# Helms Ex Rel. Helms v. Cody

> District Court, E.D. Louisiana · June 10, 1994 · 856 F. Supp. 1102

URL: https://www.frixlaw.com/law-library/cases/1680805

## Case

- **Full name:** Mary L. HELMS, Individually and as Next Friend of Amy T. Helms, a Minor; Et Al., Plaintiffs, v. Wilmer CODY, as Louisiana State Superintendent of Instruction; Et Al., Defendants, Guy Mitchell, Et Al., Intervenors
- **Court:** District Court, E.D. Louisiana
- **Decided:** June 10, 1994
- **Citations:** 856 F. Supp. 1102; 1994 U.S. Dist. LEXIS 8206; 1994 WL 314265
- **Precedential status:** Published
- **Opinion:** Opinion by Heebe
- **Judges:** Heebe
- **Cited by:** 4 later opinions in the Frix Law Library

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## Opinion text

OPINION
HEEBE, District Judge.
The plaintiffs in this action are Mary L. Helms, individually and on behalf of her minor daughter, Amy T. Helms; Marie Louise Schneider; and Esperanza Tizol.' They reside within the Jefferson Parish School District and within Jefferson Parish, Louisiana.
The defendants currently remaining in this case are:
a) Dr. Raymond K. Arveson as the Louisiana Superintendent of Public Instruction
1
;
b) Mary Landrieu as Louisiana State Treasurer;
c) Richard W. Riley
2
as Secretary of the United States Department of Education;
d) United States Department of Education;
e) Louisiana State Board of Elementary and Secondary Education (BESE);
f) Jefferson Parish School Board (JPSB);
g) Barbara Turner
3
as Superintendent of the Jefferson Parish Public School System;
h) Martin Marino
4
as President and member of the Jefferson Parish School Board;
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i) Polly Thomas
5
as Vice President and member of the Jefferson Parish School Board;
j) Robert Wolfe, Barry Bordelon, O.H. Guidry, Laurie Rolling, Cedric Floyd, Sharon D. Bitzer, and Michael Hurley as members of the Jefferson Parish School Board
6
; and
k) the Special Educational Services Corporation.
The intervenors in this action are Guy and Jan Mitchell; Earline Castillon; and Edward and JacLynn Welsch.
Plaintiffs have challenged federal statutes, as well as Louisiana state programs, on their face and/or as administered and applied in Jefferson Parish, on the grounds that they violate the Establishment Clause of the First Amendment and the Fifth and Fourteenth Amendments. Presently before the Court are the following claims:
1. That the special education programs providing special education services through the use of public school employees on the premises of sectarian schools in Jefferson Parish, Louisiana are unconstitutional.
2. That Louisiana statutory provisions authorizing the funding of special education programs on the premises of pervasively sectarian institutions are unconstitutional on their face, and as implemented and applied.
3. That Louisiana’s legislatively-adopted program for the provision of reimbursement to nonpublic schools for administrative expenses is unconstitutional.
4. That the transportation program which provides for separate transportation of public and nonpublic school children in Jefferson Parish is unconstitutional in its application.
5. That the transportation program results in excessive entanglement.
6. That the state statute authorizing a flat-rate reimbursement to parents transporting their children to school is unconstitutional on its face and as previously administered and applied.
7. That the capital expense provision of Chapter 1 of the Education Consolidation and Improvement Act of 1981 is unconstitutional on its face.
This matter came on for trial on a previous date. This Court, having heard the testimony at trial and having considered the record, the evidence, the transcript, the applicable law, and the excellent memoranda submitted by the parties, now makes the following findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a), as hereafter set forth.
FINDINGS OF FACT
1. Plaintiff, Mary L. Helms, is the mother of Amy T. Helms who at the time of trial was an eleventh grade student at Bonnabel High School, which is located in Jefferson Parish and is operated by the Jefferson Parish Public School System.
2. Plaintiff, Esperanza Tizol, is the mother of Herman Tizol and Alia Tizol who at the time of trial were enrolled at Congetta Trippe Janet Elementary School, which is located in Jefferson Parish and is operated by the Jefferson Parish Public School System.
3. Plaintiff, Marie Louise Schneider, has no children enrolled in the Jefferson Parish Public School System. She represents Chapter 1 parents in Jefferson Parish as the “parental advisory counsel parishwide chairperson.” Doc. 260, p. 7.
4. Each of the plaintiffs is a United States citizen and citizen of the State of Louisiana, and pays either excise taxes or income taxes to the United States. Doe. 219, p. 3.
5. This Court has already found that each of the plaintiffs pays sales and other taxes to the State of Louisiana and each plaintiff pays local sales tax which ultimately benefits the Jefferson Parish Public School System. Doc. 219, p. 3. Therefore, this Court finds that the plaintiffs have standing to challenge the various state programs at issue in this case.
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6. Plaintiffs also have standing to challenge the facial validity of the “capital expenditures” provision of Chapter 1 of the Elementary and Secondary Education Act of 1965, as amended, 20 U.S.C. § 2727 (d). Doc. 219.
I. SPECIAL EDUCATION
A.
WHETHER THE SPECIAL EDUCATION PROGRAMS PROVIDING SPECIAL EDUCATION SERVICES THROUGH THE USE OF PUBLIC SCHOOL EMPLOYEES ON THE PREMISES OF SECTARIAN SCHOOLS IN LOUISIANA INCLUDING JEFFERSON PARISH, ARE UNCONSTITUTIONAL.
B.
WHETHER LOUISIANA STATUTORY PROVISIONS AUTHORIZING THE FUNDING OF SPECIAL EDUCATION PROGRAMS ON THE PREMISES OF PERVASIVELY SECTARIAN INSTITUTIONS ARE UNCONSTITUTIONAL ON THEIR FACE, AS WELL AS IMPLEMENTED AND APPLIED.
FINDINGS OF FACT
1. Plaintiffs claim that the state’s special education program, that being La.Rev.Stat. §§ 17:1941-1956, as it is being administered and applied, is unconstitutional under the First and Fourteenth Amendments to the United States Constitution.
2. Plaintiffs also make a facial challenge to the special education statutes, contending that they authorize the expenditure of tax-derived funds for the payment of the salaries and expenses of teachers and staff at pervasively sectarian institutions where the employees of those institutions, other than public school employees, provide special education services.
3. La.Rev.Stat. § 17:1941 provides that it is the duty of the 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 (West 1982).
4. The stated legislative purpose of the Louisiana special education statute is:
to provide for a flexible and uniform system of special education for all children requiring such programs and related services; to provide a flexible and nondiscriminatory system for identifying and evaluating the individual needs of the child; to determine the appropriateness of the special education program; to conduct a periodic evaluation of the program and its benefit to the child; 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, free publicly supported education; and to provide such special education programs herein described and related services in the least restrictive alternative education settings.
La.Rev.Stat.Ann. § 17:1941.
5. La.Rev.Stat. § 17:1943(2) defines an exceptional child as 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 related services.” La. Rev.Stat.Ann. § 17:1943(2) (West Supp.1994).
6. In Louisiana, special education is “any program of instruction within the preschool, elementary, and 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.1994).
7. Section 17:1944(A)(1) provides that the special educational services are to “be administered at the state level by the Department of Education, with the approval of its governing authority, and on the city or parish level by parish or city school boards.” La.Rev. StatAnn. § 17:1944(A)(1) (West Supp.1994). Section 17:1944(A)(2) provides that the office of special education services within the Department of Education “shall provide general supervision and monitoring of all education programs for exceptional children conducted within the state, including all such education
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programs administered by other state or local agencies.” La.Rev.Stat.Ann. § 17:1944(A)(2) (West Supp.1994).
8. La.Rev.Stat. § 17:1944(B)(13) authorizes the Department of Education “[t]o conduct or contract with any federal, state, city, parish, or
private agency,
research and development projects designed to improve the quality of special education programs or to increase the efficiency of such programs.” La.Rev.Stat.Ann. § 17:1944(B)(13) (West 1982).
9. Under La.Rev.Stat. § 17:1946(A), the Department of Education must approve alternative education settings in which special education programs are to be conducted, including nonpublic day school facilities and private residential schools. La.Rev.Stat.Ann. § 17:1946(A) (West Supp.1994).
10. La.Rev.Stat. § 17:1946(0) and (D) allows a public educational agency to place an exceptional child in an approved special nonpublic day school program as an alternative education setting. La.Rev.Stat.Ann. § 17:1946(0), (D) (West 1982). Subsection (C) states that any exceptional child,
who has been placed prior to or during the 1978-1979 school year by a public education agency in an approved special nonpublic day school as an alternative education setting because public facilities and programs were not available and who has received special education and related services in an approved special nonpublic day school during the 1978-1979 school year, shall not be transferred by the public education agency without formal parental approval.
Id.
11. The parties stipulated concerning special education tri-party agreements entered into between the Louisiana State Department of Education and certain approved nonpublic schools pursuant to La.Rev.Stat. § 17:1946(0). Ex. S-35. The stipulation reads:
The Louisiana State Department of Education, by and on behalf of certain local education agencies, has entered into triparty agreements with some approved nonpublic schools under the authority of LA.REV.STAT.ANN. 17:1946(0) for the provision of special educational services and where necessary related services as specified in an Individualized Education Program for certain handicapped children within the jurisdiction of the local education agency. Plaintiffs’ Exhibit No. 239, annexed hereto as Attachment A, is an example of such a tri-party agreement between De La Salle Special Education School, and the Louisiana State Department of Education by and on behalf of the Jefferson Parish School Board for the provision of special education services to one handicapped child placed by a public agency prior to the 1978-79 school year.
Each of said children listed in those triparty agreements executed pursuant to LA.REV.STAT.ANN. 17:1946(c) has been identified as a handicapped child who is between the ages of three (3) and twenty-one (21), and who was placed by a public agency in an approved nonpublic school prior to the 1978-79 school year because the local educational agency did not provide direct services to said child.
Ex. S-35.
12. The stipulation applies to a limited number of identified exceptional children, between the ages of 3 and 21, each of whom was placed in an approved nonpublic school prior to the 1978-79 school year because “the local educational agency did not provide direct services to said child.”
Id.
13. Under La.Rev.Stat. § 17:1949, a parish or city school board or special school district is authorized to enter into a purchase of services agreement with any nonpublic school agency or institution to provide free appropriate education to exceptional children in need of special education and related services. In purchasing such services, the local school board is “authorized to negotiate a contract for special education and related services and to pay tuition or other costs not to exceed the average gross costs per educable child in the school district plus the pro rata part of the state allotment” provided in La.Rev.Stat.Ann. § 17:1956 for serving students requiring special education and related services. La.Rev.Stat.Ann. § 17:1949 (West 1982).
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14. The Department of Education may contract with nonpublic agencies to provide special education and related services subject to the conditions and limitations of the statute. La.Rev.Stat.Ann. § 17:1950 (West 1982).
15. The Jefferson Parish School Board (JPSB) is a political subdivision of the State of Louisiana. It is vested with the authority to direct the operations of the Jefferson Parish Public School System (JPPSS), subject to the rules and regulations promulgated by the Louisiana State Board of Elementary and Secondary Education (BESE).
16. Special Educational Services Corporation (SESC) was established as a Louisiana nonprofit corporation in 1981. It was organized for the purpose of “assisting] students who are having academic and behavior problems to cope in the school environment.” Doc. 250, p. 163.
17. SESC was originally funded with $1.65 million by the 1982 Louisiana legislature. Ex. P-253.
18. Since at least 1987, SESC has not received any funds from the State of Louisiana or any other governmental body. Doc. 250, p. 164.
19. At the time of trial, the sole employee of SESC was the executive director, Jan Janz, who volunteered her time to the corporation. Her paid position was with the Office of Special Education for the Archdiocese of New Orleans.
Id.
at pp. 76, 78, 105, 134.
20. The members of SESC are “[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-Thibodaux, and Lake Charles, and a representative to be appointed by the Bishop of the Diocese of Alexandria-Shreveport respectively.” John C. Rice, Jr. Dep. at 43-44. The corporate members appoint the Board of Trustees.
Id.
at 45.
21. The Court finds that SESC is a religiously-affiliated corporation.
22. In Jefferson Parish, special education services have been provided by public school teachers to nonpublic school students on the premises of schools operated under the authority of the Archdiocese of New Orleans under a contract entered into between the JPSB and SESC. Ex. S-9.
23. JPPSS first assigned special education teachers to instruct students at nonpublic schools during the 1975-76 school year. Ex. P-253. Four teachers and four aides were placed. The reason for this placement was “the lack of classroom space in the public school system.”
Id.
24. By the 1982-83 school year, the request had increased to 105 special education teachers and 71 aides for the nonpublie schools. The estimated cost to the Jefferson Parish Public School System was $504,871.00. Ex. P-253, p. 12.
25. In the Fall of 1982, Barbara Turner Windhorst was the Director of Special Education for the Jefferson Parish Public School System and Dr. Carolyn Weddle was the Assistant Superintendent for Instructional Programs for the school system. Dr. David DeRuzzo, the Superintendent of Schools for the JPPSS, directed Dr. Weddle and ultimately Ms. Windhorst to research the issue of special education teachers assigned by the JPPSS to nonpublic schools and to provide him with information for a report to the school board. Doc. 255, p. 96.
26. In his report to the school board, Dr. DeRuzzo noted:
The continued dramatic escalation of requests for special education teachers and aides by the approved non-public schools emphasizes three issues:
a. the possible loss of student population to the parochial schools, especially at the high school level where parochial secondary schools who have never offered special education classes are now proposing them.
b. will the SESC continue its source of funding and its willingness to contribute to the cost of teachers and aides?
c. parents of public school special education students complain that our most experienced and best educated teachers request voluntary transfer to parochial and private settings leaving the public school special education students with some
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teachers who are not certified in special education.
Ex. P-253, p. 11.
27. The Jefferson Parish School Board at its September 15, 1982 meeting directed the Superintendent
to develop a cooperative plan between the Jefferson Parish Public School System and the approved non-public schools to accomplish the following:
1. An approach to controlling the growth in the number of teachers placed in non-public schools
2. A more equitable method of placing qualified special education teachers (See Exhibit III)
Ex. P-253, p. 1.
28. On October 5,1982, Dr. DeRuzzo sent a letter to Mr. Howard Jenkins, Superintendent of Schools for the Archdiocese of New Orleans, concerning the development of policy and procedures for the placement of special education classes and teachers in nonpublic schools. Ex. P-253, pp. 20-21. A committee comprised of staff from the Archdiocese and staff from the Jefferson Parish Public School System was formed to develop procedures for placement of special education classes and teachers in nonpublic schools. The goals/guidelines to be achieved were as follows:
a. Planned approach to capping and reducing Special Education classes authorized to non-public schools; and
b. An equitable plan to place special education certified teachers in the public schools before placement in non-public schools is finalized each year and during the adjust period of the school year.
Id.
at 21.
29. The recommendations on staffing and funding emanating from negotiations between JPPSS and the Archdiocese of New Orleans, as well as the contractual agreement between JPPSS and the Jefferson Federation of Teachers, anticipated the following results:
a. That the present level of funding for teachers and aides currently working in the Archdiocesan schools will be maintained. (This excludes those teachers covered under the contractual agreement for 1982-83 with Special Educational Services Corporation.)
b. Should Special Educational Services Corporation not renew its contract as implemented during the 1982-83 session, the Archdiocese will be responsible for assuming all local costs for those teachers and aides.
c. 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.
d. That capping of the Jefferson Parish Public School System costs at the 1982-83 level will not affect any new special education classes the Archdiocese might establish; the total local costs for such classes, however, will be the responsibility of the individual schools.
e. That new classes will be allowed to be established in the Archdiocesan schools.
f. That there will be no reduction in the number so [sic] teachers over a period of time.
Ex. P-253, p. 3.
30. The report (Ex. P-253) was submitted to the Jefferson Parish School Board, and the school board approved it. Doc. 255, pp. 98-99.
31. The contract entered into between the Jefferson Parish School Board (JPSB) and Special Education Services Corporation (SESC) for the 1989-90 school year provided that the JPSB shall hire up to 14 special education teachers and up to 5 teacher assistants. Ex. S-9. These teachers and assistants were assigned to the following nonpublic schools: Chinchuba Institute for the Deaf, Immaculate Conception High School, Archbishop Rummell High School, St. Agnes Elementary School, St. Angela Elementary School, St. Benilde Elementary School, St. Christopher Elementary School, St. Francis
*1110
Xavier Elementary School, and St. Mary Magdalen Elementary School.
Id.
32. Under the contract, the classrooms were to be provided by SESC at no cost to the JPSB. Ex. S-9. The special education programs conducted in those classrooms were to be supervised by both the JPSB and the administrator of SESC.
Id.
33. 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. Ex. S-9. The cost for teachers and teacher assistants for the fiscal year 1989-90 was estimated at approximately $149,583.00.
Id.
34. State funds appropriated by the Louisiana Legislature for the provision of special education and related services for exceptional children in Louisiana are distributed to the Jefferson Parish Public School System 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.
Doc. 277, p. 90.
35. The public school system receives federal monies based on the “child count” of special education students enrolled at both public and nonpublie schools. Doc. 254, p. 136.
36. The salary of a special education teacher consists of 1) money from the minimum foundation program which is money that comes to Jefferson Parish from the State of Louisiana; and 2) the local salary supplement. Doc. 255, p. 78. In the public schools, the local salary supplement is paid by the Jefferson Parish School Board. In the nonpublic schools, the local salary supplement is paid by SESC.
Id.
SESC has agreed “to assume full responsibility for any portion of a teacher’s or teacher assistant’s salary and benefits not reimbursable by the State of Louisiana and/or the United States Government.” Ex. S-9.
37. The minimum foundation money received from the State and the local salary supplement received from SESC are placed into the general fund of the Jefferson Parish Public School System. The salary of the special education teacher at the nonpublic school is then paid out of this general fund. Doc. 255, p. 100.
38. Since Ms. Janz became executive director of SESC in 1987, SESC has been funded by contributions from the nonpublic schools that are receiving special education services on their premises. Each school contributes a local supplement for the special education teachers to SESC. SESC has a contract with each of the participating nonpublie schools called a donor agreement which sets forth the amount of money that the nonpublic school pays to SESC. Doc. 250, pp. 96-98.
39. The nine schools listed in the contract between SESC and JPSB all make contributions to SESC. The amount contributed is “an approximation of the local supplement for the teachers ...,” that is, the difference between what the state pays for the teachers’ salaries and “what Jefferson Parish school district would have to come up with in order to be able to pay the total salary for the teacher.”
Id.
at pp. 96-97, 99-100.
40. The JPPSS special education teachers serving students in both public and nonpublic schools are all subject to the provisions of the same Collective Bargaining Agreement. Ex. S-6.
41. Article 18(G) of the 1989-90 “Agreement between the Jefferson Federation of Teachers and the Jefferson Parish School Board” specifically addressed the issue of the placement of special education teachers at nonpublic school sites. Ex. S-6, p. 20. Section G(2) states that “[pjositions in special education classes which are provided in non public 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 School System have been filled by certified special education teachers.”
Id.
(Emphasis added).
42. Section G(5) is an exception to the requirement set forth in Section G(2). This section states that “[t]he Board shall not involuntarily transfer special education teachers assigned to non-public schools prior
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to the 1983-84 school session unless pupil-teacher ratio changes reduce teacher needs.”
Id.
43. Ms. Windhorst testified that this provision “means that those teachers who were assigned to nonpublic schools prior to the ’83-84 school year whether certified or not would remain in those settings and would not be involuntarily transferred----” Doc. 255, p. 47.
44. The Court finds that Section G(5) of Article 18, which is in the current collective bargaining agreement, was originally placed there “in order to effect a compromise agreement involving” public school teachers providing special education services at non-public schools.
Id.
at p. 50.
45. Twelve of the fourteen special education teachers currently employed by JPPSS and providing services at the nonpublic schools are there by reason of Section G(5) of the collective bargaining agreement (the grandfather provision).
Id.
at p. 53.
46. The Court finds that there are positions to be filled for special education teachers in the Jefferson Parish public schools. These vacancies are for teachers certified in the mild-moderate category which is the same category held by the twelve public school teachers grandfathered into teaching at the non-public schools.
Id.
at pp. 55-57.
47. Louisiana law requires that each child must receive special education in the “least restrictive environment” appropriate for the child’s individual educational needs. La.Rev. StatAnn. § 17:1946(A)(2) (West Supp.1994).
48. The special education policies and procedures of the JPPSS are set forth in “Jefferson Parish Public School System Special Education Policies, Procedures, Practices (1989)” (hereinafter “JPPSS Special Education Handbook”). Ex. S-15.
49. The JPPSS Special Education Handbook explains that the least restrictive environment means that “[t]o the maximum extent appropriate, exceptional children, including children in public or private institutions or other care facilities, are educated with children who are not exceptional.” Ex. S-15, p. 109.
50. In the special education field, a regular classroom with supplemental aids — such as speech services or visual aids — is considered the least restrictive environment for exceptional children. Doc. 250, pp. 150-51. A “resource room” program, in which a child spends 180 minutes or less of instructional time per day in the “resource room,” with the remainder spent in a regular classroom, is the next least restrictive environment.
Id.
at p. 151. A “self-contained” special class is the next least restrictive environment. The student spends more than 180 minutes of instructional time in the “self-contained” special class and spends the remainder in the regular classroom. At a minimum, a student in a “self-contained” program must have homeroom, lunch, and recess with the non-handicapped students.
Id.
at pp. 151, 173-74. A “special school” program, in which the entire school day is spent in special education, at a school attended only by other exceptional children, is more restrictive still. Ms. Janz testified that a child in this setting risks learning inappropriate behaviors and is not as challenged because of the lack of interaction with his “regular peers.” Doc. 250, p. 151. More restrictive is a “residential special school.” Ex. S-5, p. 40. A “hospital/homebound” program is for students who cannot function in any of the more socially interactive settings. Doc. 250, p. 152.
51. “The Least Restrictive Environment rules may not be waived by any party, including the parent(s).” Ex. S-5, p. 41.
52. The Louisiana Department of Education has determined that the school system should ensure that the exceptional child is placed “in the school which the child would attend if not exceptional, unless the IEP/Placement document requires some other arrangement.” Ex. S-5, p. 39.
53. Jefferson Parish special education programs are provided to two distinct types of exceptional children. The first type are those exceptional children who have been placed by a public agency in a nonpublic residential facility. These children have been determined to require educational placement in a special day school.
54. The second group of exceptional children are voluntarily enrolled in an approved
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nonpublic school. They require educational placement in either a special education resource room or a special education self-contained classroom on a regular school campus.
55. The Chinchuba Institute for the Deaf is a nonpublic, independent special school which is
not
affiliated with a religious institution and where all of the students are deaf or hearing-impaired. Ex. S — 9; Doc. 255, p. 35; Doc. 250, pp. 103, 163. Chinchuba is a “special nonpublic day school,” as that term is used in La.Rev.Stat. § 17:1946(C)-(E) (West 1982) & (West Supp.1994).
56. Immaculate Conception High School, Archbishop Rummell 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 are affiliated with the Catholic Church. None of these schools is a “special nonpublic day school” as that term is used in La.Rev.Stat. § 17:1946(C)-(E).
57. In addition to the annual contract entered into between Jefferson Parish School Board and SESC for services at Chinchuba Institute for the Deaf and the eight parochial schools, an annual contract for special education teachers and assistants is also entered into between JPSB and Hope Haven/Madonna Manor School. Ex. S-10. The contract is signed by the Executive Director of Associated Catholic Charities, the Administrator of Hope Haven/Madonna Manor, the Superintendent of the Jefferson Parish School Board, and the Director of the Special Education Department, Jefferson Parish School Board.
Id.
58. Hope Haven/Madonna Manor is a special day school for students exhibiting behavior disorders to the degree of severe emotional disturbances. Doc. 255, p. 24. All of the students are handicapped.
Id.
These students cannot be assured a least restrictive environment on a regular school campus.
Id.
59. The agreement entered into for the 1989-90 school year provided 15 special education teachers and 15 special education assistants at Hope Haven/Madonna Manor. Ex. S-10.
60. The students at Hope Haven/Madonna Manor residential facility are placed there by the State of Louisiana, the Office of Health and Human Development and/or by the court system. Doc. 255, p. 22; Doc. 277, pp. 90-91.
61. The teachers are paid from “minimum foundation monies” and the Jefferson Parish Public School System contributes the local funding. Doc. 254, pp. 149-50.
62. The estimated cost for the 30 teachers for the 1989-90 school year was $198,-121.00. It was agreed “that there is no cost incurred by Hope Haven/Madonna Manor (Associated Catholic Charities) for services stated in the agreement.” Ex. S-10. The Jefferson Parish School Board was to be reimbursed by the State by way of the “minimum foundation formula.”
Id.
It was further noted that “the cost to the Jefferson Parish Public School System would be greater if it assumed direct responsibility for the special education needs of children handled by HOPE HAVEN/MADONNA MANOR.”
Id.
63. During the 1989-90 school year, there were approximately 103 students attending Hope Haven/Madonna Manor School. Doc. 257, p. 9.
64. No classes in religion or theology are offered at the Hope Haven/Madonna Manor school.
Id.
at p. 13.
65. There are no religious symbols in Hope Haven/Madonna Manor.
Id.
66. A Catholic church is located near the school.
Id.
It is used for school assemblies.
67. The principal of Hope Haven/Madonna Manor is a lay person, Barbara Garland. She is employed by Associated Catholic Charities.
Id.
at p. 4. Ms. Garland reports to the administrator of Hope Haven/Madonna Manor, Robert Guaseo.
68. Two Catholic sisters teach at Hope Haven/Madonna Manor.
69. All of the teachers at Hope Haven/Madonna Manor are Jefferson Parish Public School System teachers. Doc. 255, pp. 23-24.
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70. Neither Hope Haven/Madonna Manor nor Chinehuba Institute for the Deaf are under the supervision of Mr. Howard J. Jenkins, the Superintendent of the Archdiocese of New Orleans School System. Doc. 250, pp. 58-59.
71. State regulations governing special education programs are contained in Louisiana Department of Education Bulletin 1706, “Regulations for Implementation of the Exceptional Children’s Act” (Revised 1983). Ex. S-5.
72. Additional state policies and procedures related to special education are described in Louisiana Department of Education Bulletins 741, “Louisiana Handbook for School Administrators” (public and private) (Revised 1983); 1508, “Pupil Appraisal Handbook” (Revised 1983); and 1530, “Louisiana’s IEP Handbook” (Revised 1989). Exs. D-86, S-14, and S-13.
73. The “Regulations for Implementation of the Exceptional Children’s Act” (hereinafter “State Regulations”) require that each school system and the Department of Education develop and formally enter into an interagency agreement. Ex. S-5 § 801. Since the relationship between the Department of Education and the school system is defined by the State Regulations “in regard to providing a free, appropriate public education to exceptional children,” the inter-agency agreement need not define such relationships.
Id.
§ 810. The purpose of an interagency agreement is to assure that state standards established to guarantee a free, appropriate public education for exceptional children are implemented by “approved public or nonpublic agencies not within the governance of the State Board.... ”
Id.
§ 820.
74. Interagency agreements may be entered into between a city/parish school system and either “a licensed and approved nonpublic habilitation agency” or “a licensed and approved nonpublic education and habilitation agency.” Ex. S-5 § 830.
75. An interagency agreement was entered into between the JPSB and SESC which was to be effective for one year beginning on July 1, 1989. Ex. S-12. It was signed by Dr. Russell J. Protti, Superintendent of the JPPSS; Jan Janz, Executive Director of SESC; and Barbara C. Adams, Director of the Special Education Department of the JPPSS. The stated purpose of the agreement was “to formalize the cooperation and to identify the responsibilities of the Jefferson Parish School Board and the Special Educational Services Corporation in order that Special Education Services be offered to the students enrolled at the Special Educational] Services Corporation eligible schools.”
Id.
76. The interagency agreement between JPSB and SESC does not specifically provide for monitoring to determine whether the special education teacher engages in either religious discussion or religious conduct. Ex. S-12. The contract only provides that the principal of the nonpublic school “will ensure that the policies and procedures of the Jefferson Parish School Board will be followed in all areas of cooperative effort.”
Id.
77. In the interagency agreement, the Jefferson Parish Special Education Department provides the following special education services to the nine “Special Education Services Corporation schools”:
A. Conduct inservices to include non public special education teachers, assistants, and administrators
B. Provide personnel to monitor special education programs and review I.E.P. records
C. Assure the coordinator’s attendance at I.E.P.s when requested
D. Provide staff assistance in program development and implementation
E. Provide surrogate parent training for those students in need of surrogate parents
F. Provide all necessary LANSER tracking, I.E.P. and periodic progress forms
G. Provide personnel for data entry (LANSER) and tracking of evaluations, I.E.P.S and related services
H. Provide teachers with materials and equipment through the Material Resource Center check system
I. Provide pupil appraisal personnel supplemental salaries for the tenth (10) month of employment
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J. Provide Health Services (Related, to include occupational therapy, physical therapy, audiological and hearing aid evaluations), when appropriate
K. Monitor all non public school students’ evaluations to ensure compliance with Bulletin 1508.
L. Type, copy and disseminate evaluations to non public schools and parents
M. Provide materials of instruction amounting to 26% of the FY 90 EHA-B Flow-Through Budget allocated to voluntarily enrolled students
Ex. S-12.
78. Walter B. Gatlin, the Assistant Superintendent of Education, Division of Special Educational Services, Louisiana Department of Education, testified that the State sends state personnel to inspect the special education programs on the premises of certain nonpublic schools on a scheduled basis once every three years. Doc. 257, p. 64. “Programs throughout the school district are selected randomly by school and by students to ensure that the school district is adhering to all the policies and procedures for the education of the handicapped child.”
Id.
at 65.
79. In their inspection, the State reviews the school records of the special education students attending nonpublic schools “very thoroughly” and confers with the principal and the teachers in the nonpublic schools. Doc. 257, p. 70.
80. Principals at nonpublic schools in Jefferson Parish at which JPPSS special education teachers serve handicapped students must by contract with the Jefferson Parish School Board enforce, apply, and follow all Jefferson Parish School Board 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. Ex. S-9.
81. The teaching responsibilities of each JPPSS special education teacher are described in the Individualized Education Program (IEP) of each of the teacher’s students.
E.g.,
Doc. 250, pp. 130, 161. The IEP of each student describes the child’s entire special education curriculum. Pursuant to state regulation, “[t]he responsibility for the development of each initial IEP rests with the [public] school system’s special education supervisor.” Ex. S-5, Special Ed.Regs. § 440.D.
82. Religious instruction is not described in the IEP.
83. No church or religious officials have any authority whatsoever over the content of the IEP. Doe. 250, p. 161.
84. Special education teachers must and do teach only what is outlined in the IEP.
Id.
at pp. 130, 161.
85. The JPPSS special education teachers at the nonpublic schools do not teach religion.
Id.
at pp. 131, 168; Doc. 251, p. 63; Doc. 252, p. 27.
86. The special education classrooms within the nonpublic schools are used only for special education instruction. Doc. 250, pp. 86-87, 122-23, 150-51.
87. JPPSS special education teachers at the eight Catholic schools are not required to attend any religious services. Doc. 251, pp. 63, 65; Doc. 252, pp. 26-27; Doc. 253, pp. 38, 87-88; Doc. 254, pp. 65-66.
88. JPPSS special education teachers provide grades (in addition to progress reports) on nonpublic school report cards. “[G]rading is based on the student’s progression through a continuum of skills, with grades reflecting the student’s effort rather than a specific amount or rate of progress.” Ex. S-15, p. 25.
89. 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. Ex. S-6, Art. 31; Doc. 255, p. 70.
90. Pursuant to the Collective Bargaining Agreement, JPPSS special education teachers may also be required to attend faculty meetings no more frequently than once per month, for one hour. Ex. S-6, Art. 26; Doc. 255, pp. 69-70.
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91. In the contract between the JPSB and SESC, it is stated that “[t]eacher evaluation in the non-public schools falls under the auspices of the Jefferson Parish Public School System; therefore, the non-public schools must follow all policies and procedures of the Jefferson Parish Public School System governing teacher evaluation.” Ex. S-9.
92. The contract between the JPSB and SESC also stipulates that in the nonpublic schools, principals and special education teachers shall participate in evaluation and special education policies and procedures. Ex. S-9.
93. The principal at the nonpublic school completes the JPPSS evaluation form for the JPPSS special education teacher assigned to that school. Doe. 251, pp. 35, 83-85, 90; Doc. 255, pp. 59-61.
94. The special education teachers teach throughout the day in self contained or resource classrooms within each Catholic school’s facility. Doe. 254, pp. 23-24, 62.
95. In all schools where it provides special education services, JPPSS requires that classrooms for learning disabled students “be located in the center of the school” because a “central location makes it easier for students to get to their classroom[,] reduces the time they are in transit in the halls [and] allow[s] [the] students to be mainstreamed as needed.” Ex. S-15, p. 28.
96. In most nonpublie schools in Jefferson Parish, special education classrooms are located in the main school building or on the main school campus. Doc. 250, pp. 86, 157-159; Doc. 251, pp. 9, 73-74; Doe. 253, pp. 9-10; Doc. 254, p. 60; Doc. 274, p. 38. The special education classroom is located in a portable unit at St. Christopher’s Elementary School. Doc. 250, p. 159.
97. In the nonpublic schools in Jefferson Parish, there is no sign or other special designation indicating that the special education classroom or area used is a public school classroom or area.
Id.
at p. 126.
98. The parents of the special education students are informed that the special education teachers are employed by the Jefferson Parish School Board at the yearly IEP meeting.
Id.
99. The Director of Special Education for the Jefferson Parish Public School System, Barbara C. Adams, testified that the school system is “not establishing new classes for providing teachers” at nonpublic school sites, but has continued “to provide teachers to those classes who have been in existence and by attrition to gradually phase that component out____” Doe. 254, p. 99. She admitted that the school system is not increasing on-site special education services at other nonpublic schools, and had decreased the number of participating schools since she has been special education director.
Id.
at p. 100.
100. Ms. Adams agreed that one of the reasons why the school system was not increasing the number of nonpublic schools offering special education services was because the JPPSS was now able to offer those services at public school sites.
Id.
at p. 101.
101. Ms. Adams also testified that under the current policy for the Jefferson Parish Public School System, a nonpublic school student cannot receive special education services at a public school site. Nonpublic school students can only receive “related services,” such as speech therapy, at a public school site.
Id.
at pp. 125-26.
102. Louisiana’s IEP Handbook, prepared by the Louisiana Department of Education, states:
The public school system is not required to serve voluntarily enrolled students in nonpublie schools. Parents should be informed that in choosing not to accept the available free, appropriate public education, their rights and those of the student to services, due process, and procedural safeguards are limited.
Ex. S-13, p. 52.
103. At the time of trial, intervenor, JacLynn Welsch, had a son, Christopher, at St. Angela Merici Catholic School located within Jefferson Parish. Welsch Dep., p. 10. She was employed at St. Angela as a playground monitor and as a substitute teacher.
Id.
at 32-34. She also performed volunteer work in the school library.
Id.
at 35. In 1990, she
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volunteered to assist Jean Douglass, a Jefferson Parish special education teacher who teaches at St. Angela Merici.
Id.
at 36.
104. Intervenor Welsch indicated that Jean Douglass provides special education services to the upper grades in a classroom which is partially partitioned.
Id.
at 37. The classroom also serves as the special education room for another special education teacher. Ms. Welsch testified that there is a crucifix in the room.
Id.
at 38.
105. Mary L. Cerise testified that she is currently employed by the Jefferson Parish Public School System as a special education teacher at St. Angela Merici. Doc. 253, pp. 4-5, 9. Prior to her employment as a special education teacher by the Jefferson Parish Public School System, she was employed by St. Angela Merici for approximately 10 years as an elementary education teacher.
Id.
at 6.
106. Mrs. Cerise did not remember for certain whether there was a sign posted at the entrance of her classroom indicating the type of classroom, but she did not think there was any designation.
Id.
at 16. She has told her students that she is employed by the Jefferson Parish Public School System.
Id.
She stated that the parents became aware of her employment when they signed the child’s Individualized Education Program (IEP).
Id.
at 16-17.
107. Parent-teacher conferences are held in Mrs. Cerise’s classroom and are scheduled the same day the parents have parent-teacher conferences with other teachers employed by St. Angela Merici. Doc. 253, p. 18.
108. Mrs. Cerise, in testifying about her contacts with the principal of St. Angela Merici, indicated that “we see him in the morning for a cup of coffee in the lounge and during the day he often walks in and out of the classrooms.”
Id.
at 20. When asked at the trial why the principal walks into her classroom, Mrs. Cerise responded: “I suppose that’s part of his job description.”
Id.
at 21.
109. Mrs. Cerise 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 individual educational program and that [she is] carrying out the instructional objectives and trying to meet the needs of each child that is in [her] care.”
Id.
at 24.
110. No state employee has monitored Mrs. Cerise’s classroom activities.
Id.
at 25.
111. Prior to her tenure, an employee of the Jefferson Parish Public School System would regularly monitor her files and her classroom activities at the school.
Id.
However, since she has been tenured, everything that she does is written down clearly on the IEP and “sent to an IEP specialist” and thereafter returned to her stating either that everything was all right or “this or the other had to be done.”
Id.
at 25.
112. The IEP specialist, Barbara Cavallino, a JPPSS employee, did not visit St. Angela Merici during the present school year, but did visit once during the last school year.
Id.
at 26.
113. Mrs. Cerise’s contact with the IEP specialist is normally by telephone and occurs when she has an “academically or IEP related” question that she wants clarified.
Id.
at 40.
114. In addition to the IEP file stored in the classroom of the special education teacher, St. Angela Merici also maintains a separate file on each student in the administrative office of the school.
Id.
at 29. Those files contain the “cumulative reports which is a copy of the child’s work record and history, academic, behavioral, and what have you on each student as well as the file that keeps the current report cards.”
Id.
115. The parochial school, such as St. Angela Merici, issues the report card for each student in the school. In addition, the special education teacher, such as Mrs. Cerise, completes a progress report which is required by the Jefferson Parish Public School System for every special education student.
Id.
at 30.
116. Mrs. Cerise attends faculty meetings at St. Angela Merici on a monthly basis.
Id.
at 34. She attended one general workshop for all special education teachers sponsored by the Jefferson Parish Public School System at the beginning of the school year.
Id.
at 39.
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117. During the past school year and at the end of the prior school year, the JPPSS furnished materials and supplies valued at $60.00 to each special education student at St. Angela Merici.
Id.
at 49.
118. A special education student attending St. Angela Merici who pays full tuition pays an additional $500.00 fee to help “balance out the budget.” Doc. 251, p. 22.
119. A special education student attending St. Agnes pays an additional $300.00 fee. Doe. 252, p. 11. These fees are used to provide a “donation” to SESC.
Id.
at 12.
120. The Jefferson Parish Public School System does not charge tuition for any of the special educational services stated on the IEP. Doc. 254, p. 154.
121. According to the “Regulations for Implementation of the Exceptional Children’s Act” prepared by the Louisiana Department of Education, “[t]he term ‘free’ does not preclude incidental fees normally charged to nonhandicapped children or their parent(s)/guardian(s) as a part of the regular educational program.” Ex. S-5, p. 17.
122. The principal of the nonpublic school is the supervisor and “formal evaluator” of the special education teachers in that school. Doc. 254, pp. 142-44; Doc. 255, pp. 59-61.
123. The special education teacher at a nonpublic school site is considered by the personnel department of the Jefferson Parish Public School System to be part of the faculty of the nonpublic school. Doc. 255, p. 69.
124. Ms. Janz has “general supervision” of the special education program provided on the premises of the nonpublic schools by the contract between SESC and the JPPSS. Doc. 250, p. 82. She visits the special education classrooms and monitors the evaluations and tñe IEPs of the special education students that are on file.
Id.
at 85.
125. Barbara Turner Windhorst, the director of special education from June of 1982 until January of 1987, was not aware of any policy established by the Jefferson Parish Public School System which required the director of special education to observe whether religious symbols were present in the special education classrooms. Doc. 255, p. 73. She did not investigate for the presence of religious symbols, and did not recall whether any religious symbols were present in the special education classrooms.
Id.
at 73-74.
126. Ms. 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.” Doc. 250, p. 188.
127. The State of Louisiana has no policy that requires its employees to inspect the special education classrooms in nonpublic schools for religious symbols. Doc. 257, p. 94.
128. The Court finds that special education teachers employed by the Jefferson Parish School Board provide special education services on the premises of parochial schools.
129. 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 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.
130. 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 nonpublie schools.
131. The Court finds that no state, federal, or Jefferson Parish funds are paid directly to SESC or to the parochial schools. Rather, SESC contributes monies to the Jefferson Parish School Board 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.
132. The Court finds that the 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 sur
*1118
charge 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 Jefferson Parish School Board with funds primarily obtained from the State of Louisiana and supplemented by the parochial schools through SESC.
133. The Court also finds that if 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.
CONCLUSIONS OF LAW
1. The Establishment Clause of the First Amendment to the Constitution states that “Congress shall make no law respecting an establishment of religion.” U.S. Const, amend. I.
2. The Establishment Clause has been applied to state governments through the Fourteenth Amendment.
Everson v. Board of Education of Ewing Township,
330 U.S. 1, 15 , 67 S.Ct. 504, 511 , 91 L.Ed. 711 (1947).
3. An institution can be deemed “pervasively sectarian” if within that institution “ ‘religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission.’ ”
Bowen v. Kendrick,
487 U.S. 589, 610 , 108 S.Ct. 2562, 2574 , 101 L.Ed.2d 520 (1988) (quoting
Hunt v. McNair,
413 U.S. 734, 743 , 93 S.Ct. 2868, 2874 , 37 L.Ed.2d 923 (1973)).
4. The Court has already determined that the parochial schools operated under the auspices of the Archdiocese of New Orleans are pervasively sectarian. Doe. 220. Thus, the Court finds that Immaculate Conception High School, Archbishop Rummell 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 are pervasively sectarian.
5. No evidence was submitted at the trial to show that Chinehuba Institute for the Deaf is a pervasively sectarian institution. Thus the Court finds that Chinehuba Institute for the Deaf is not a pervasively sectarian institution.
6. The Court finds that Hope Haven/Madonna Manor is not a pervasively sectarian institution.
7. In 1971, the Supreme Court decided
Lemon v. Kurtzman,
403 U.S. 602, 612-13 , 91 S.Ct. 2105, 2111-12 , 29 L.Ed.2d 745 (1971), which set forth a three part test to analyze Establishment Clause cases: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion ...; finally, the statute must not foster ‘an excessive government entanglement with religion.’ ” (Citations omitted). The
Lemon
test has been much criticized by various Justices, but the decision has not yet been overruled.
See Lamb’s Chapel v. Center Moriches Union Free School Dist.,
— U.S.-,-n. 7, 113 S.Ct. 2141 , 2148 n. 7, 124 L.Ed.2d 352 (1993). The
Lamb’s Chapel
majority noted in a footnote that:
there is a proper way to inter an established decision and
Lemon ,
however frightening it might be to some, has not been overruled. This case, like
Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos,
483 U.S. 327 , 107 S.Ct. 2862 , 97 L.Ed.2d 273 (1987), presents no occasion to do so.
Id.
Thus even though
Lemon
has not been overruled, its continuing vitality appears to be in question.
8. In
Zobrest v. Catalina Foothills School District,
— U.S.-, 113 S.Ct. 2462 , 125 L.Ed.2d 1 (1993), the United States Supreme Court most recently addressed the Establishment Clause. Chief Justice Rehnquist delivered the opinion of the Court. The Supreme Court did not apply the
Lemon
test, even though the Court of Appeals had applied
Lemon. Id.
— U.S. at---, 113 S.Ct. at 2464-65. Instead the
Zobrest
Court applied the reasoning in
Mueller v. Allen,
463 U.S. 388 , 103 S.Ct. 3062 , 77 L.Ed.2d 721 (1983), and
Witters v. Washington Dep’t of
*1119
Services for Blind,
474 U.S. 481 , 106 S.Ct. 748 , 88 L.Ed.2d 846 (1986), two cases decided using the
Lemon
test.
Id.
— U.S. at-- -, 113 S.Ct. at 2466-67. The
Zobrest
Court found that the facts in that case more closely resembled
Mueller
and
Witters ,
rather than
Meek v. Pittenger,
421 U.S. 349 , 95 S.Ct. 1753 , 44 L.Ed.2d 217 (1975), and
School Dist. of Grand Rapids v. Ball,
473 U.S. 373 , 105 S.Ct. 3216 , 87 L.Ed.2d 267 (1985), which also were decided using the
Lemon
test.
Id.
— U.S. at---, 113 S.Ct. at 2468-69. In
Mueller
and
Witters ,
the Establishment Clause challenges were rejected; in
Meek
and
Ball ,
however, the state statutes were struck down as being in violation of the Establishment Clause.
Zobrest ,
— U.S. at ---, 113 S.Ct. at 2466-69.
9. The
Zobrest
Court held that the Establishment Clause does not bar a school district from furnishing a handicapped child with a sign-language interpreter at a parochial school “in order to facilitate his education.” — U.S. at-, 113 S.Ct. at 2469. The
Zobrest
Court found important the manner of funding of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1485 . First, the Court found that providing the sign-language interpreter did
not
“relieve[ ] sectarian schools of costs they otherwise would have borne in educating their students.”
Id.
— U.S. at-, 113 S.Ct. at 2468. Second, the Court found that “any attenuated financial benefit that parochial schools do ultimately receive from the IDEA is attributable to ‘the private choices of individual parents.’ ”
Id.
— U.S. at-, 113 S.Ct. at 2469. Third, parochial schools are only “incidental beneficiaries” and handicapped children are the primary beneficiaries of the IDEA.
Id.
Finally, the
Zobrest
Court found that “the function of the IDEA is hardly ‘to provide desired financial support for nonpublic, sectarian institutions.’ ”
Id.
(quoting
Witters,
474 U.S. at 488 , 106 S.Ct. at 752 ).
10. The
Zobrest
Court highlighted the fact that the program did not create a “financial incentive for students to undertake sectarian education.” — U.S. at -, 113 S.Ct. at 2467. The “only indirect economic benefit” to the parochial school was perhaps the child’s tuition, and even this benefit is based on the presumption that without the interpreter, the deaf child would have gone to another school and the parochial school would not have been able to fill that child’s spot.
Id.
— U.S. at-, 113 S.Ct. at 2468.
11. The
Zobrest
Court stated that the Supreme Court has “consistently held that government programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readily subject to an Establishment Clause challenge just because sectarian institutions may also receive an attenuated financial benefit.”
Id.
— U.S. at-, 113 S.Ct. at 2466.
12. The Court finds that the parents of the special education students in the eight parochial schools in Jefferson Parish operated by the Archdiocese of New Orleans “have chosen of their own free will” to place their children in a “pervasively sectarian environment.”
Id.
— U.S. at-, 113 S.Ct. at 2469.
13. Since the facts of the instant case also involve the presence of a public employee on the premises of a parochial school, this Court will follow the example of the
Zobrest
Court and will decide whether the instant case more closely resembles
Mueller
and
Witters
or
Meek
and
Ball .
14. The
Zobrest
Court distinguished
School Dist. of Grand Rapids v. Ball,
473 U.S. 373 , 105 S.Ct. 3216 , 87 L.Ed.2d 267 (1985), which struck down public school programs which provided public school teachers on private school premises as well as instructional equipment and material. The
Zobrest
Court found that the programs challenged in
Ball
“in effect subsidize® the religious functions of the parochial schools by taking over a substantial portion of their responsibility for teaching secular subjects.” — U.S. at -, 113 S.Ct. at 2468. On the other hand, the providing of a sign-language interpreter on the premises of a sectarian school was not found by the
Zobrest
Court to “amount to ‘an impermissible “direct subsidy” ’ of the sectarian school, because the sectarian school was “not relieved of an expense that it otherwise would have assumed in educating its students.”
Id.
— U.S. at —-, 113 S.Ct. at 2468-69.
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15. In
Meek v. Pittenger,
421 U.S. 349 , 95 S.Ct. 1753 , 44 L.Ed.2d 217 (1975), the Supreme Court found unconstitutional a Pennsylvania statute which provided “auxiliary services” to nonpublic school children with the appropriate special need. The services were provided only on the premises of the nonpublic schools by personnel employed by the public school system. “Auxiliary services” included teaching and related services for exceptional children.
Id.
at 353 , 95 S.Ct. at 1757 .
16. In
Aguilar v. Felton,
473 U.S. 402, 421 , 105 S.Ct. 3232, 3242-43 , 87 L.Ed.2d 290 (1985), Justice O’Connor noted in her thought provoking dissent that the
Meek
Court set forth the theory “that public school teachers who set foot on parochial school premises are likely to bring religion into their classes, and that the supervision necessary to prevent religious teaching would unduly entangle church and state.” The
Aguilar
majority held that “the detailed monitoring and close administrative contact” by public authorities in sectarian schools, necessary when public employees teach in sectarian schools, causes excessive entanglement between church and state.
Id.
at 412-14 , 105 S.Ct. at 3237-39.
17. In
Mueller v. Allen,
463 U.S. 388 , 103 S.Ct. 3062 , 77 L.Ed.2d 721 (1983), the Supreme Court upheld a Minnesota statute which allowed state taxpayers to deduct expenses on their state income tax incurred in providing for the education of their children. The Court pronounced that it has consistently rejected the argument that “ ‘any program which in some manner aids an institution with a religious affiliation’ violates the Establishment Clause.”
Id.
at 393 , 103 S.Ct. at 3066 . The Court emphasized the fact that this public assistance was granted to parents of children attending both public and nonpublic schools.
Id.
at 398 , 103 S.Ct. at 3068-69 . Another “material consideration” was the fact that the State transmitted the aid to the parents, rather than to the schools themselves.
Id.
at 399 , 103 S.Ct. at 3069 . The aid to the parochial schools was then made available through the individual parents who made private choices to send their children to parochial schools.
Id.
The
Mueller
Court found this to be an “attenuated financial benefit, ultimately controlled by the private choices of individual parents, that eventually flows to parochial schools____”
Id.
at 400 , 103 S.Ct. at 3070 .
18. In
Witters v. Washington Department of Services for the Blind,
474 U.S. 481, 482 , 106 S.Ct. 748, 748-49 , 88 L.Ed.2d 846 (1986), the Supreme Court found that the First Amendment did not preclude the State of Washington from providing assistance to a blind person studying at a Christian college under a state vocational rehabilitation assistance program. The Court noted that “[i]t is well settled that the Establishment Clause is not violated every time money previously in the possession of a State is conveyed to a religious institution.”
Id.
at 486 , 106 S.Ct. at 751 . However, the Court also enunciated that a “State may not grant aid to a religious school, whether cash or in kind, where the effect of the aid is ‘that of a direct subsidy to the religious school’ from the State.”
Id.
at 487 , 106 S.Ct. at 751 . The
Witters
Court then examined the aid granted to the petitioner to determine under which category it best corresponded.
Id.
19. As in
Mueller ,
the
Witters
Court emphasized to whom the aid was paid, individuals or the parochial schools themselves. The
Witters
Court noted that the financial assistance was paid directly to the student who then paid the educational institution. 474 U.S. at 487 , 106 S.Ct. at 751 . Thus, as opposed to the situation in
Ball ,
the aid “that ultimately flows to religious institutions does so only as a result of the genuinely independent and private choices of aid recipients.”
Id.
Thus “the decision to support religious education is made by the individual, not by the State.”
Id.
at 488 , 106 S.Ct. at 752 .
20. The Court finds that the situation in the instant case more closely resembles
Meek
and
Ball ,
rather than
Mueller
and
Witters .
The Jefferson Parish Public School System provides special education teachers to teach on the premises of nonpublic schools. The special education teachers at the nonpublic schools are paid by the JPPSS with minimum foundation funds provided by the State and funds provided by SESC. The Court finds that the assistance is given di
*1121
rectly to the schools themselves, and not indirectly through the parents or students.
21. The Court finds relevant the statements made by Judge Friendly as quoted in the
Ball
decision:
Under the City’s plan public school teachers are, so far as appearance is concerned, a regular adjunct of the religious school. They pace the same halls, use classrooms in the same building, teach the same students, and confer with the teachers hired by the religious schools, many of them members of religious orders. The religious school appears to the public as a joint enterprise staffed with some teachers paid by its religious sponsor and others by the public.
473 U.S. at 392, 105 S.Ct. at 3227 (quoting
Felton v. Secretary, United States Dep’t of Educ.,
739 F.2d 48 , 67-68 (1984)).
22. The Court concludes that the JPPSS special education teachers are “performing important 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.”
Meek,
421 U.S. at 371 , 95 S.Ct. at 1766 .
23. To ensure that JPPSS special education teachers remain “religious neutral,” the State and Jefferson Parish would have to “engage in some form of continuing surveillance to ensure that those restrictions were being followed.”
Id.
at 372 , 95 S.Ct. at 1766 . This surveillance could result in administrative and political entanglement between the parochial schools and the State and Jefferson Parish. The
Meek
Court found this potential for administrative and political entanglement to be one of the evils that the Establishment Clause was designed to protect against.
Id.
24. Considering all of the circumstances, applying the holdings of
Meek
and
Ball ,
the Court is compelled to find that the special education statute, La.Rev.Stat. §§ 17:1941-1956, which allows state-paid special education teachers to teach on the premises of pervasively sectarian institutions, violates the Establishment Clause as applied.
25. Because neither Chinchuba Institute for the Deaf nor Hope Haven/Madonna Man- or is a pervasively sectarian institution, the Court finds that there is no significant risk that JPPSS special education teachers at Chinchuba Institute for the Deaf and Hope Haven/Madonna Manor will “have the primary effect of advancing religion” or will cause “excessive entanglement” of government with religion. Thus, the Court finds that the special education statute which allows state-paid special education teachers to teach on the premises of Chinchuba Institute for the Deaf and Hope Haven/Madonna Man- or does not violate the Establishment Clause.
26. Plaintiffs have also asked this Court to decide whether the Louisiana statutory provisions, specifically La.Rev.Stat. §§ 17:1944, 17:1946, 17:1949, and 17:1950, authorizing the funding of special education programs on the premises of pervasively sectarian institutions are unconstitutional on their face.
7
27. Plaintiffs contend that La.Rev.Stat. §§ 17:1944, 17:1946, 17:1949, and 17:1950, which authorize state or local school districts to enter into contractual arrangements with nonpublic institutions for the provision of special education programs, do not contain any legislative restriction to protect against the unconstitutional fusion of state and sectarian activities and/or the providing of sectarian education, training, or other activities at public expense.
28. In
Bowen v. Kendrick,
487 U.S. 589, 610 , 108 S.Ct. 2562, 2575 , 101 L.Ed.2d 520 (1988), the Court held that “a relevant factor in deciding whether a particular statute on its face can be said to have the improper effect of advancing religion is the determination of whether, and to what extent, the statute directs government aid to pervasively sectarian institutions.”
*1122
29. As in
Bowen ,
the Court finds that nothing on the face of La.Rev.Stat. §§ 17:1944, 17:1946, 17:1949, or 17:1950, which permit contractual arrangements with nonpublic institutions for the provision of special education programs, indicates that “a significant portion” of either state or local school district funds will be disbursed to “pervasively sectarian” institutions.
Bowen,
487 U.S. at 610 , 108 S.Ct. at 2575 .
30. The
Bowen
Court noted that the Supreme Court has never stated that a
“statutory
restriction” expressly preventing the use of state or local funds for religious purposes is constitutionally required. 487 U.S. at 614 , 108 S.Ct. at 2577 (Emphasis added). The Court thus finds that such a restriction is not required.
31. The Court finds that La.Rev.Stat. §§ 17:1944, 17:1946, 17:1949, and 17:1950 do not violate the Establishment Clause on their face.
II. THE REQUIRED SERVICES REIMBURSEMENT PROGRAM
WHETHER LOUISIANA’S LEGISLATIVELY-ADOPTED PROGRAM FOR THE PROVISION OF REIMBURSEMENT TO NONPUBLIC SCHOOLS FOR ADMINISTRATIVE EXPENSES IS CONSTITUTIONAL.
FINDINGS OF FACT
1. The plaintiffs challenge the facial validity of La.Rev.Stat.Ann. §§ 17:361-365 (West 1982), the “Reimbursement of Required Costs” statute, and challenge the statute as applied.
2. La.Rev.Stat. §§ 17:361-365, the “Reimbursement of Required Costs” statute, establishes a program for reimbursing approved nonpublic schools for their actual costs incurred in maintaining records and providing administrative services that are required by state or local law, rule or regulation.
3. La.Rev.Stat. § 17:361 specifically provides:
The superintendent of education, in accordance with rules and regulations adopted by the Board of Elementary and Secondary Education, shall annually reimburse each approved nonpublic school, for each school year beginning on and after July, 1979, an amount equal to the actual cost incurred by each such school during the preceding school year for providing school services, maintaining records and completing and filing reports required by law, regulation or requirement of a state department, state agency, or local school board to be rendered to the state, including but not limited to any forms, reports or records relative to school approval or evaluation, public attendance, pupil health and pupil health testing, transportation of pupils, federally-funded educational programs including school lunch and breakfast programs, school textbooks and supplies, library books, pupil appraisal, pupil progress, transfer of pupils, teacher certification, teacher continuing education programs, unemployment, annual school data, and any other education-related data which are now or hereafter shall be required of such nonpublic school by law, regulation or requirement of a state department, state agency, or local school board.
La.Rev.Stat.Ann. § 17:361 (West 1982).
4. The statute authorizes reimbursement to the nonpublic school for three separate and distinct activities: 1) the provision of school services; 2) the maintaining of records; and 3) the completing and filing of reports. La.Rev.Stat.Ann. § 17:361.
5. La.Rev.Stat. §§ 17:362 and 17:364 provide that no approved nonpublic school may receive a payment pursuant to La.Rev.Stat. § 17:361 unless the school has submitted to the superintendent an application containing the information and documentation required by the superintendent, and the superintendent has approved the application. La.Rev. StatAnn. §§ 17:362, 17:364 (West 1982).
6. La.Rev.Stat. § 17:363 further requires that each school which seeks reimbursement “shall maintain a separate account or system of accounts for the expenses incurred in rendering the required services for which reimbursement is authorized by R.S. 17:361.”
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La.Rev.Stat.Ann. § 17:363 (West 1982). The records and accounts “shall contain such information and be maintained in accordance with regulations adopted by the [Board of Elementary and Secondary Education].”
Id.
7. In addition, § 17:363 provides that “[i]n promulgating such regulations concerning records and accounts and in requiring supportive documents ... the superintendent
shall implement
the audit procedures provided in R.S. 17:365.”
Id.
(Emphasis added).
8. “The records and accounts for each school year shall be preserved at the school until the completion of such audit procedures.” La.Rev.Stat.Ann. § 17:363.
9. Section 17:365 states:
No application for reimbursement ... shall be approved except upon such audit of vouchers or other documents by the superintendent as is necessary to insure that such payment is lawful and proper.
The legislative auditor
may
from time to time examine ... any and all accounts and records of a school which have been maintained pursuant to this Part in support of an application for reimbursement, for the purpose of determining the cost to such school of rendering the services referred to in R.S. 17:361. If after such audit it is determined that any school has received funds in excess of the actual cost of providing such services, such school shall immediately reimburse the state in such excess amount.
La.Rev.Stat.Ann. § 17:365 (West 1982) (Emphasis added).
10. The Court finds that there is no provision in La.Rev.Stat. §§ 17:361-365 specifically prohibiting the payment of administrative expenses relating to sectarian activity that may occur at the school.
11. The Court finds that there is no provision in La.Rev.Stat. §§ 17:361-365 requiring reimbursement only for the selection, administration, and grading of standardized tests approved by the State of Louisiana, and not for any teacher-prepared tests.
12. Pursuant to La.Rev.Stat. §§ 17:361-365, the Louisiana Board of Elementary and Secondary Education (BESE) has promulgated regulations governing the administration of the required costs reimbursement program. These are called “Regulations of Louisiana State Board of Elementary and Secondary Education Pursuant to Louisiana Revised Statutes 17:361-17:365” (hereinafter “BESE Regulations”). Ex. D-3; Doc. 265, pp. 92-94. The BESE Regulations have been in effect continuously since 1980, when they were promulgated, through the date of the trial. Ex. D-2, p. 2.
13. Section 2(a) of the BESE Regulations sets forth that the nonpublic school seeking reimbursement “shall submit an application ... and shall submit completed reimbursement worksheets as may be required by the Superintendent of Education.” Ex. D-3 § 2(a).
14. The BESE Regulations also require that schools seeking reimbursement maintain backup documentation in support of their reimbursement request, including (1) separate records of expenditure accounts for each required service; (2) separate employee time records indicating the amount of time that each employee devoted to each service for which reimbursement is requested; (3) individual employee salary records; and (4) a receipt file for paid bills for which reimbursement is sought. Ex. D-3 § 2(b)(l)-(4).
15. Section 4(a) of the BESE Regulations states that “to be eligible for reimbursement for required services, a nonpublic school must be approved by the Board of Elementary and Secondary Education ... and must be in compliance with the order of the court in the case of
Brumfield vs.
Dodd.” Ex. D-3 § 4(a).
16. Section 5 of the BESE Regulations entitled “Auditing” states: “(a) No application for reimbursement under this part shall be approved except such audit of receipts or other documents by the Superintendent as is necessary to insure that such payment is lawful and proper.” Ex. D-3 § 5. In addition, the legislative auditor may from time to time examine the accounts and records of the nonpublic school “for the purpose of determining the cost to such school of rendering the services referred to in these regulations and Revised Statutes 17:361.”
Id.
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17. Section 6 of the BESE regulations sets forth an appeals procedure. A nonpublie school may appeal an audit conducted by either the superintendent of education or the legislative auditor to the Board of Elementary and Secondary Education. Ex. D-3 § 6.
18. Section 7(c) states that “[a] nonpublie school may designate another legal entity to receive the reimbursement to which said nonpublic school is entitled under the provisions of the required services act by providing the Superintendent of Education with an authorization to that effect from the governing authority of the nonpublic school.” Ex. D-3 § 7(c).
19. The BESE Regulations do not make any specific reference to whether reimbursement is allowed for either teacher-prepared or standardized tests.
20. “Instructions for Completing the Required Services Form” (hereinafter “Instructions”) are provided by the Louisiana Department of Education to the administrators of nonpublic schools. Exs. D-2 & D-4. “The forms require the school to indicate the number of hours consumed by each type of employee in a particular task and the cost to the school of that employee’s time.” Ex. D-2, p. 2. Both the required services form and the Instructions have been used by the State “continuously from at least 1980” to the date of trial.
Id.
21. The Instructions do not make any reference to reimbursement for either teacher-prepared or state-prepared tests.
22. The Louisiana Department of Education mails the BESE Regulations and a required services form (hereinafter “claim form”) once a year to the eligible nonpublic schools. Doe. 265, p. 94.
23. The claim forms are to be filed with the Louisiana Department of Education by September 30 of each year with a grace period to October 15.
Id.
at 67.
24. The claim form lists all of the categories of mandated administrative expenses for which a nonpublic school may seek reimbursement. The categories include:
(1) pupil attendance reporting;
(2) record maintenance;
(3) nonpublic school annual reports;
(4) transportation;
(5) inspections;
(6) textbooks and supplies;
(7) ESEA Titles I and IV-B;
(8) special education;
(9) testing program;
(10) teacher certification;
(11) continuing education; and
(12) food and nutrition program.
Ex. S-32.
25. The claim form also lists a time “parameter” for each category of mandated administrative expenses for which a nonpublic school may seek reimbursement.
Id.
26. The “Reimbursement of Required Costs” statute became effective July 11, 1980. La.Rev.Stat.Ann. §§ 17:361-365 (West 1982). In the summer of 1980, a committee of twenty to twenty-five members was formed to make recommendations as to “how the required services law could be implemented.” Doc. 254, pp. 35-36, 57. The committee, comprised of both nonpublic school personnel and members of the state Department of Education, did not devise the claim form itself.
Id.
However, the committee did discuss and make recommendations as to parameters and hours.
Id.
at 36-37. It is unclear to the Court whether the committee’s recommendations were adopted, but time parameters apparently were included on the claim form used at the inception of the required services reimbursement program.
27. Number 4 of the Instructions provided by the Louisiana Department of Education states: “Parameters (máximums) for reporting by function and personnel type are included on the form. The number of hours actually recorded may vary from school to school. If the parameters are exceeded, additional auditing may be required.” Ex. D-4.
28. The BESE Regulations do not define “parameters” or make any reference at all to “parameters.”
29. Joseph F. Kyle, Deputy Superintendent for Management and Finance in the Louisiana Department of Education from
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March 12, 1984 to March 14, 1988, testified concerning his department’s administration of the nonpublic school reimbursement program. Doc. 264, pp. 86-87. He stated “I don’t know what parameters mean” when asked whether he attempted to ascertain if the information contained on the claim forms was within the parameters set forth on the form.
Id.
at 120.
30. Graig Luscombe, Deputy Superintendent for Management and Finance in the Louisiana Department of Education at the time of trial, testified that there were two persons in his office directly involved in handling the claims for reimbursement for nonpublic school administrative expenses. Doc. 258, pp. 55, 100-101. Jennings Cleveland, a Fiscal Officer 7 with the Bureau of School Finance and Budget of the Louisiana Department of Education, was specifically responsible for the administration of the reimbursement program. Doc. 265, pp. 61-62; Doc. 264, pp. 127-28; Doc. 258, p. 101. Magdalen Marchiafava was the “staff person who prepares documents to actually cause the flow of the money.” Doc. 258, p. 101.
31. Mr. Cleveland testified that the time parameters are “guidelines” for the persons filling out the claim forms. Doc. 265, p. 145. The guideline “is a general consensus of the particular laws in that area ... and is going to vary from place to place.”
Id.
32. Mr. Cleveland and Ms. Marchiafava were the only two persons who would question “whether the amount that is claimed falls within what is considered reasonable ■within the guidelines.”
Id.
at 146, 149.
33. Mr. Cleveland testified that “[a]ny local ordinance, any local regulation, any public health regulation, any BESE regulation, anything that would require them to do something” could be used as a basis for a nonpublic school reimbursement claim.
Id.
at 97.
34. The Bureau of School Finance and Budget of the Louisiana Department of Education does not keep records of all of the local regulations of the 64 parishes of the state.
Id.
35. Certain nonpublic schools in Louisiana have filed claim forms with the State with recorded figures that exceed the parameters stated on the forms.
Id.
Most of these schools have explained to Mr. Cleveland why the parameters were exceeded. Mr. Cleveland then advised these schools that have exceeded the parameters that if they “leave in [their] files an audit trail that in case this program is ever audited that they can check it that’s okay.”
Id.
at 72.
36. The Court finds that the State Department of Education, in processing claim forms under the required services reimbursement program, does not require that the amounts recorded by the nonpublic schools be within the time parameters.
Id.
37. Mr. Cleveland spot checks approximately 15 claim forms to “see if the math is correct” and then forwards the forms to Ms. Marchiafava, an accounting analyst with the Bureau of School Finance and Budget.
Id.
at 5, 67, 69.
38. Ms. Marchiafava has instructions from Mr. Cleveland “to take the bottom line and set that up as the amount of the claim.”
Id.
at 67. She enters all of the information on the claim forms into the computer.
Id.
at 9. Once all of the information is entered into the computer, Ms. Marchiafava arrives at a grand total and she prints “a hard copy.”
Id.
at 20. She compares the hard copies from year to year “to see if there [are] any astronomically large figures or anything that looks strange ... in the comparison.”
Id.
If she discovers “a figure that has changed significantly,” Ms. Marchiafava brings it to Mr. Cleveland’s attention.
Id.
at 21.
39. Ms. Marchiafava noted a discrepancy in the 1989 grand total from the seven schools in the Houma/Thibodaux diocese.
Id.
at 21. The schools explained the discrepancy to her on the telephone.
Id.
at 24. Mr. Cleveland reviewed the seven claim forms, before ultimately paying the higher amount claimed.
Id.
at 25.
40. Ms. Marchiafava recalled a school which had overreported its required costs and so refunded money to the State this year.
Id.
at 22.
41. Once the legislature makes the appropriation for the nonpublic school reimbursement program, Mr. Cleveland calculates the percentage due each school on a pro rata
*1126
basis and gives that percentage to Ms. Marchiafava. The computer then generates the amount to be paid to each school.
Id.
at 11, 69-70.
42. The State currently mails out thirty cheeks for the nonpublic school reimbursement program.
Id.
at 19.
43. The Court finds that the Louisiana Department of Education does not check the underlying documents that the nonpublic schools rely on in completing their claim forms, does not check the claim forms to determine whether the amounts claimed are within the parameters listed, and does not attempt to verify the information contained on the claim forms.
Id.
at 72-73; Doc. 264, p. 120.
44. For the 1988-89 school year, the Louisiana legislature appropriated approximately $3,587,000 for the nonpublic school reimbursement program. These funds were paid out by October 31, 1989. Doc. 265, pp. 103-104.
45. For 1988 and 1989, the State reimbursed the nonpublic schools for approximately 24% of the expenditure amounts which the schools claimed. The Louisiana legislature did not appropriate sufficient funds for full reimbursement.
Id.
at 143.
46. Since the 1984-85 school year, the Louisiana Department of Education has not reimbursed any eligible, approved, nonpublic school for more than 50% of the amount requested by the school. Doc. 336, p. 74, Stip. Fact 59.
47. Leonard J. Fine, formerly Assistant Superintendent for Business Management of the Department of Education of the Archdiocese of New Orleans, prepared an undated memorandum to assist the schools operating under the auspices of the Archdiocese in completing their claim forms (hereinafter “Fine memorandum”). Exs. P-292; D-l. The Fine memorandum describes in detail the activities which are included in each of the twelve categories specified in the claim form. His information “was taken directly from the state department’s issuance of the categories and what would fall under each of those categories.” Fine 9/16/87 dep., p. 172.
48. Category 9 “Testing Program” was described in the Fine memorandum as follows: “Selecting test; determining number of tests; ordering; administering; returning for grading; follow-up questionnaire; interpreting; recording.” Ex. P-292, p. 5. This language was identical to language used by the State with the exception of the addition of “follow-up questionnaire.” Fine 9/16/87 dep., p. 173. Any changes made by Mr. Fine “were made after a consultation with the state department.”
Id.
at 174. There was no reference to either state-prepared tests or teacher-prepared tests in the Fine memorandum.
49. On March 23, 1981, John C. Rice, Jr., Associate Superintendent for Government Programs, Louisiana Catholic Conference, prepared a memorandum to Catholic Administrators to assist them in completing the “Required Services Report.” Ex. P-304. The description of Category 9 “Testing Program” was identical to the description in the Fine memorandum.
50. In the case of forms completed by the parochial schools operated within the Archdiocese of New Orleans, the principals of the individual schools send the forms to the Archdiocese of New Orleans Office of Education, which collates the completed forms and sends them to the Louisiana Department of Education with a cover sheet indicating the claims submitted by each school. Fine 9/16/87 dep., pp. 174-175.
51. The Louisiana Department of Education annually mails to the Office of Education of the Archdiocese one check equal to the sum of all reimbursement payments to be made to Catholic schools operated within the Archdiocese, along with a printout indicating the reimbursement amount due each school. The Archdiocese then pays each school the reimbursement amount indicated on the printout.
Id.
at 175, 183-84.
52. Marie K. Cannon, the principal of St. Anthony School in Gretna, Louisiana, testified that her school participated in the nonpublic school required services program. The reimbursement monies went to the pastor of St. Anthony Parish. Ms. Cannon, however, was responsible for the preparation
*1127
of the claim and for submission of the claim for reimbursement. Doc. 260, pp. 54-56.
53. Ms. Cannon stated that at the beginning of the school year, the forms are presented to the faculty and explained to them.
Id.
at 56. She collects the claim forms every quarter, and then issues new forms to the teachers for the next quarter. At the end of the school year, Ms. Cannon works with a committee to compile the results and fill out the required claim form.
Id.
54. Ms. Cannon testified that the testing program which was included for reimbursement on the claim form was the standardized test of the Science Research Associates.
Id.
at 79.
55. Ms. Cannon stated that all of the quarterly logs received from the teachers and all of the reports dating back to the early 1980s are maintained in her office.
Id.
at 90. She noted that no one from the State or the legislative auditor’s office had ever come to her school to review the supporting documents.
Id.
at 65.
56. Alvin Murphy, President of Archbishop Chapelle High School in Metairie, Louisiana, an all-girls high school operated under the auspices of the Archdiocese, indicated that his school participates in the nonpublic school required services reimbursement program. Doc. 254, pp. 5, 32.
57. Mr. Murphy testified that for the seven years that he has been principal and president of Archbishop Chapelle, no one from the State, the parish, the legislative auditor’s office, or the Office of Education of the Archdiocese has ever visited the school to' review the supporting documents.
Id.
at 41-43.
58. The Archdiocese receives the reimbursement funds from the State and then forwards the reimbursement funds to the individual schools. Once Mr. Murphy receives the funds, he deposits them into the general account of the school.
Id.
at 46.
59. Andrew Campbell, principal of St. Angela Merici School in Metairie, Louisiana, testified that his school participates in the required services reimbursement program. Doe. 251, pp. 4-5, 56.
60. The reimbursement funds received from the State were deposited into the general account of St. Angela Merici School.
Id.
at 57.
61. No one from the State or the Archdiocese has ever come to St. Angela Merici to review or audit the records substantiating the hours submitted on the claim forms.
Id.
at 61.
62. Thomas Becker, the principal of St. Agnes School in Jefferson, Louisiana, testified that St. Agnes participates in the nonpublic school reimbursement program. Doc. 252, pp. 16-17.
63. No one from the State Department of Education or the Archdiocese has ever visited St. Agnes to review the documentation supporting the claim forms submitted by the school.
Id.
at 21.
64. Mr. Cleveland has been involved in administering the reimbursement program since 1980 when the program started. Doc. 265, pp. 70-71. He testified that there is “no audit staff in the Department of Education ... [and] one auditor for over a $2,000,400,-000 budget.”
Id.
at 99. The reason why no audit had taken place was because of “[l]ack of staff.”
Id.
65. Although La.Rev.Stat.Ann. § 17:365 and BESE Regulation § 5(a) authorize an audit of vouchers or other documents by the Superintendent of Education, the Court finds that no such audit by the Superintendent of Education has ever taken place.
66. Joseph Burris, the State Legislative Auditor at the time of his deposition on June 22, 1989, who had served in that capacity for seventeen years, testified that none of his staff auditors had engaged in any auditing at the site of any of the nonpublic schools in the state during the five years preceding his deposition. Burris dep., p. 11.
67. Although La.Rev.Stat.Ann. § 17:365 and BESE Regulation § 5(b) make provisions for an audit by the legislative auditor, the Court finds that no audit of the accounts and records of the nonpublic schools has been conducted by the State Legislative Auditor since at least 1984.
*1128
68. The Court finds that the principals of the nonpublic schools generally verified the accuracy of the reimbursement claim forms themselves.
CONCLUSIONS OF LAW
1. The United States Supreme Court has had two required services programs before it for its review:
Levitt v. Committee for Public Education,
413 U.S. 472 , 93 S.Ct. 2814 , 37 L.Ed.2d 736 (1973), and
Committee for Public Education & Religious Liberty v. Regan,
444 U.S. 646 , 100 S.Ct. 840 , 63 L.Ed.2d 94 (1980). In
Levitt ,
the Court held unconstitutional the statute under review. In
Regan ,
the Court held the statute to be constitutional.
2. In
Levitt ,
the New York statute under review reimbursed nonpublic schools
for expenses of services for examination and inspection in connection with administration, grading and the compiling and reporting of the results of tests and examinations, maintenance of records of pupil enrollment and reporting thereon, maintenance of pupil health records, recording of personnel qualifications and characteristics and the preparation and submission to the state of various other reports as provided for or required by law or regulation.
413 U.S. at 474, 93 S.Ct. at 2816.
3. In
Levitt ,
the nonpublic schools were reimbursed for both state-prepared examinations and traditional teacher prepared tests.
Id.
at 475 , 93 S.Ct. at 2816. The greatest portion of the funds paid the nonpublic schools under the statute was for reimbursement for the testing of the students.
Id.
at 478, 93 S.Ct. at 2818.
4. The
Levitt
Court found significant that no attempt was made under the statute and no means were available “to assure that internally prepared tests are free of religious instruction.”
Id.
at 480 , 93 S.Ct. at 2819. Since the State failed to assure that the testing was “not being used for religious indoctrination,” the Court concluded that the reimbursement statute constituted “an impermissible aid to religion____”
Id.
This was so “because the aid that will be devoted to secular functions is not identifiable and separable from aid to sectarian activities.”
Id.
5.
The
Levitt
Court noted that the State is not permitted to reimburse nonpublic schools “for any activity ‘mandated’ by state law or regulation.”
Id.
at 481 , 93 S.Ct. at 2819. Rather, “[t]he essential inquiry in each case, as expressed in our prior decisions, is whether the challenged state aid has the primary purpose or effect of advancing religion or religious education or whether it leads to excessive entanglement by the State in the affairs of the religious institution.”
Id.
The Establishment Clause is not to be “read as permitting a State to pay for whatever it requires a private school to do.”
Id.
at 482, 93 S.Ct. at 2820.
6. Thus, in
Levitt ,
“the inherent teacher discretion in devising, presenting and grading traditional tests, together with the failure of the legislature to provide for a method of auditing to ensure that public funds would be spent exclusively on secular services, disabled the enactment from withstanding constitutional scrutiny.”
Regan,
444 U.S. at 650 , 100 S.Ct. at 844-45 .
7. In
Wolman v. Walter,
433 U.S. 229 , 97 S.Ct. 2593 , 53 L.Ed.2d 714 (1977), the Supreme Court sustained an Ohio statute which authorized the expenditure of state funds “[t]o supply for use by pupils attending nonpublic schools within the district such standardized tests and scoring services as are in use in the public schools of the state.”
Regan,
444 U.S. at 653 , 100 S.Ct. at 846 . In
Wolman ,
the tests were drafted and graded by state personnel, and were administered by nonpublic school personnel.
Wolman,
433 U.S. at 239 , 97 S.Ct. at 2601 . The Ohio statute did not authorize any reimbursement to nonpublic schools for the costs of administering the tests.
Id.
8. The New York legislature enacted a new reimbursement statute after
Levitt .
The
Regan
Court upheld this new statute which permitted reimbursement to the nonpublic schools for two categories of services: the administration of state-prepared standardized examinations and the execution of state-required reporting requirements.
Committee for Public Education & Religious Liberty v. Levitt,
461 F.Supp. 1123 , 1125
*1129
(S.D.N.Y.1978),
aff'd sub nom., Committee for Public Education & Religious Liberty v. Regan,
444 U.S. 646 , 100 S.Ct. 840 , 63 L.Ed.2d 94 (1980).
9. The New York statute considered in
Regan
provided reimbursement to the nonpublic schools both for administering standardized tests and for grading the tests. 444 U.S. at 657 , 100 S.Ct. at 848 . The statute did not reimburse nonpublic schools for “the preparation, administration, or grading of teacher-prepared tests.”
Id.
at 652 , 100 S.Ct. at 845-46 . The Supreme Court in
Regan
applied
Wolman
and took it one step further, allowing the nonpublic schools to be reimbursed for both the costs of administering “secular” tests and grading of “secular” tests.
Id.
The
Regan
Court found that “grading the secular tests furnished by the State in this case is a function that has a secular purpose and primarily a secular effect.”
Id.
However, the Supreme Court left open the possibility that “the outcome would likely be different were there no effective means for insuring that the cash reimbursements would cover only secular services.”
Regan,
444 U.S. at 659 , 100 S.Ct. at 849 .
10. The
Regan
Court also found that reimbursement for recordkeeping and reporting services had primarily a secular purpose. 444 U.S. at 656-57 , 100 S.Ct. at 848 . Between 85% and 95% of the total reimbursement to the nonpublic schools was for attendance reporting.
Id.
at 657 n. 5, 100 S.Ct. at 848 n. 5. The Supreme Court found that these ministerial “tasks are not part of the teaching process and cannot ‘be used to foster an ideological outlook.’”
Id.
at 656-57 , 100 S.Ct. at 848 .
11. The statute in
Regan
required the schools claiming reimbursement to submit along with their application for reimbursement “additional reports and documents prescribed by the Commissioner____” 444 U.S. at 659 , 100 S.Ct. at 849 . In fact, § 4 of the New. York statute provides:
§ 4. Application
Each school which seeks an apportionment pursuant to this act shall submit to the commissioner an application therefor, together with such additional reports and documents as the commissioner
may
re
quire,
at such times, in such form and containing such information as the commissioner may prescribe by regulation in order to carry out the purposes of this act.
N.Y. Unconsol. Law ch. 91-C § 4 (1993) (Emphasis added).
12. La.Rev.Stat. § 17:362 virtually tracks the language of § 4 of the New York statute and also requires the nonpublic schools to submit with their reimbursement application “such additional reports and documents as the superintendent
may re
quire____”. (Emphasis added). La.Rev. StatAnn. § 17:362 (West 1982).
13. The Court finds that La.Rev.Stat. § 17:362, on its face, does not violate the Establishment Clause under the Supreme Court’s holding in
Regan .
14. La.Rev.Stat. § 17:363 entitled “Maintenance of records” is essentially indistinguishable from § 5 of the New York statute, also entitled “Maintenance of records.” Both sections require that each nonpublic school maintain “a separate account or system of accounts for the expenses incurred” and preserve the accounts and records supporting their applications for reimbursement at the school “until the completion of such audit procedures.” La.Rev.Stat.Ann. § 17:363 (West 1982); N.Y. Uneonsol. Law ch. 91-C § 5 (1993).
15. The Court finds that neither
Levitt
nor
Regan
mandate that once the reimbursement funds are received from the State, that they have to be deposited into a separate bank account. Like the statute upheld in
Regan ,
La.Rev.Stat. § 17:363 requires that separate records and accounts be maintained at the nonpublie schools substantiating the services to be reimbursed. 444 U.S. at 659 , 100 S.Ct. at 849 .
16. The Court finds that La.Rev.Stat. § 17:363, on its face, does not violate the Establishment Clause under the Supreme Court’s holdings in
Levitt
and
Regan .
17. Section 17:364 of the Louisiana statute entitled “Payment” and § 6 of the New York statute entitled “Payment” both require that no funds be paid to a nonpublic school until the application has been approved by
*1130
the superintendent in the Louisiana statute and by the commissioner in the New York statute. La.Rev.Stat.Ann. § 17:364 (West 1982); N.Y. Unconsol. Law eh. 91-C § 6 (1993).
18. The Court finds that La.Rev.Stat. § 17:364, on its face, does not violate the Establishment Clause under the Supreme Court’s holding in
Regan .
19. Section 17:365 of the Louisiana statute and § 7 of the New York statute both authorize auditing by two different state departments. The Louisiana statute provides for auditing by the Superintendent of Education and by the Legislative Auditor. The New York statute approves auditing by the State Commissioner of Education and by the State Department of Audit and Control. The procedure for auditing by the Louisiana superintendent, set forth in the first paragraph of § 17:365, is identical to the procedure for auditing by the New York commissioner, set forth in the first paragraph of § 7 of the New York statute.
The second paragraph of both sections, § 17:365 and § 7, both require that any excess monies discovered by audit be returned “immediately” to the State by the nonpublie school.
The only notable difference in the two sections is that the New York department of audit and control
“shall
from time to time examine” the accounts and records of the nonpublic school, while the Louisiana Legislative Auditor
“may
from time to time examine” those same accounts and records. The Court does not find this discretion in the duties of the Louisiana
Legislative Auditor,
pursuant to § 17:365 of the Louisiana statute, to have any constitutional significance, since the Louisiana
Superintendent of Education
is commanded by the statute to audit documents “as is necessary to insure that such payment is lawful and proper.” La. Rev.Stat.Ann. § 17:365 (West 1982). The audit by the Superintendent of Education, if performed properly, should be sufficient on its own to make certain “that the cash reimbursements ... cover only secular services.”
Regan,
444 U.S. at 651 , 100 S.Ct. at 845 . If the auditing by the Superintendent of Education is done thoroughly, the audit by the Legislative Auditor can be reserved for unusual situations which demand additional scrutiny.
Thus, the Court finds that § 17:365 of the Louisiana statute contains provisions both authorizing state audits of nonpublic school financial records and requiring the refund of excess reimbursement, two of the concerns highlighted in
Levitt,
413 U.S. at 477 , 93 S.Ct. at 2817 .
20. The Court also finds that the Louisiana statute, like the New York statute in
Regan ,
on its face, “suggests no excessive entanglement----”
Regan,
444 U.S. at 660 , 100 S.Ct. at 850 . The Louisiana statute, like the New York statute upheld in
Regan ,
allows for a reimbursement process which “is straightforward and susceptible to the routinization that characterizes most reimbursement schemes.”
Id.
In both statutory schemes, separate books are required for the reimbursement and “ ‘[t]he services for which the private schools would be reimbursed are discrete and clearly identifiable.’ ”
Id.
Thus, the Court follows the
Regan
court and finds that any auditing of the records of the nonpublic schools by the State will not result in excessive entanglement.
21. Thus, the Court finds that La.Rev. Stat. § 17:365, on its face, does not violate the Establishment Clause pursuant to
Levitt
and
Regan .
22. The most notable difference between the Louisiana statute and the New York statute upheld in
Regan
is the number of nonpublic school expenses that are allowed to be reimbursed by the State. Specifically, Section 3 of the New York “Reimbursement of Nonpublic Schools for Expenses of State Programs” allows reimbursement to the nonpublic schools for the actual costs incurred “for providing services required by law to be rendered to the state in compliance with the requirements of the state’s pupil evaluation program, the basic educational data system, regents examinations, the statewide evaluation plan, the uniform procedure for pupil attendance reporting, and other similar state prepared examinations and reporting proce
*1131
dures.” N.Y. Unconsol. Law ch. 91-c § 3 (1993).
8
Section 17:361 allows reimbursement to the nonpublic school for providing school services, maintaining records, and completing and filing reports, which are required by the State or the local school board in 14 specific categories and a category which includes “any other education-related data which are now or hereafter shall be required of such nonpublic school by law, regulation or requirement of a state department, state agency, or local school board.” La.Rev.Stat.Ann. § 17:361 (West 1982). These expenses appear to be “highly routinized” and so “costs of the services for a given size of class should vary little from school to school, thus enabling the State to check claims filed by private schools against records maintained by hundreds of public schools under State supervision.”
Regan,
444 U.S. at 660 n. 7, 100 S.Ct. at 850 n. 7.
23. Plaintiffs have failed to identify, and the Court is not aware of, any law, regulation or requirement of any Louisiana state department, state agency, or local school board that requires the preparation or ordering of materials used in religion classes or to teach religion to children enrolled in parochial schools.
24. Since the statute limits the reimbursable expenses to these 14 specific categories and only “education-related data” which is or will be mandated by the State or local school board, the Court finds that the listed reimbursable activities “are discrete and clearly identifiable.”
Regan,
444 U.S. at 660 , 100 S.Ct. at 850 .
25. The Court finds that La.Rev.Stat. § 17:361, on its face, does not violate the Establishment Clause pursuant to
Levitt
and
Regan .
26. The Louisiana reimbursement statute, unlike the New York statute, does not include the legislative purpose in the language of the statute. However, the Court finds that the Louisiana statute also has the secular purpose of providing “educational opportunity of a quality which will prepare its citizens for the challenges of American life in the last decades of the twentieth century.” N.Y. Unconsol. Law ch. 91-C § 1 (1993);
Regan,
444 U.S. at 654 , 100 S.Ct. at 847 .
27. The Court finds that the Louisiana statute on its face provides only that the actual costs incurred by the approved schools for record-keeping and for providing required services may be reimbursed upon application to the State Superintendent of Education.
28. The Court finds that the auditing procedures and other safeguards included in the Louisiana statute do not involve excessive entanglement, just as the
Regan
court found that the New York statute did not suggest excessive entanglement on its face.
Regan,
444 U.S. at 660 , 100 S.Ct. at 580 . The
Regan
court described the process of reimbursement:
Schools which seek reimbursement must ‘maintain a separate account or system of accounts for the expenses incurred in rendering’ the reimbursable services, and they must submit to the N.Y. State Commissioner of Education an application for reimbursement with additional reports and documents prescribed by the Commissioner____ Reimbursable costs include proportionate shares of the teachers’ salaries and fringe benefits attributable to administration of the examinations and reporting of State-required data on pupil attendance and performance, plus the cost of supplies and other contractual expenditures such as data processing services. Applications for reimbursement cannot be approved until the Commissioner audits vouchers or other documents submitted by the schools to substantiate their claims____ The Statute further provides that the State Department of Audit and Control shall from time to time inspect the accounts of recipient schools in order to verify the cost to the schools of rendering the reimbursable services. If the audit reveals that a school
*1132
has received an amount in excess of its actual costs, the excess must be returned to the State immediately.... (citations omitted)
444 U.S. at 659-60 , 100 S.Ct. at 849 -50 (quoting 461 F.Supp. at 1126 (quoting N.Y. Laws, ch. 507)).
29. Since the reimbursement process set forth in the Louisiana statute, like the New York statute, is “straightforward and susceptible to the routinization that characterizes most reimbursement schemes,” the Court finds that on its face, the Louisiana statute does not suggest any excessive entanglement.
Regan,
444 U.S. at 660 , 100 S.Ct. at 850 .
30. The Louisiana required services reimbursement statute, which declares that nonpublic schools may receive reimbursement only after state officials review and approve state-prescribed application forms submitted by the nonpublic schools, La.Rev.Stat.Ann. §§ 17:362, 364 (West 1982), and that nonpublic schools must maintain documents supporting their claims in a separate account and are subject to periodic audits by the state,
id.
§§ 17:363 & 365, on their face provide “effective means for insuring that the cash reimbursements would cover only secular services.”
Regan,
444 U.S. at 659 , 100 S.Ct. at 849 .
31. Because of the safeguards included in the Louisiana statutory scheme which should insure that only secular services are reimbursed, the Court finds that the absence of “an express limitation” on the use of the reimbursement funds for religious purposes does not establish that the Louisiana Reimbursement of Required Costs statute on its face has the primary effect of advancing religion.
Bowen v. Kendrick,
487 U.S. 589, 615 , 108 S.Ct. 2562, 2577-78 , 101 L.Ed.2d 520 (1988). The
Bowen
Court noted that the Supreme Court has “never stated that a
statutory
restriction is constitutionally required.”
Id.
at 614 , 108 S.Ct. at 2577 .
32. The
Regan
Court noted that the Supreme Court has not accepted the “freeing-up” argument advanced by the plaintiffs: “ ‘that all aid is forbidden because aid to one aspect of an institution frees it to spend its other resources on religious ends.’ ”
Regan,
444 U.S. at 658 , 100 S.Ct. at 849 (quoting
Hunt v. McNair,
413 U.S. 734, 743 , 93 S.Ct. 2868, 2874 , 37 L.Ed.2d 923 (1973)). In
Roemer v. Maryland Public Works Bd.,
426 U.S. 736, 747 (1976),
quoted in, Regan,
444 U.S. at 658 n. 6, 100 S.Ct. at 849 n. 6, the Court stated:
The Court has not been blind to the fact that in aiding a religious institution to perform a secular task, the State frees the institution’s resources to be put to sectarian ends. If this were impermissible, however, a church could not be protected by the police and fire departments, or have its public sidewalk kept in repair. The Court never has held that religious activities must be discriminated against in this way.
33. The Court thus finds that the Louisiana statute, La.Rev.Stat. §§ 17:361-365, is constitutional on its face.
34. Turning to the as-applied challenge, the plaintiffs contend that the reimbursement program’s current set-up does not ensure that only state prepared tests and not teacher prepared tests are included, that the reimbursement funds will be used only for secular services, and that only the “actual costs” in the meeting of state obligations are reimbursed. Plaintiffs argue that either the aid will result in the advancement of religion because of the failure to adequately monitor its use, or due to the necessary monitoring, excessive entanglement will result.
35. Plaintiffs emphasize that the New York reimbursement plan in
Regan
involved tests that were prepared by the State, and were administered on the premises by personnel of nonpublic schools. 444 U.S. at 654 , 100 S.Ct. at 846-47 . The nonpublic schools were found by the Court to have no control over the content of the tests.
Id.
Although some of the state prepared tests were graded by nonpublic school personnel, it was determined that in view of the nature of the tests, which dealt only with secular academic matters, the grading by nonpublic school employees afforded no control by the nonpublie school over the outcome of any of the tests, leaving no risk that the state prepared tests could be used for religious educational purposes.
Id.
at 657 , 100 S.Ct. at 848 .
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36. In
Zobrest v. Catalina Foothills School District,
— U.S. -, -, 113 S.Ct. 2462, 2463 , 125 L.Ed.2d 1 (1993), the Supreme Court held that the school district’s provision of a sign-language interpreter to a disabled child enrolled in a pervasively sectarian school to facilitate his education did not violate the Establishment Clause. The Court found that “[w]hen the government offers a neutral service on the premises of a sectarian school as part of a general program that ‘is in no way skewed towards religion,’ ” providing this service does not offend the Establishment Clause.
Id.
— U.S. at-, 113 S.Ct. at 2467.
37. The Court finds that the administration of the Louisiana required services statute by the Louisiana Department of Education does not provide adequate assurance “that the cash reimbursements would cover only secular services.”
Regan,
444 U.S. at 659 , 100 S.Ct. at 849 .
38. The Court finds that the Louisiana Superintendent of Education and the Board of Secondary and Elementary Education are not administering the reimbursement program as set forth in La.Rev.Stat. §§ 17:361-365 for the following reasons: the Superintendent of Education and the Legislative Auditor have failed to conduct an audit of the documents and accounts of the nonpublic schools within the last five years; the Superintendent of Education has failed to check the claim forms for substantive content, rather than just cheeking the forms for mathematical accuracy; the Superintendent of Education has failed to require the nonpublic schools to submit additional reports and documents to support applications for reimbursement which exceed the parameters; the BESE regulations have failed to define “parameters” and to implement a procedure to be used to determine whether an expense falls within the acceptable parameters; and the BESE regulations have failed to limit reimbursement specifically to state-prepared tests and not teacher-prepared tests. The safeguards set forth in La.Rev.Stat. §§ 17:361-365 to ensure that the reimbursement to the nonpublic schools is only for secular services have not been implemented. According to
Levitt
and
Regan ,
this Court must be certain that the reimbursement provided by the State does not directly aid religious education, and that the reimbursement is for tasks that have “a secular purpose and primarily a secular effect.”
Regan,
444 U.S. at 657 , 100 S.Ct. at 848 .
39. The Court thus finds that the Louisiana Reimbursement of Required Costs statute, La.Rev.Stat.Ann. §§ 17:361-365, as presently applied by the Louisiana Superintendent of Education and the Board of Elementary and Secondary Education, violates the Establishment Clause.
III. THE JEFFERSON PARISH SCHOOL BOARD’S BUS TRANSPORTATION PROGRAM
A
WHETHER THE TRANSPORTATION PROGRAM WHICH PROVIDES FOR SEPARATE TRANSPORTATION OF PUBLIC AND NONPUBLIC SCHOOL CHILDREN IN JEFFERSON PARISH IS UNCONSTITUTIONAL IN ITS APPLICATION.
B. WHETHER THE TRANSPORTATION PROGRAM RESULTS IN EXCESSIVE ENTANGLEMENT.
FINDINGS OF FACT
1. Plaintiffs challenge the State of Louisiana’s school transportation statute, La.Rev. Stat. § 17:158, as applied in Jefferson Parish, Louisiana.
2. La.Rev.Stat. § 17:158 now provides, in pertinent part:
A. (1) [E]ach 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.
(4) ... However, nothing in this Section shall prohibit a parish or city school from entering into contracts or mutual agreements for providing school bus transportation.
*1134
La.Rev.Stat.Ann. § 17:158 (West Supp.1994) (Emphasis added).
3. The statute applies to all “eligible public and nonpublic school students.” La.Rev. StatAnn. § 17:158(F) (West 1982).
4. Act 1992, No. 24, entitled “Schools— Free Transportation for Students,” became effective May 25, 1992. The purpose of this Act was:
to amend and reenact R.S. 17:158(A)(1) and (C) and to enact R.S. 17:158(H), relative to school transportation; to provide for the
free
transportation of certain students living more than one mile from school; to provide for exceptions; to provide limitations; to provide for the duties and responsibilities of the state superintendent of education and the State Board of Elementary and Secondary Education; to provide for the duties and responsibilities of city and parish school boards and certain board officers and employees; and to provide for related matters.
1992 La.Sess.Law Serv. Act No. 24 (West 1992) (Emphasis added).'
5. La.Rev.Stat. § 17:158 was amended after the trial of this matter. At the time of trial, the statute only required the local school board to provide transportation to all eligible public and nonpublic school students. In 1992, the statute was amended to require that the local school board provide
free
transportation to all public and nonpublic school students.
6. The Court finds that § 17:158(A), as amended, now mandates that
no
fee can be charged to any eligible student, public or nonpublic school, for transportation by the local school board. This is a significant change from the language of the statute which was applicable at the time of the trial.
7. La.Rev.Stat. § 17:158(H)(1) provides that “[n]o parish or city school board shall eliminate or reduce the level of transportation services provided to students as required by the provisions of this Section except for economically justifiable reasons approved in accordance with the provisions of this Subsection by the State Board of Elementary and Secondary Education.” La. Rev.Stat.Ann. § 17:158(H)(1) (West Supp. 1994).
8. If the local school board claims that it has “economically justifiable reasons” to eliminate or reduce the level of transportation services to students, then the local school board has to submit detailed financial information to the State in support of its request. La.Rev.Stat.Ann. § 17:158(H)(2)(a)-(e). In addition, the chief transportation officer of the school system, the local superintendent of schools, and the presiding officer of the school board must attest to a written statement “that the proposed reduction in or elimination of transportation services to students does not have a disparate impact on any group of students by reason of race, creed, sex, handicap, residence, or school attended,
whether public or approved nonpublic, elementary or secondary.”
La.Rev.Stat.Ann. § 17:158(H)(2)(f) (Emphasis added).
9. The Court finds that § 17:158(H), a subsection added in 1992, requires that any reduction or elimination of transportation services by the local school board must apply equally to both public and nonpublic school students, elementary and high school students. There can be no “disparate impact” on one group when transportation services must be reduced or eliminated because of financial problems.
Id.
10. The Court finds that § 17:158(H) sets forth detailed guidelines for the local school board to follow if the local school board seeks to reduce or eliminate transportation

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1680805. Public record. Not legal advice.