not offered

them first.” Id. at 396. Instead of focusing on the “remedial” or

“enrichment” aspects of the courses, the Court looked more broadly

to their “general subject matter” (reading, mathematics, etc.),

31

which was “surely a part of the curriculum in the past....” Id.

Thus, “the concerns of the Establishment Clause may ... be

triggered despite the ‘supplemental’ nature of the courses.” Id.

Second, the Court noted that “respondents adduced no evidence

of specific incidents of religious indoctrination in this case.”

Id. at 388. Nonetheless, the Court frankly observed that “the

absence of proof of specific incidents is not dispositive,” because

neither the religious schools nor the teachers, parents and

students would have any incentive “to complain if the effect of the

publicly supported instruction were to advance the schools’

sectarian mission.” Id. at 388-89. The Court had earlier noted

that neither the Community Education nor the Shared Time program

was monitored for religious content. See id. at 387.

Finally, we think it especially noteworthy that Justice

O’Connor (the author of Agostini) and (then) Chief Justice Burger

dissented in Ball, but only as to the Shared Time program. Both

invalidated the Community Education program. See Ball, 473 U.S. at

398 (Burger, C.J., concurring in the judgment in part and

dissenting in part), and 473 U.S. at 398-400 (O’Connor, J.,

concurring in the judgment in part and dissenting in part).

Because Justice O’Connor gave specific reasons for distinguishing

the two programs, we reproduce here the final paragraph of her

partial concurrence:

I agree with the Court, however, that the

Community Education program violates the

32

Establishment Clause. The record indicates

that Community Education courses in the

parochial schools are overwhelmingly taught by

instructors who are current full-time

employees of the parochial school. The

teachers offer secular subjects to the same

parochial school students who attend their

regular parochial school classes. In

addition, the supervisors of the Community

Education program in the parochial schools are

by and large the principals of the very

schools where the classes are offered. When

full-time parochial school teachers receive

public funds to teach secular courses to their

parochial school students under parochial

school supervision, I agree that the program

has the perceived and actual effect of

advancing the religious aims of the church-

related schools. This is particularly the

case where, as here, religion pervades the

curriculum and the teachers are accustomed to

bring religion to play in everything they

teach. I concur in the judgment of the Court

that the Community Education program violates

the Establishment Clause.

Id. at 398-400 (O’Connor, J., concurring in the judgment in part

and dissenting in part).

D.

Having in some degree clarified the legal principles governing

our discussion, we now apply them to the Louisiana special

education program, as administered in Jefferson Parish. Naturally,

we walk within the path recently marked out in Agostini. At the

same time, however, we are mindful that this is an area of

constitutional law that is not blessed with easy answers. The most

concrete tools at our disposal are the actual school aid programs

the Supreme Court has either validated or invalidated. Thus,

although we apply the analysis of Agostini, our ultimate goal is to

33

determine whether the Louisiana special education statute is more

like the constitutional aid programs approved by Agostini (i.e.,

the New York City program and the Grand Rapids Shared Time program)

or more like the unconstitutional program condemned by Ball (the

Community Education program). See, e.g., Mueller, 463 U.S. at 393-

94 (employing a similarly “comparative” analysis).

As we read Agostini, the Supreme Court has not abandoned, nor

even fundamentally changed, the Lemon test. See Agostini, 117

S.Ct. at 2010 (“To be sure, the general principles we use to

evaluate whether government aid violates the Establishment Clause

have not changed since Aguilar was decided.”). The first prong of

Lemon, which asks whether a statute has a secular legislative

purpose, remains unchanged. See Lemon, 403 U.S. at 612-13. The

Court has, however, somewhat altered its “understanding of the

criteria used to assess whether aid to religion has an

impermissible effect.” Id. Specifically, the Court has abandoned

three of the assumptions which underlay the second (“effects”)

prong of Lemon in prior cases. Id.; see also discussion supra

Part II.C.1. The Court has also expressly recognized that the

third (“entanglement”) prong of Lemon is more properly addressed as

an aspect of the “effects” prong. Agostini, 117 S.Ct. at 2015. It

thus seems that, fairly restated, the post-Agostini Lemon test

includes the first (“secular purpose”) prong plus the following,

re-tooled “effects” prong:

34

[T]he three criteria we currently use to

evaluate whether government aid has the effect

of advancing religion: [does the aid] result

in governmental indoctrination[?]; [does the

aid] define its recipients by reference to

religion[?]; or [does the aid] create an

excessive entanglement[?]

Agostini, 117 S.Ct. at 2016 (brackets added).

1.

The Supreme Court has consistently found that even those State

laws that run afoul of other aspects of Lemon may nonetheless have

a “secular legislative purpose.” See Mueller, 463 U.S. at 394.

Following the Court’s lead, then, we will exhibit a “reluctance

[in] attribut[ing] unconstitutional motives” to the State of

Louisiana as we examine whether “a plausible secular purpose for

the state’s program may be discerned from the face of the statute.”

Id. at 394-95.

We need not look far. The avowed purpose of the special

education statute is “to assure and require that the state shall

fund a program of special education and related services for the

exceptional children of the state.” LA.REV.STAT.ANN. § 17:1942

(West 1982). Nothing on the face of the statute belies the

Legislature’s purely secular aims in enacting it. Indeed, one of

the public policies announced in the statute is to “prevent denials

of equal educational opportunities on the basis of national origin,

sex, economic status, race, religion, and physical or mental

handicap or other exceptionalities in the provision of appropriate,

35

free publicly supported education.” LA.REV.STAT.ANN. § 17:1941

(West 1982)(emphasis added). We find that the equitable provision

of special education services to exceptional children is a “secular

legislative purpose” under Lemon. See, e.g., Witters, 474 U.S. at

485-86.

2.

The government may not participate in the indoctrination of

religion, because such government activity “has the impermissible

effect of advancing religion.” Agostini, 117 S.Ct. at 2010; see

Lemon, 403 U.S. at 612. It is as easy to agree with such a

proposition in the abstract as it is difficult to apply it to a

particular governmental program. The Lemon Court itself remarked

that “the line of separation [between church and state], far from

being a ‘wall,’ is a blurred, indistinct, and variable barrier

depending on the circumstances of a particular relationship.”

Lemon, 403 U.S. at 614.

a.

Regarding indoctrination, Agostini first instructs us that the

mere presence of a publicly paid teacher on sectarian school

premises will no longer give rise to the presumption that those

teachers will inculcate religion in their students. See Agostini,

117 S.Ct. at 2011. The record in this case discloses no evidence

whatsoever that any of the special education teachers at the eight

Jefferson Parish parochial schools have ever attempted to

36

indoctrinate their students. The special education teachers are

bound by law to teach only what is included in a student’s IEP, and

an IEP cannot describe religious instruction. We will not presume

that qualified, conscientious state employees are violating the

law.

The employment status of these special education teachers

falls somewhere between the Title I instructors in Agostini and the

Community Education teachers in Ball. The Jefferson Parish special

education teachers are full-time public employees who are not

concurrently employed by the parochial schools where they work.

Thus, they do not suffer from the “conflict of functions” present

in the Community Education teachers in Ball. See Ball, 473 U.S. at

387. Unlike the Agostini teachers, however, the Jefferson Parish

teachers are, in a sense, “permanently” assigned to their

respective parochial schools under the terms of the Collective

Bargaining Agreement. The Jefferson Parish teachers do not move

from school to school, as the Agostini teachers do, and many of the

Jefferson Parish teachers share the religious affiliation of their

schools. See Agostini, 117 S.Ct. at 2004. We observe, however,

that the Shared Time teachers in Ball were, in a significant number

of cases, former employees of the schools at which they

subsequently worked as State-paid teachers. See Ball, 473 U.S. at

376.

Naturally, the Jefferson Parish special education teachers

37

have frequent contacts with their fellow sectarian teachers and the

sectarian principals. The special education teacher may even

consider him or herself an informal member of the parochial

faculty, as evidenced by the fact that special education teachers

attend monthly faculty meetings. But, while admitting that we

strike a fine balance, we do not find that the Jefferson Parish

special education teachers labor under the same, irreconcilable

“conflict of functions” that spelled doom for the Community

Education program in Ball, supra. The Jefferson Parish teachers

are simply not asked to act in the capacity of a “religious school”

teacher during one part of the day, and then to assume the purely

secular role of a publicly-funded special education teacher during

another.

We are somewhat troubled by the evidence indicating that the

special education teachers are monitored by both public and

sectarian entities. The record shows that special education

teachers are subject to infrequent visits by state personnel and

are otherwise subject to the regular, albeit non-personal,

supervision of state IEP specialists. The record also shows,

however, that SESC executive director Janz as well as the parochial

school principals exercise some level of supervision over the

special education teachers.

If the State delegated its supervisory authority over the

special education program to the sectarian schools themselves, or

38

to a sectarian institution such as the SESC, then the program might

not withstand scrutiny under the Establishment Clause. See, e.g.,

Wolman v. Walter, 433 U.S. 229, 252-55 (1977). We are not

persuaded, however, that the State has abdicated its review of the

substance of the special education instruction to the sectarian

institutions. While the record does show limited supervision of

the teachers by the SESC and the parochial school principals, that

supervision seems more related to administrative matters than to

assuring that the special education teachers do not impart religion

to the students. The State, through its monitoring visits and

through the IEP process, has retained sufficient authority over the

substantive aspects of the special education instruction.

Agostini also instructs us that the mere presence of a

publicly-paid teacher on religious school premises will no longer

“create[] an impermissible ‘symbolic link’ between government and

religion.” Agostini, 117 S.Ct. at 2011. We need not long belabor

this point, because the record discloses no evidence that the

special education program has done anything more than place its

teachers on sectarian school premises.12 The fact that many of the

12

While we certainly do not place our imprimatur on the presence

of religious symbols in state-funded special education classrooms,

the evidence indicating the presence, in one instance, of a

crucifix in a classroom is insufficient to show that the Jefferson

Parish special education program has created a “symbolic link”

between church and state. Other evidence indicates that program

monitors would remove such a symbol if they found it in a

classroom, even though the State of Louisiana does not have an

articulated policy requiring inspection for, and removal of,

39

teachers were formerly employed by the same schools is insufficient

to create a “symbolic link” between church and state, given that

many of the Shared Time teachers in Ball shared a similar

employment history. See Ball, 473 U.S. at 376. Our view is not

altered by the fact that the special education teachers have

limited “administrative ties” to the parochial schools -- i.e.,

they attend monthly faculty meetings; they can be assigned bus duty

or lunch duty; etc. If the Supreme Court found it neither

“sensible” nor “sound” to make a program’s constitutionality depend

on where services were provided, we find it equally nonsensical and

unsound to make its constitutionality turn on whether state-paid

teachers attend faculty meetings or perform lunch duty. See

Agostini, 117 S.Ct. at 2012.

Finally, Agostini informs us that not every form of government

aid that “directly aids the educational function of religious

schools is invalid.” Id. at 2011. In distinguishing between valid

and invalid direct aid, we look, per Agostini, to the criteria for

distributing the aid and for identifying its beneficiaries, the

means by which any of the aid might potentially benefit religious

schools, and whether the aid “relieve[s] sectarian schools of costs

they otherwise would have borne in educating their students.” Id.

at 2012, citing Zobrest, 509 U.S. at 12. As discussed before, the

district court found that State funds are awarded to Jefferson

religious symbols from public classrooms.

40

Parish based on the number of exceptional students there. See

discussion supra Part II.A. Whether or not a student qualifies as

“exceptional” depends on entirely secular statutory criteria. See

supra note 2; see also LA.REV.STAT.ANN. § 1943(2)(West Supp. 1998).

Thus, the statutory scheme implementing the special education

program shows that any aid is “made available generally without

regard to the sectarian-nonsectarian, public-nonpublic nature of

the institution benefitted.” Agostini, 117 S.Ct. at 2011, quoting

Witters, 474 U.S. at 487.

Agostini seemed to require that “any money that ultimately

went to [the sectarian schools] ‘did so only as a result of the

genuinely independent and private choices of’ individuals.”

Agostini, 117 S.Ct. at 2011-12, quoting Witters, 474 U.S. at 487;

see also Zobrest, 509 U.S. at 9. Relative to this requirement, the

Court instructs us to examine the criteria by which the challenged

program selects its recipients. Agostini, 117 S.Ct. at 2012. As

we observed above, the Louisiana special education program selects

its recipients based solely on the “exceptionality” of a particular

student and on the number of exceptional students enrolled in a

given school district. The fact that a particular exceptional

student is enrolled in a particular school, be it sectarian or

nonsectarian, results from a parental and not a governmental

decision. Thus, any aid flowing incidentally to a sectarian school

occurs “only as a result of the genuinely independent and private

choices of” those students’ parents. See Zobrest, 509 U.S. at 9.

41

Finally, Agostini mandates that any incidental benefits

accruing to the sectarian schools as a result of the program cannot

relieve the schools of costs they “otherwise would have borne in

educating [their] students.” Agostini, 117 S.Ct. at 2012. Failure

to meet this requirement presupposes that the Jefferson Parish

sectarian schools, in the absence of the special education program,

would have “otherwise borne” the costs of providing special

education services to their exceptional students. But only the

State, and not the sectarian schools, has the legal duty to

“provide an appropriate, free, publicly supported education to

every exceptional child” residing in Louisiana. See

LA.REV.STAT.ANN. § 17:1941 (West 1982). Since the sectarian schools

are not required to provide such an education, we fail to see how

the State’s fulfilling its statutory obligation to do so relieves

private schools of any burden at all. This case does not present

the situation where the State furnishes aid which alleviates a

private school’s legal duty to provide, for example, a state-

mandated core curriculum to its students. Cf. Ball, 473 U.S. at

396-97.

The district court made much of its conclusion that the

sectarian schools receive a “direct economic benefit” as a result

of the special education program, in the form of a student’s

tuition and the surcharge paid by parents to supplement the special

education teachers’ salaries. See Helms, 856 F.Supp. at 1117-18;

see also discussion supra Part II.A. But to view the students’

42

tuition as an “economic benefit” requires the assumptions that “the

school makes a profit on each student; that, without the [special

education program], the child would have gone to school elsewhere;

and that the school, then, would have been unable to fill that

child’s spot.” Zobrest, 509 U.S. at 10-11. The Supreme Court was

unwilling to make such assumptions and regard the deaf student’s

tuition as an “economic benefit” in Zobrest. See id. Given the

Court’s close reliance on Zobrest in Agostini, we are likewise

unwilling to make them. See Agostini, 117 S.Ct. at 2012 (“In all

relevant respects, the provision of instructional services under

Title I is indistinguishable from the provision of sign-language

interpreters under the IDEA.”), citing Zobrest, 509 U.S. at 12.

Additionally, the surcharge required of parochial school

parents is merely intended to equalize the salaries of special

education teachers working in nonpublic schools to those of special

education teachers working in public schools. See Helms, 856

F.Supp. at 1110, 1117.13 We do not view the receipt of such a

surcharge from parents as any kind of “economic benefit” to the

sectarian schools. The record indicates that the surcharges are

paid into accounts earmarked for “special education expenses” and

are used exclusively to supplement the salaries of special

education teachers. Id. at 1117. The district court thus erred

when it considered this surcharge a “direct economic benefit” to

13

In the public schools, this surcharge is paid by the JPSB. Id.

at 1110; see discussion supra Part II.A.

43

the parochial schools. Indeed, there is no discernible “benefit”

flowing to the schools from the surcharge; rather, the surcharge

represents an economic burden imposed on the parents of parochial

school children who wish to secure special education services for

their children. The surcharge never reaches, in any meaningful

way, the general coffers of the parochial schools.

b.

We need not long consider whether the criteria by which the

special education program selects its beneficiaries “create a

financial incentive to undertake religious indoctrination.”

Agostini, 117 S.Ct. at 2014. We have already observed, in Part

II.D.2.a, supra, that the Louisiana special education program

selects its aid beneficiaries based on neutral, secular criteria:

the exceptionality of the child and the number of exceptional

students enrolled in Jefferson Parish and in its individual school

districts. These are “neutral, secular criteria that neither favor

nor disfavor religion, and [the aid] is [therefore] made available

to both religious and secular beneficiaries on a nondiscriminatory

basis.” Agostini, 117 S.Ct. at 2014. The Louisiana program does

not “define its recipients with reference to religion” and

therefore creates no financial incentive to undertake religious

instruction. Id. at 2016. Indeed, as the district court stated:

The Court finds that there was no financial

incentive for the parents of special education

students to choose a nonpublic school. In

fact, it is undisputed that the students would

44

have received special education at no cost in

the public schools. Indeed, the parents of

special education students elected to pay an

extra charge, in addition to the regular

tuition, in order for their children to attend

a parochial school.

Helms, 856 F.Supp. at 1117.

c.

We likewise discern no “excessive entanglement” created or

necessitated by the special education program. Now that the

Supreme Court has discarded the presumption that publicly-paid

teachers on sectarian school premises will inculcate religion, also

relegated to the dustbin is the “assumption that pervasive

monitoring of [those teachers] is required.” Agostini, 117 S.Ct.

at 2016. We have not been shown any evidence demonstrating that

the monitoring already in place is “insufficient to prevent or to

detect inculcation.” Id. The district court specifically noted

that “[t]he JPPSS special education teachers at nonpublic schools

do not teach religion” and that “[t]he special education classrooms

are used only for special education instruction.” Helms, 856

F.Supp. at 1114. We see no reason to disturb those findings.

E.

In sum, we find that the Louisiana special education program,

codified at LA.REV.STAT.ANN. § 17:1941-1956 (West 1982 & West Supp.

1998), does not offend the Establishment Clause because (1) the

statute has a secular legislative purpose, and (2) the statute does

not have the effect of advancing religion. See Agostini, 117 S.Ct.

45

at 2016. We therefore REVERSE the judgment of the district court

and RENDER judgment declaring the Louisiana special education

program constitutional as applied in Jefferson Parish.

III.

Plaintiffs also claim that Chapter 2 of Title I of the

Elementary and Secondary Education Act of 1965 (“Chapter 2")14 and

its Louisiana counterpart, LA.REV.STAT.ANN. § 17:351-52 (West 1982

& West Supp. 1998), violate the Establishment Clause as applied in

Jefferson Parish insofar as they provide direct aid to sectarian

schools in the form of educational and instructional materials.

Initially, the district court agreed and granted Plaintiffs’ motion

for summary judgment, finding that the loan of state-owned

instructional materials (such as slide projectors, television sets,

tape recorders, maps, globes, computers, etc.) to pervasively

sectarian institutions had the “primary effect of providing a

direct and substantial advancement to the sectarian enterprise” and

therefore violated the Establishment Clause. The court relied

primarily on Wolman v. Walter, 433 U.S. 229, 250 (1977), and Meek

v. Pittenger, 421 U.S. 349, 363 (1975).

When the case was reassigned due to Judge Frederick Heebe’s

14

On October 20, 1994, Congress enacted the Improving America’s

School Act of 1994, Pub.L. 103-382, 108 Stat. 3518. Former Chapter

2 is now labeled “Subchapter VI -- Innovative Education Program

Strategies” and is codified at 20 U.S.C. §§ 7301-7373 (West Supp.

1998). For ease of reference, we will continue to refer to new

Subchapter VI as “Chapter 2.” We will cite individual sections,

however, by reference to citations in the current United States

Code.

46

retirement, Judge Marcel Livaudais granted Defendants’ motion to

reconsider the court’s ruling. Following the reasoning of the

Ninth Circuit in Walker v. San Francisco Unified School District,

46 F.3d 1449, 1463-70 (1995), Judge Livaudais found that the

reasoning in Meek and Wolman, supra, had been undermined by

subsequent Supreme Court cases. He therefore reversed Judge

Heebe’s finding of unconstitutionality and granted Defendants’

motion for summary judgment, declaring Chapter 2 and

LA.REV.STAT.ANN. § 17:351-52 constitutional, facially and as applied

in Jefferson Parish.

A.

Chapter 2 provides financial assistance through “block grants”

to state and local educational agencies to implement eight

“innovative assistance programs.” See 20 U.S.C. §§ 7311(b);

7312(a),(c)(1); 7351. The challenged innovative assistance program

describes

programs for the acquisition and use of

instructional and educational materials,

including library services and materials

(including media materials), assessments,

reference materials, computer software and

hardware for instructional use, and other

curricular materials which are tied to high

academic standards and which will be used to

improve student achievement and which are part

of an overall education reform program.

20 U.S.C. § 7351(b)(2).

Chapter 2 services are to be provided to children enrolled in

both “public and private, nonprofit schools.” 20 U.S.C. § 7312.

47

Section 7372 provides that a local educational agency shall

equitably provide “secular, neutral, and nonideological services,

materials, and equipment” to students who are enrolled in private

nonprofit elementary and secondary schools within its boundaries.

20 U.S.C. § 7372(a)(1). Chapter 2 funds for the innovative

assistance programs must supplement, and in no case supplant,

“funds from non-Federal sources.” 20 U.S.C. § 7371(b). The

control of Chapter 2 funds, as well as title to all Chapter 2

“materials, equipment, and property,” must be in a public agency,

“and a public agency shall administer such funds and property.” 20

U.S.C. § 7372(c)(1). In addition, any services provided for the

benefit of private school students must be provided by a public

agency or through a contractor who is “independent of such private

school and of any religious organizations.” 20 U.S.C. §

7372(c)(2).

Once Louisiana receives its Chapter 2 funds from the Federal

government, the designated State Educational Agency (“SEA”)

allocates 80 percent of the funds to Local Educational Agencies

(“LEAs”). Eighty-five percent of those funds are earmarked for

LEAs based on the number of participating elementary and secondary

school students in both public and private, nonprofit schools; 15%

go to LEAs based on the number of children from low-income

families. See 20 U.S.C. § 7312(a). During the fiscal year 1984-

85, Jefferson Parish received $655,671 in Chapter 2 funds; about

70% of those funds were allocated to public schools and about 30%

48

to nonpublic schools.

In 1984, the State instituted a monitoring process to ensure

that Chapter 2 materials were not being used for religious

purposes. Nonpublic schools were encouraged but not required to

sign assurances that they would only use loaned materials for

secular purposes. Additionally, LEAs made monitoring visits to

nonpublic schools, and the State made monitoring visits to the LEAs

and to some nonpublic schools. After the United States Department

of Education conducted an on-site visit to review the Louisiana

Chapter 2 program in September, 1984, the Louisiana Department of

Education made changes in monitoring LEAs. It increased, for

example, the frequency of on-site visits by the Chapter 2 staff to

LEAs from once every three years to once every two years.

The State also began reviewing the LEAs’ monitoring process of

the private schools. LEAs, however, have primary responsibility in

Louisiana for monitoring their Chapter 2 programs and for

compliance with all applicable State and Federal guidelines. When

State Chapter 2 monitors visited the JPPSS in April, 1985, the

monitors found that “the services, materials, equipment, [and]

other benefits provided to nonpublic schools” in Jefferson Parish

were not “neutral, secular and non-ideological.”

A report of that evaluation prepared by the Bureau of

Evaluation indicates that, while the LEAs “handle most of the

administrative matters related to Chapter 2, the nonpublic schools

make the decisions about how to spend their Chapter 2 allocations,

49

and they do so independently of one another.” The report also

states that “[e]xcept that funds cannot be spent for support of

religious or ideological instruction, flexibility in the use of

Chapter 2 funds puts a minimum of limitations on the kinds of

expenditures allowed.” During the 1986-87 fiscal year, for

example, of the total amount of Chapter 2 funds budgeted for

nonpublic schools ($214,080), $94,758 was spent to provide

library/media materials, $102,862 was spent for instructional

equipment, and $16,460 was spent for “local improvement programs.”

Ruth Woodward, the Coordinator of the Chapter 2 program in

Jefferson Parish, stated that library books are ordered for

nonpublic schools, but not for public schools. Such library books

are stamped “ECIA Chapter 2.” Woodward reviews the titles of books

and other Chapter 2 materials and deletes titles she finds

inappropriate. After reviewing library book orders from 1982,

Woodward discovered approximately 191 titles in violation of

Chapter 2 guidelines and had the books recalled and donated to the

public library.

Woodward also stated that she generally makes a single visit

to a given nonpublic school during the year. During her monitoring

visits, she stated that she has “normally” found that the Chapter

2 materials and equipment are used in accordance with Chapter 2

guidelines. A review of the instructional materials purchased with

Chapter 2 funds during 1986-87 and loaned to nonpublic, parochial

schools reveals the following kinds of items: filmstrip

50

projectors, overhead projectors, television sets, motion picture

projectors, video cassette recorders, video camcorders, computers,

printers, phonographs, slide projectors, etc. Woodward stated that

no direct payments of Chapter 2 funds are ever made to nonpublic

schools; the funds are retained and administered by her office.

The Louisiana counterpart to Chapter 2, LA.REV.STAT.ANN. §

17:351-52 (West 1982 & West Supp. 1998), requires the State Board

of Elementary and Secondary Education to “prescribe and adopt

school books and other materials of instruction, which it shall

supply without charge to the children of [Louisiana] at the

elementary and secondary levels....” LA.REV.STAT.ANN. §

17:351(A)(1)(West Supp. 1998). The statute also requires that the

Board, or the State Department of Education, ensure that any books

or instructional materials provided “are throughly screened,

reviewed, and approved as to their content....” LA.REV.STAT.ANN. §

17:352(A)(1)(West Supp. 1998).15 Judge Livaudais noted that an

“overwhelming portion” of funds allocated under the Louisiana

statute are used to purchase textbooks, and that Plaintiffs have

not challenged this application of the statute.

Deposition testimony indicated that library reference books

15

An additional section, creating a “Teacher Supplies Fund,”

became effective June 30, 1997, after Judge Livaudais granted

Defendants’ motion for summary judgment. See LA.REV.STAT.ANN. §

17:354 (West Supp. 1998), added by Acts 1997, No. 473, § 1, eff.

June 30, 1997. Section 354 is not at issue in this appeal, but we

note in passing that it provides, inter alia, State funds “for the

purchase and loan of teaching materials and supplies” to nonpublic

schools, under constraints similar to those in Chapter 2.

51

purchased pursuant to LA.REV.STAT.ANN. § 17:351 are ordered from

lists approved by the Louisiana Board of Elementary and Secondary

Education. Additionally, books and instructional materials may

only be ordered from state-approved lists and sources.

B.

We will focus on the Ninth Circuit’s decision in Walker,

supra, because Judge Livaudais relied heavily on its reasoning and

also because it is the only other Circuit decision to have

addressed the constitutionality of Chapter 2.

In Walker, a panel of the Ninth Circuit confronted a Chapter

2 program that was, in all relevant respects, identical to the one

we confront in Jefferson Parish.16 The most significant aspect of

the Walker panel’s reasoning is devoted to assessing whether

Chapter 2 has a “primary or principal effect of advancing

religion.”17 Walker, 46 F.3d at 1464-69. The panel began by

observing that, with the cases of Meek, Wolman and Board of

Education v. Allen, 392 U.S. 236 (1968), the Supreme Court “drew a

[constitutional] distinction between providing textbooks and

providing other instructional materials -- such as maps, overhead

16

Aside from the identical statutory provision governing the

Walker program, the percentage distribution of Chapter 2 funds for

the 1988-89 school year were substantially similar to figures for

the Jefferson Parish program: 74% of Chapter 2 benefits to public

schools and 26% to private schools in Walker, compared to, e.g., a

70%/30% split in Jefferson Parish during the 1984-85 school year.

17

The panel easily concluded that Chapter 2 has the valid secular

purpose of “improv[ing] education.” Walker, 46 F.3d at 1464,

citing Meek, 421 U.S. at 363.

52

projectors, and lab equipment -- to parochial schools or their

students.” Walker, 46 F.3d at 1464-65; see Allen, 392 U.S. at

248; Meek, 421 U.S. at 362-63; Wolman, 433 U.S. at 237. The panel,

however, was not convinced that such a distinction was still the

law. In its view, subsequent Supreme Court cases -- particularly,

Committee for Public Education and Religious Liberty v. Regan, 444

U.S. 646 (1980), Ball, supra, and Zobrest, supra -- had “clarified

the holdings of Meek and Wolman, and rendered untenable the thin

distinction between textbooks and other instructional materials.”

Walker, 46 F.3d at 1465. The Ninth Circuit thus held that “under

Chapter 2, the loaning of neutral, secular equipment and

instructional materials to parochial schools does not have the

primary or principal effect of advancing religion.” Id.

The panel read Meek as an illogical departure from Allen,

which had upheld a law requiring public school authorities to lend

textbooks, free of charge, to both public and private school

students. Allen, 392 U.S. at 248. The panel pointed out that

“Allen ... rests on the robust principle that ‘the Establishment

Clause does not prohibit a State from extending the benefits of

state laws to all citizens without regard for their religious

affiliation.” Walker, 46 F.3d at 1465, quoting Allen, 392 U.S. at

242. In the panel’s view, however, the Court’s subsequent decision

in Meek departed from Allen’s reliance on neutrality when Meek

“upheld the provision of textbooks to parochial school students,

but struck down the program which loaned instructional materials

53

and equipment....” Walker, 46 F.3d at 1465 (citations omitted);

see Meek, 421 U.S. 362, 365-66.

Even though the Court’s subsequent decision in Wolman

explicitly upheld Meek, the Walker panel believed that “[i]n

reaffirming Meek’s holding ... Wolman undermined Meek’s rationale.”

Walker, 46 F.3d at 1465; see Wolman, 433 U.S. at 238 (upholding

Meek and Allen). Specifically, the panel concluded that Wolman had

“eviscerated” Meek’s premise that “any state aid to the educational

functions of a sectarian school is forbidden.” Walker, 46 F.3d at

1465. Wolman did so, the panel reasoned, by “holding as

constitutional a statute under which the State prepared and graded

tests in secular subjects” for both public and private, parochial

schools. Id. Thus, the Walker panel announced that the paltry sum

of Meek and Wolman was

the thin distinction -- unmoored from any

Establishment Clause principles -- that state

loans to parochial schools of instructional

materials and equipment impermissibly advances

religion, but state preparation and grading of

tests and state loans of textbooks do not.

Walker, 46 F.3d at 1466.

In the panel’s estimation, the true death-blow to Meek’s

textbooks vs. other instructional materials dichotomy came three

years later in Regan, which “recognized this weak distinction and

clarified that the provision of instructional materials and

equipment to parochial schools is not always prohibited.” Walker,

46 F.3d at 1466. But, as the panel recognized in the next

54

sentence, Regan merely reaffirmed Wolman by “uph[olding] a law

reimbursing parochial schools for the costs of administering tests

required by the State.” Id.; see Regan, 444 U.S. at 655 (“We agree

with the district court that Wolman controls this case.”).

Although Regan did not deal with the provision of instructional

materials to parochial schools, and although Regan explicitly

followed Wolman and said nothing about overruling Meek, the Walker

panel nonetheless declared with perfect candor that

Regan thus instructs us that the difference

between textbooks and other instructional

equipment and materials, such as science kits

and maps, is not of constitutional

significance.

Walker, 46 F.3d at 1466. In our view, such a statement could only

mean that the panel thought Regan silently overruled Meek.

The Walker panel thus adopted an Establishment Clause analysis

based on what it identified as “the underlying principle animating

Establishment Clause jurisprudence: government neutrality towards

religion.” Id. at 1466, citing, inter alia, Zobrest, 509 U.S. at

10. The panel stated its “test” as follows:

Government neutrality becomes suspect when, in

practical effect, the governmental aid is

targeted at or disproportionately benefits

religious institutions, or when, in symbolic

effect, the governmental aid creates a

symbolic union between church and state.

Walker, 46 F.3d at 1467. Applying its test, the panel easily found

that Chapter 2 passed constitutional muster. First, it found that

Chapter 2 benefits were “neutrally available without regard to

55

religion” given that “an overwhelming percentage of beneficiaries

[were] nonparochial schools and their students.” Id.18 Second, the

panel found that the constraints under which Chapter 2 services

were provided “adequately safeguard[ed] Chapter 2 benefits from

improper diversion to religious use.” Id. at 1467-68. Finally,

the panel reasoned that, if the state-paid interpreter on sectarian

school premises in Zobrest did not create a symbolic union between

government and religion, then “certainly having religiously neutral

material and equipment in the same classroom does not create a

symbolic union either.” Id. at 1468, citing Zobrest, 509 U.S. at

13.

Although it had already established (to its own satisfaction)

that Meek and Wolman were no longer good law, the panel went on to

distinguish the aid programs in those cases from Chapter 2:

[T]he statutes struck down in Meek and Wolman

are fundamentally different from the Chapter 2

statute at issue here. The statute in Meek

was not neutral because it provided close to

$12 million in aid that was targeted directly

at private schools, of which more than 75%

were church-related. Similarly, in Wolman,

the statute was not neutral because it

provided $88.8 million in aid that was

targeted directly at private schools, of which

96% were church-related and 92% were Catholic.

Here, seventy-four percent of Chapter 2

benefits went to public schools. Of the

remaining twenty-six percent ... a substantial

portion was allocated to nonreligious private

18

The panel also found that, given the de minimis aid provided

per student ($6.65 per student in 1988-89), “it is no surprise that

Chapter 2 funds are supplementary and cannot supplant the basic

educational services of the religious schools.” Id.

56

schools. Indeed, over thirty percent of the

private schools under the Chapter 2 program

are nonreligious. Thus, unlike the statutes

in Meek and Wolman, Chapter 2 is a neutral,

generally applicable statute that provides

benefits to all schools, of which the

overwhelming beneficiaries are nonparochial

schools.

Walker, 46 F.3d at 1468.19

The Walker panel decision was not without its detractors,

however. While Judge Fernandez agreed with the panel majority that

the distinction drawn in Meek between textbooks and educational

materials was “untenable,” he nevertheless believed that Meek was

still binding law. See Walker, 46 F.3d at 1470 (Fernandez, J.,

concurring and dissenting)(“[The Supreme] Court has given us the

book-for-kids versus materials-for-schools dichotomy. Only it can

take it away.”). Additionally, the Ninth Circuit’s refusal to

rehear the case en banc provoked a vituperative dissent by Judge

Reinhardt (joined by Judges Pregerson and Hawkins). Judge

Reinhardt excoriated the panel majority for shirking its “clear

duty to invalidate the San Francisco Unified School District’s

provision of videos, overhead projectors, televisions, record

players, and similar equipment to parochial schools.” Walker v.

San Francisco Unified School District, 62 F.3d 300, 301

19

The panel also found that Chapter 2 did not violate the

“entanglement” prong of Lemon, given the minimal intrusion onto the

parochial schools premises by State monitors, and also given the

“self-policing” nature of the neutral instructional materials and

equipment. Walker, 46 F.3d at 1469, citing, inter alia, Meek, 349

U.S. at 365, and Zobrest, 509 U.S. at 13-14.

57

(1995)(Reinhardt, J., dissenting from denial of en banc rehearing).

Judge Reinhardt repeatedly emphasized that Meek and Wolman were

still binding precedent and that “[t]he distinction between

textbooks and other educational materials is so clear and well-

established as to defy legitimate judicial evasion.” Id.

C.

When we carefully review the Supreme Court’s pronouncements in

Allen, Meek, Wolman, and Regan, it is tempting to complain that the

high Court has instructed us confusingly. As merely one example,

the Court in Allen registered its disagreement with the proposition

“that the processes of secular and religious training are so

intertwined that secular textbooks furnished to students by the

public are in fact instrumental in the teaching of religion.”

Allen, 392 U.S. at 248. Only seven years later, however, the Court

was heard to say in Meek that “[t]he secular education [that

parochial] schools provide goes hand in hand with the religious

mission that is the only reason for the schools’ existence. Within

the institution, the two are inextricably intertwined.” Meek, 421

U.S. at 366, quoting Lemon, 403 U.S. at 657 (opinion of Brennan,

J.)(emphasis added). Lest we fall into despair, however, we will

view the Court’s cases dealing with state aid to religious schools

more in terms of what they did rather than what they said.

When we take that approach, the solution becomes compellingly

clear and simple. Meek and Wolman have squarely held that what the

58

government is attempting to accomplish through Chapter 2, it may

not do. No case has struck down Meek or Wolman. We could take out

our judicial divining rod and try to predict, on the basis of what

has been said since Meek and Wolman, what the present Court would

do if called upon to weigh the constitutionality of Chapter 2. But

such a course would, we think, take us beyond our role as a Circuit

Court of Appeals, bound to follow the dictates of the Supreme

Court. And if our duty were not already clear enough, the Court

has recently reminded us of it in Agostini:

We do not acknowledge, and we do not hold,

that other courts should conclude our more

recent cases have, by implication, overruled

an earlier precedent. We reaffirm that “if a

precedent of this Court has direct application

in a case, yet appears to rest on reasons

rejected in some other line of decisions, the

Court of Appeals should follow the case which

directly controls, leaving to this Court the

prerogative of overruling its own decisions.”

Agostini, 117 S.Ct. at 2017, quoting Rodriguez de Quijas v.

Shearson/American Express, 490 U.S. 477, 484 (1989)(emphasis

added).

Meek invalidated a Pennsylvania statute that authorized the

Secretary of Education to lend to parochial schools “instructional

materials” which included “periodicals, photographs, maps, charts,

sound recordings, films, ... projection equipment, recording

equipment, and laboratory equipment.” Meek, 421 U.S. at 354-55,

366; see also Meek, 421 U.S. at 354 n.4 (complete statutory

definition of “instructional materials.”). Meek is directly on

59

point and has not been overruled by any Supreme Court case. We

thus “follow the case that directly controls.” See Agostini, 117

S.Ct. at 2017.

In Allen, Meek, Wolman, and Regan, the Court drew a series of

boundary lines between constitutional and unconstitutional state

aid to parochial schools, based on the character of the aid itself.

Allen approved textbook loans to parochial schools because the

evidence did not indicate that “all textbooks ... are used by the

parochial schools to teach religion.” Allen, 392 U.S. at 248.

While recognizing that books, if they were religious books, could

have the effect of indoctrination, the Allen Court likened the

purely secular books at issue there to the bus transportation

subsidized in Everson v. Board of Education, 330 U.S. 1, 17 (1947):

neither bus rides nor purely secular textbooks had “inherent

religious significance.” Allen, 392 U.S. at 244. While Justices

Black and Douglas dissented in Allen, they did so based on a

different conception of the role of textbooks in parochial schools.

See Allen, 392 U.S. at 252 (Black, J., dissenting)(“Books are the

most essential tool of education since they contain the resources

of knowledge which the educational process is designed to

exploit.”), and Allen, 392 U.S. at 257(Douglas, J.,

dissenting)(“The textbook goes to the very heart of the education

in a parochial school.”). Both the majority and the dissenting

opinions, however, consistently focused on the character of the aid

60

given to parochial schools.

Meek and Wolman, while both reaffirming Allen, nevertheless

invalidated state programs lending instructional materials other

than textbooks to parochial schools and schoolchildren. Meek

merely intimated that the character of the aid was the

determinative feature in its holding. See Meek, 421 U.S. at 364

(“[A] State may include church-related schools in programs

providing bus transportation, school lunches, and public health

facilities -- secular and nonideological services unrelated to the

primary, religion-oriented educational function of the sectarian

school.”)(emphasis added). But Wolman clarified that, in the

Court’s view, the character of the aid itself determined whether

the aid was constitutional. Wolman did so by upholding several

different types of aid (textbooks, administration of state-required

standardized tests, speech/hearing diagnostic services, off-

premises therapeutic/guidance/remedial services), while at the same

time striking down, based on Meek, the loan of instructional

materials to parochial schoolchildren. See Wolman, 433 U.S. at

236-38, 238-41, 241-244, 244-248, 248-252. The Wolman Court

distinguished among these various types of aid by reference to the

particular attributes of the aid itself. See, e.g., Wolman, 433

U.S. at 244(“[D]iagnostic services, unlike teaching or counseling,

have little or no educational content and are not closely

associated with the educational mission of the nonpublic school.”).

61

Wolman candidly recognized the “tension” existing between the

holdings in Meek and Allen and sought to resolve that tension by

emphasizing the unique character of the aid approved in Allen,

i.e., that “the educational content of textbooks is something that

can be ascertained in advance and cannot be diverted to sectarian

uses.” See Wolman, 433 U.S. at 251 n.18; see also Committee for

Public Education v. Nyquist, 413 U.S. 756, 781-82 (1973).

Contrary to the Walker panel’s view, Regan did nothing to

“instruct us that the difference between textbooks and other

instructional equipment and materials ... is not of constitutional

significance.” Walker, 46 F.3d at 1466. Regan did exactly the

opposite. In seeking to harmonize the holdings of Meek and Wolman,

the Regan Court merely observed that Meek did not forbid all types

of aid to sectarian schools. See Regan, 444 U.S. at 661 . Indeed,

as the Regan Court realized, if Meek stood for such a proposition,

then Wolman’s approval of, for example, the testing and grading

services would have flown in the face of precedent. See id. Regan

clarified that Meek only invalidates a particular kind of aid to

parochial schools -- the loan of instructional materials. See id.

at 662.

The Walker panel made a flawed attempt to avoid the holdings

of Meek and Wolman by “distinguishing” the statutes at issue in

those cases from the Chapter 2 program. The panel opined that the

Meek and Wolman statutes were “fundamentally different” from

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Chapter 2 because they were not “neutral.” Walker, 46 F.3d at

1468. By this, the panel meant that the challenged programs in

Meek and Wolman directly targeted massive aid to private schools,

the vast majority of which were religiously-affiliated. See id.

By contrast, the panel distinguished Chapter 2 as a “neutral,

generally applicable statute that provides benefits to all schools,

of which the overwhelming beneficiaries are nonparochial schools.”

Id. But Walker misunderstood the aid programs struck down in Meek

and Wolman.

Those cases dealt with general aid programs designed to

provide equitable benefits to both public and nonpublic

schoolchildren. See Meek, 421 U.S. at 351-52 (“With the stated

purpose of assuring that every schoolchild in the Commonwealth will

equitably share in the benefits of auxiliary services, textbooks,

and instructional material provided free of charge to children

attending public schools, the Pennsylvania General Assembly in 1972

added Acts 194 and 195 to the Pennsylvania Public School Code of

1949.”)(citations omitted)(emphasis added), and Wolman, 433 U.S. at

234 (“All disbursements made with respect to nonpublic schools have

their equivalents in disbursements for public schools, and the

amount expended per pupil in nonpublic schools may not exceed the

amount expended per pupil in public schools.”)(emphasis added).

The Meek and Wolman Courts, however, dedicated their discussion to

those parts of the programs that channeled aid to nonpublic

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schools, because it was the character of the aid provided to those

schools, and not the relative percentages of aid distributed

between public and nonpublic schools, that was determinative. See

Walker, 62 F.3d at 302 n.1 (Reinhardt, J., dissenting from denial

of en banc rehearing). Thus, the percentages discussed in Meek and

Wolman were completely irrelevant to the constitutionality of the

programs at issue there, as was the fact that the general aid

programs might have been implemented by two separate statutes. The

Court observed in Meek, in a different context, that “it is of no

constitutional significance whether the general program is codified

in one statute or two.” Meek, 421 U.S. at 360 n.8.

Since Walker was decided before the Supreme Court handed down

Agostini, we should add that Agostini also does not overrule Meek

or Wolman; nor does Agostini dismantle the distinction between

textbooks and other educational materials. In fact, Agostini does

not even address that issue. Agostini does, it is true, discard a

premise on which Meek relied -- i.e., that “[s]ubstantial aid to

the educational function of [sectarian] schools ... necessarily

results in aid to the sectarian school enterprise as a whole.”

Meek, 421 U.S. at 366 (emphasis added). But Agostini does not

replace that assumption with the opposite assumption; instead,

Agostini only goes so far as to “depart[] from the rule ... that

all government aid that directly aids the educational function of

religious schools is invalid.” Agostini, 117 S.Ct. at 2011

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(emphasis added). Agostini holds only that the aid at issue there

(i.e., the on-premises provision of special education services by

state-paid teachers) was not the kind of governmental aid that

impermissibly advanced religion. Id. at 2016. Agostini says

nothing about the loan of instructional materials to parochial

schools and we therefore do not read it as overruling Meek or

Wolman. Agostini only instructs us that Meek’s presumption

regarding instructional materials should not be applied to state-

paid teachers on parochial schools premises. See Agostini, 117

S.Ct. at 2012; see also Ball, 473 U.S. at 395-96 (applying Meek

and Wolman to state-paid teachers).

D.

Applying Meek and Wolman, we hold that Chapter 2, 20 U.S.C. §§

7301-7373, and its Louisiana counterpart, LA.REV.STAT.ANN. §§

17:351-52 (West 1982 & West Supp. 1998), are unconstitutional as

applied in Jefferson Parish, to the extent that either program

permits the loaning of educational or instructional equipment to

sectarian schools. By prohibiting the loaning of such materials,

our decree encompasses such items as filmstrip projectors, overhead

projectors, television sets, motion picture projectors, video

cassette recorders, video camcorders, computers, printers,

phonographs, slide projectors, etc. See, e.g., Meek, 421 U.S. at

354 n.4. Our decree also necessarily prohibits the furnishing of

library books by the State, even from prescreened lists. We can

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see no way to distinguish library books from the “periodicals ...

maps, charts, sound recordings, films, or any other[] printed and

published materials of a similar nature” prohibited by Meek. See

id. at 355 (internal quotes omitted). The Supreme Court has only

allowed the lending of free textbooks to parochial schools; the

term “textbook” has generally been defined by the case law as “a

book which a pupil is required to use as a text for a semester or

more in a particular class he legally attends.” Allen, 392 U.S. at

239 n.1. We do not think library books can be subsumed within that

definition.

We therefore REVERSE Judge Livaudais’ grant of summary

judgment in favor of Defendants and RENDER judgment declaring

Chapter 2, 20 U.S.C. §§ 7301-7373, and its Louisiana counterpart,

LA.REV.STAT.ANN. §§ 17:351-52, unconstitutional as applied in

Jefferson Parish.

IV.

Plaintiffs also challenge an agreement between the JPSB and

the Jefferson Non-Public School Transportation Corporation (the

“Corporation”) entered into pursuant to LA.REV.STAT.ANN. § 17:158

(West 1982 & West Supp. 1998), under which the JPSB makes payments

to the Corporation, which in turn arranges transportation for

students to six parochial schools in Jefferson Parish. Plaintiffs

argue that the agreement impermissibly delegates civil authority to

a group (the Corporation) dedicated to serving religious interests,

in violation of the Establishment Clause, and furthermore that the

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agreement violates the neutrality requirements of the Establishment

Clause by privileging six sectarian schools over other public and

nonpublic schools. The district court, after a bench trial,

disagreed, finding the arrangement constitutionally

indistinguishable from the arrangement upheld in Everson v. Board

of Education of Ewing, 330 U.S. 1 (1947). See generally, Helms,

856 F.Supp. at 1133-55.

A.

Louisiana law requires that “each parish and city school board

shall provide free transportation for any student attending a

school of suitable grade approved by the State Board of Elementary

and Secondary Education within the jurisdictional boundaries of the

parish or school board if the student resides more than one mile

from such school.” LA.REV.STAT.ANN. § 17:158(A)(1)(West Supp.

1998). A subsection of the same statute provides that “nothing ...

shall prohibit a parish or city school from entering into contracts

or mutual agreements for providing school bus transportation.”

LA.REV.STAT.ANN. § 17:158(A)(4)(West Supp. 1998). The JPPSS

provides free transportation to eligible public and nonpublic

school students. Since 1988, nonpublic and public student bus

transportation has been funded through separate appropriations of

state funds. Bus drivers are paid through a combination of state

funds and local supplements.

During the 1988-89 school year, funding reductions for

Jefferson Parish nonpublic school transportation caused the JPSB to

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cut local supplements for nonpublic schools. To make up for the

shortfall, the Archdiocese of New Orleans agreed to contribute

funds and thereby ensure the restoration of certain Catholic,

nonpublic schools’ transportation services to the prior year’s

level. Parents of schoolchildren at those nonpublic schools were

thereafter required to pay a supplement to offset transportation

costs. Nevertheless, the JPSB discontinued some of the nonpublic

school transportation in May 1988, because JPSB had not received

all of the necessary funds from those nonpublic schools.

In 1989, the State increased nonpublic school transportation

funding to Jefferson Parish by $278,788, for a total of $1,490,637.

The Archdiocese of New Orleans and the State decided that part of

these additional funds would be used to provide privately

contracted bus service for those students who had been eliminated

from the transportation plan. Consequently, the Jefferson Non-

Public School Transportation Corporation was formed on September

28, 1989. The stated purposes of this non-profit Corporation

included

[the provision of] transportation for the

children of parents residing in the Parish of

Jefferson who have enrolled their children in

parochial schools within the Parish of

Jefferson other than their own church parish

because of the fact that the parish in which

said parents reside does not operate a

parochial school....

Helms, 856 F.Supp. at 1149. The Corporation had members from six

nonpublic schools: St. Christopher, St. Catherine of Siena, St.

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Louis King of France, St. Agnes, St. Angela Merici, and St. Matthew

the Apostle.

On February 6, 1990, JPSB paid the Corporation $100,195 “in

lieu of transportation services previously provided by the [JPPSS]

for some of the students attending [the six Catholic schools].”

Id. The Corporation paid the funds to “privately contracted bus

drivers” who provided bus services to 368 students attending the

six schools. Id. at 1149-50. The district court specifically

found that “the funds paid to the [Corporation] were clearly spent

for transportation of nonpublic school students.” Id. at 1150.

B.

We agree with the district court that the agreement between

the JPSB and the Corporation to provide funds for the

transportation of nonpublic school children does not violate the

Establishment Clause. See Helms, 856 F.Supp. at 1150-55. The

allocation of funds to the Corporation is simply one part of a

broader, general program by which the State and Jefferson Parish

provide a secular, noninstructional service to sectarian and

nonsectarian schoolchildren alike.

The Supreme Court’s decisions in Everson and Wolman furnish

the guideposts for our discussion, although, as we make clear

below, the Jefferson Parish program we confront here falls somewhat

between the facts of those cases. In Everson, the Court approved

a New Jersey program by which the State reimbursed parents for the

cost of sending their children to and from school, whether public

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or parochial. Everson, 330 U.S. at 17. The Court analogized the

reimbursement to situations “where the state requires a local

transit company to provide reduced fares to school children

including those attending parochial schools,” or where “state-paid

policemen ... protect children going to and from church schools.”

Id. Such services, in the Court’s view, were “separate and ...

indisputably marked off from the [schools’] religious function.”

Id. at 18. Wolman restated the holding in Everson in the following

way:

The critical factors ... are that the school

has no control over the expenditure of the

funds and the effect of the expenditure is

unrelated to the content of the education

provided. Thus, the bus fare program in

Everson passed constitutional muster because

the school did not determine how often the

pupil traveled between home and school --

every child must make one round trip every day

-- and because the travel was unrelated to any

aspect of the curriculum.

Wolman, 433 U.S. at 253.

Wolman, by contrast, invalidated an Ohio statute which

authorized the State to expend funds to provide “field trip

transportation” to nonpublic school students on an equal basis with

public school students. The Court pointed out that in Wolman,

unlike Everson, the nonpublic school controlled “the timing of the

trips and, within a certain range, their frequency and

destinations.” Id. Additionally, the Court believed that “field

trips,” given the inevitable discussion accompanying them and the

parochial schoolteacher’s input and guidance, “are an integral part

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of the educational experience.” Id. at 253-54.

The Jefferson Parish program falls somewhere in the gray area

between Everson and Wolman. Certainly the content of the aid

provided through the JPSB-Corporation agreement is for our purposes

identical to the aid provided in Everson: getting a child to and

from school once a day. There is no evidence, as the district

court found, that the funds were used for anything other than such

transportation. See Helms, 856 F.Supp. at 1150. The means by

which the aid was administered, however, bear a vague resemblance

to Wolman. The funds are paid, not as reimbursements to parents,

but instead as a subsidy for transportation costs to a private,

non-profit corporation, whose “members” were parents of children

attending the six schools at issue.20 This system is at least

superficially similar to the direct payments, over which the

nonpublic schools had virtually unfettered discretion, condemned in

Wolman. See Wolman, 433 U.S. at 253-54.

Although again we must perform a balancing act between

permissible and impermissible aid to sectarian institutions, we

find that the arrangement at issue here bears more of a resemblance

to the program upheld in Everson than to the one struck down in

Wolman. The primary consideration guiding us is the character of

20

In rejecting the Plaintiffs’ Motion for Reconsideration of

Judge Heebe’s ruling on the transportation issue, Judge Livaudais

found that the Corporation was “non-religious and was set up

exclusively to hire bus drivers to drive these children to and from

school....”

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the aid provided. Here, as in Everson, the payments are earmarked

for a wholly secular function lacking in any educational content

whatsoever -- the transportation of schoolchildren to and from

school. There is no danger, as there was in Wolman, that parochial

teachers will subvert the state-funded process to further their own

sectarian aims; indeed, the religious teachers have no role in this

kind of transportation, and, as the district court assured us,

“[t]here has been no evidence presented that JPPSS bus drivers

might impart religious beliefs to their bus passengers.” Helms,

856 F.Supp. at 1151.

Although the means through which the aid gets to religious

institutions -- the Corporation -- did give us pause initially, in

the end we believe that the Corporation serves merely an

administrative function in the aid process. The Corporation acts

as a conduit through which the funds pass and is administered by

the parents of schoolchildren. The Supreme Court has already

approved direct reimbursements to parents in Everson; it would

exalt form over substance to draw a constitutional distinction

where the funds are paid, not to the parents themselves, but to a

private corporation with the same parents as members. Furthermore,

we have seen no evidence indicating that the Corporation exercises

unfettered discretion over the funds. Instead, as both district

judges who considered the issue concluded, the Corporation is

dedicated exclusively to facilitating secular transportation

services for its members’ students and has no religious objectives

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at all. Finally, no evidence indicates that the funds were used

for anything but the permissible purpose of providing

transportation services to nonpublic schoolchildren. See Helms,

856 F.Supp. at 1150.

We also reject Plaintiffs’ argument that the transportation

payments violate the neutrality requirements of the Establishment

Clause because the Corporation is dedicated to serving only six

nonpublic schools. This contention overlooks the fact that the

Corporation focused on the six schools at issue because they had

been excluded from local funding due to cuts in transportation

funds from the state. Thus, the Corporation exists, not to

privilege these six parochial schools, but instead to bring them to

a level of services equal to other schools. Finally, the

eligibility requirements for transportation aid are generally

applicable to all students, both public and nonpublic. Any

differences among the level of services provided from school to

school (e.g., frequency and pattern of busing routes, local

supplement levels, etc.) arise from administrative concerns that

have nothing to do with religion. Indeed, as the district court,

found, although the State strives to make transportation services

available equitably to both public and nonpublic students, “it

appears ... that greater benefits are provided to the public school

students.” Helms, 856 F.Supp. at 1152. We cannot understand how

the Plaintiffs then complain that the transportation payment scheme

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operates to the unfair benefit of the six Catholic schools at issue

here.

Based on Everson and Wolman, we AFFIRM the district court’s

determination that the transportation payments to the Corporation,

by virtue of LA.REV.STAT.ANN. § 17:158, are constitutional.

V.

In sum, then,(1) we REVERSE the district court’s decision in

favor of Plaintiffs and RENDER judgment in favor of Defendants

declaring the Louisiana special education program, LA.REV.STAT.ANN.

§ 17:1941-1956, constitutional as applied in Jefferson Parish; (2)

we REVERSE the district court’s grant of summary judgment in favor

of Defendants and RENDER judgment in favor of Plaintiffs declaring

that the Federal instructional materials program, 20 U.S.C. §§

7301-7373, and its Louisiana counterpart, LA.REV.STAT.ANN. §§

17:351-52 are unconstitutional as applied in Jefferson Parish;

and, (3) we AFFIRM the district court’s decision in favor of

Defendants that the transportation payments to the Jefferson Non-

Public School Transportation Corporation, by virtue of

LA.REV.STAT.ANN. § 17:158, are constitutional.

AFFIRMED in part; REVERSED in part and JUDGMENT RENDERED.

74