# Opposition Brief — Jackson v. Forest Hills Early Learning Center (Nos. 88-932, 88-730) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0538%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1998 ## Text IN THE Supreme Court of the United OCTOBER TERM, 1988 — LARRY D. JACKSON, AS DIRECTOR OF THE DEPARTMENT OF SOCIAL SERVICES OF THE COMMONWEALTH OF VIRGINIA, and GRACE BAPTIST CHURCH, et al., INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, " Petitioners, FOREST HILLS EARLY LEARNING CENTER, INC., ACADEMY DAY CARE, INC., AND HOLLOMAN CHILD CARE CENTERS, INC., Respondents. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit RESPONDENTS’ BRIEF IN OPPOSITION JOHN VANDERSTAR (Counsel of Record) COVINGTON & BURLING 1201 Pennsylvania Avenue, N.W. Washington, D.C. 20044 (202) 662-5540 JOHN E. HEINTZ STEPHANIE E. HUMBERT POPHAM, HAIK, SCHNOBRICH - & KAUFMAN, LTD. 1800 M Street, N.W. Suite 300 South Washington, D.C. 20036 (202) 828-5300 Counsel for Respondents ee ees WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001 2 W \s / \ YQ / QUESTION PRESENTED Do child care centers subject to state licensing require- ments have standing to challenge a statute exempting church-run centers from those requirements as an estab- lishment of religion? (i) TABLE OF CONTENTS Page pA EN te gt 2 gg | > SE iv COUNTERSTATEMENT OF THE CASE .................... 1 REASONS FOR DENYING THE WRIT ............0..0..... 6 I. Plaintiffs’ Standing Was Resolved in 1981_..... 6 II. Plaintiffs Have Standing to Challenge the Ex- emption As An Impermissible Establishment of Ee A ae a nc a ANS Re 9 LT ghana gain ca ackaeaesiabs 12 (iii) iv TABLE OF AUTHORITIES Cases . Page Arkansas Writers’ Project, Inc. v. Ragland, —— U.S. ] 8 Stes; 2s} ne 5, 6, 10 Armco Inc. v. Hardesty, 467 U.S. 638 (1984) _...... 10 Capital Investors Co. v. Estate of Morrison, 584 F.2d 652 (4th Cir. 1978), cert. denied, 440 U.S. IRL air ISSIR IA RP Oa one a es 9 Carey v. Brown, 447 U.S. 455 (1980) -...............-... 10 Dickinson v. Auto Center Mfg. Co., 733 F.2d 1092 I A en aceahaneeht 9 Forest Hills Early Learning Center, Inc. v. Luk- hard, 661 F. Supp. 300 (E.D. Va. 1987) ............. 5) Forest Hills Early Learning Center, Inc. v. Luk- hard, 789 F.2d 295 (4th Cir. 1986) .................... . 5,8 Forest Hills Early Learning Center, Inc. v. Luk hard, 728 F.2d 230 (4th Cir. 1984) -............ 3, 4, 7, 8, 10 Forest Hills Early Learning Center, Inc. v. Luk- hard, 540 F. Supp. 1046 (E.D. Va. 1982) ........... 3 Forest Hills Early Learning Center, Inc. v. Liuvk- hard, 642 F.2d 448 (4th Cir. 1981) _................... 3, 6 Forest Hills Early Learning Center, Inc. v. Luk- hard, 487 F. Supp. 1378 (E.D. Va. 1980) _........ 2,6 Forest Hills Early Learning Center, Inc. v. Luk- hard, 480 F. Supp. 636 (E.D. Va. 1979) _............. 2 Gillette v. United States, 401 U.S. 437 (1971) ........ 9 Gindes v. United States, 740 F.2d 947 (Fed. Cir.), cert. denied, 469 U.S. 1074 (1984) _......222.. 9 Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., No. 86-473, USS. . Ue ee | )_. FRR ne rene 7 Legal Aid Society of Alameda County v. Brennan, 608 F.2d 1319 (9th Cir. 1979), cert. denied, 447 RIA Ape ince Benn ene 7,8 Lynch v. Donnelly, 465 U.S. 668 (1984) .002002.00.. 9 Mid-Eastern Electronics, Inc. v. First National Bank, 455 F.2d 141 (4th Cir. 1970) _.....000000002..... 9 NAACP, Boston Chapter v. Harris, 607 F.2d 514 Se a ID Sr ccicchden cicck nshcren sopchasntis uaa sya oa 7 Vv TABLE OF AUTHORITIES—Continued Newport News Shipbuilding and Drydock Co. v. Peninsula Shipbuilders’ Ass’n, 646 F.2d 117 Oe ED Gcraiteis cient casas Paradise v. Prescott, 585 F. Supp. 72 (M.D. Ala. 1983), aff'd, 767 F.2d 1514 (11th Cir. 1985), aff'd sub nom. United States v. Paradise, 480 AR s® SIR e ee Police Dept. of Chicago v. Mosley, 408 U.S. 92 9 /: | Eee eRe GRA ashy are cet ill cet J ast canes. Fees Simon v. Eastern Kentucky Welfare Rights Or- gantsation, 426 U.S, BG CAGTG) oacncciovccccc cc cccccccs une. United States v. SCRAP, 412 U.S. 669 (1973)........ Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., SOS U.. UG CR kien ss ee ee Warth v. Seldin, 422 U.S. 490 (1975) .....000000... Statutes Va. Code § 63.1-196.3 (1979) _.............................000-2- Page 9 10 7,10 IN THE Supreme Court of the United States OCTOBER TERM, 1988 No. 88-932 -_ LARRY D. JACKSON, AS DIRECTOR OF THE DEPARTMENT OF SOCIAL SERVICES OF THE COMMONWEALTH OF VIRGINIA, and GRACE BAPTIST CHURCH, et al., INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, se Petitioners, FOREST HILLS EARLY LEARNING CENTER, INC., ACADEMY Day CARE, INC., AND HOLLOMAN CHILD CARE CENTERS, INC., Respondents. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit RESPONDENTS’ BRIEF IN OPPOSITION COUNTERSTATEMENT OF THE CASE In 1979, Virginia enacted a statute that exempts all “child care center|s] operated or conducted under the auspices of . . . religious institution[s]” from compliance with the licensing requirements of Virginia Code § 63.1- 196. Va. Code § 63.1-196.3 (1979). Under that enact- 2 ment, a church-run center can exempt itself from the licensing standards by filing a statement of intent to operate an exempt child care center and documentary evidence that it has satisfied certain limited health, safety and fire code requirements and specified staff-child ratios. Church-run child care centers that meet these criteria need not comply with the overwhelming majority of licensing standards applicable to non-exempt centers. On February 1, 1980, plaintiffs, three non-sectarian child care centers operating under licenses issued by the state, brought this action seeking a declaration that, inter alia, the exemption of church-run child care centers from the state’s licensing requirements constitutes an establish- ment of religion and a denial of equal protection of the laws.' The Director of the Department of Social Serv- ices of the Commonwealth of Virginia (“the state”) de- fended the exemption as a permissible accommodation of potential free exercise claims of church-run child care centers. No exempt church-run center sought to inter- vene at that time. Shortly after plaintiffs filed their complaint, the state moved to dismiss the entire action—including plaintiffs’ Establishment Clause claim—for lack of standing. The district court granted the motion because it concluded that plaintiffs’ claim of injury depended upon speculation. Forest Hills Early Learning Center, Inc. v. Lukhard, 487 F. Supp. 1378 (E.D. Va. 1980). On appeal, the Fourth Circuit concluded that plaintiffs’ standing to raise their Establishment Clause and Equal Protection Clause claims could be predicated on financial harm and remanded to allow plaintiffs to amend their complaint and to substan- + + tiate their allegations of financial harm by affidavit. + An earlier action filed in September 1979 was dismissed. Forest Hills Early Learning Center, Inc. v. Lukhard, 480 F. Supp. 636 E.D. Va. 1979). 3 Forest Hills Early Learning Center, Inc. v. Lukhard, 642 F.2d 448 (4th Cir. 1981) (“Forest Hills I’). After plaintiffs amended their complaint, supported by affidavits, the district court denied the state’s renewed motion to dismiss for lack of standing. See Order, Aug. 4, 1981. Plaintiffs’ subsequent motion for summary judg- ment, seeking a declaration that the exemption stat- ute violated, inter alia, the Establishment Clause of the United States Constitution, was substantiated by the affi- davits of Margaret D. Miller, James A. Payne, Frederick Glantz, Paul Boyd, Inez Holloman and Stephen Jones. These were the same affidavits that had supported plain- tiffs’ standing allegations concerning injury, and they formed a part of the factual record that the Fourth Cir- cuit subsequently found sufficient to entitle plaintiffs to summary judgment. Forest Hills Early Learning Center, Inc. v. Lukhard, 728 F.2d 230, 244-45 (4th Cir. 1984) (“Forest Hilis IT’). On April 22, 1982, on cross-motions for summary judg- ment, the district court held that the exemption for church-run child care centers had a secular purpose of accommodating potential free exercise claims and thus did not violate the First Amendment. Forest Hills Early Learning Center, Inc. v. Lukhard, 540 F. Supp. 1046 (E.D. Va. 1982). On February 7, 1984, the Fourth Circuit vacated the district court’s order granting summary judgment in favor of the state and remanded the action for further proceedings in accordance with its opinion. Forest Hills II, 728 F.2d at 247. The court held that “[t]he exemp- tion, on its face, and as a matter of law was overbroad in relation to the secular legislative purpose claimed for it’—the accommodation of free exercise rights of the exempted centers. /d. at 244. The court concluded that plaintiffs were entitled to the entry of summary judgment. However, the court was \ | | 4 reluctant to direct entry of judgment in their favor with- out determining whether and to what extent free exer- cise rights justifying the exemption, in whole or in part, did in fact exist. Since there was no evidence in the record bearing on that issue, the court remanded to per- mit ‘further evidentiary proceedings . .. devoted to-de- veloping . . . the extent of any free exercise rights had by the sectarian institutions in the exempted activities, and the nature and extent of any compelling state inter- est in nevertheless regulating those activities.” Jd. at 246. The court “conditionally” denied plaintiffs’ request for judgment and remanded the action for the limited purpose of inviting exempt centers, none of which had theretofore sought to intervene, to intervene as a class. The court directed that if church-run centers failed to satisfy the criteria for a class action or if a class were certified but failed to show the existence of any specific free exercise rights that would be infringed by specific child-care regulations, “‘the exemption should be declared wholly unconstitutional.” /d. at 246. On remand, a group of four churches, petitioners Grace Baptist Church, Tabernacle Baptist Church, Berean Bap- tist Church, and The Rock Church (“the intervening churches”), moved to intervene on behalf of a class of church-run centers. Only two other exempt centers filed affirmative responses to the district court’s notice, but neither of those centers filed motions to intervene. The intervening churches filed a motion to certify a class on October 19, 1984. They asserted that the alleged class—all centers that had obtained or filed for exemp- tions—shared a common belief that a child care program is an integral part of the church ministry, and that any state regulation of a church-run child care center violates the free exercise of religion. On January 17, 1°85, the trial court ruled that there was no basis upon which a class could be certified. Accordingly, the court entered 5 judgment in favor of plaintiffs. At no time on the first remand did the state or the intervening churches chal- lenge plaintiffs’ standing. On appeal, the state and the intervening churches challenged the merits of the district court’s order but did not attack plaintiffs’ standing. The Fourth Circuit ruled that the district. court, in granting summary judgment in favor of the plaintiffs, had “denied . . . [the interven- ing churches] any right to class certification or an op- portunity to conduct discovery, or to present evidence.” It thus remanded the proceeding a second time for the purposes stated in its first opinion. Forest Hills Early Learning Center, Inc. v. Lukhard, 789 F.2d 295, 297 (4th Cir. 1986) (“Forest Hills III’’). On remand, the churches joined in a motion to dismiss for lack of subject matter jurisdiction challenging plain- tiffs’ standing to sue on one or more of their claims. The motion to dismiss for lack of subject matter jurisdiction was denied on November 24, 1986. After a hearing on petitioner Grace Baptist Church’s motion to certify a class, the district court certified a class on January 9, 1987. The matter was tried on March 9, 1987. After post trial briefing and argument, the district court ruled that plaintiffs had demonstrated injury to support their standing, entered judgment in their favor and declared the exemption statute unconsti- tutional. Forest Hills Early Learning Center, Inc. v. Lukhard, 661 F. Supp. 300 (E.D. Va. 1987). On May 6, 1988, the Fourth Circuit affirmed the dis- trict court’s ruling on standing, relying on Arkansas Writers’ Project, Inc. v. Ragland, U.S. , 107 S. Ct. 1722, 1726 (1987). The Fourth Circuit reviewed on the merits and held the exemption did not violate the Establishment Clause. 6 REASONS FOR DENYING THE WRIT Petitioners contend that the Court should review and reverse the Fourth Circuit’s ruling on standing. They argue that the ruling below constitutes an unwarranted extension of Arkansas Writer’s Project by granting “standing” to parties who have not suffered injury and who do not fall within the prudential ‘zone of interests” protected by the Establishment Clause. Petitioners are wrong on both counts. Plaintiff-respondents established in preliminary proceedings and on summary judgment that Virginia’s disparate treatment of licensed and ex- empt centers caused them injury. As a group directly affected by Virginia’s differing treatment of non-religious centers, plaintiffs clearly fall within the zone of interests protected by the Establishment Clause. I. Plaintiffs’ Standing Was Resolved in 1981. Shortly after plaintiffs filed this action in February 1980, the state moved to dismiss the complaint for lack of standing. The district court granted the motion be- cause it found that plaintiffs’ claim of injury depended upon speculation. Forest Hills Early Learning Center, Inc. v. Lukherd, 487 F. Supp. 1887 (E.D. Va. 1980). On appeal, the Fourth Circuit concluded that plaintiffs’ standing to raise their Establishment Clause and Equal Protection Clause claims could be predicated on financial harm and remanded to allow plaintiffs to support their allegations by affidavit. Forest Hills I. After plaintiffs amended their complaint and substan- tiated their allegations by affidavit, the district court denied the state’s renewed motion to dismiss for lack of standing. See Order, August 4, 1981. The non-exempt centers’ motion for summary judgment, seeking a decla- ration that the exemption statute violated, inter alia, the Establishment Clause of the United States Constitution, vas supported by affidavits of Margaret D. Miller, James 7 A. Payne, Frederick Glantz, Paul Boyd, Inez Holloman and Stephen Jones, the same affidavits that support plain- tiffs’ standing allegations concerning injury. Those affi- davits formed a part of the factual record that the Fourth Circuit found sufficient to entitle plaintiffs to summary judgment. Forest Hills II, 728 F.2d at 233, 244-45. As the district court noted when it found that the exemption statute violated the Establishment Clause, a court would not be willing to grant summary judgment to plaintiffs unless they had successfully satisfied stand- ing requirements in both preliminary proceedings and on summary judgment. The elements for establishing standing were fully sat- isfied in this case, as both the district court and the court of appeals concluded. Had the state felt that plain- tiffs’ evidentiary support for its standing allegations was insufficient to support summary judgment in their favor, it should have opposed plaintiffs’ motion for summary judgment and cross-moved on that issue. See, e.9., United States v. SCRAP, 412 U.S. 669, 689 (1973) (if defendant thought standing allegations untrue, it “should have moved for summary judgment on the standing is- sue”) See also Gwaltney of Smithficid, Ltd. v. Chesa- peake Bay Foundation, Inc., No. 86-473, —— USS. . 108 S. Ct. 376, 385-86 (1987); Simon v. Eastern Ken- tucky Welfare Rights Organization, 426 U.S. 26, 37 n.15 and 46 n.25 (1976); NAACP, Boston Chapter v. Harris, 607 F.2d 514, 526 (1st Cir. 1979). Since the state did not controvert plaintiffs’ evidentiary support for their standing allegations on summary judgment, plain- tiffs’ standing was fully established at that point. The result reached in Lega! Aid Scciety of Alameda County-v. Brennan, 608 F.2d 1319 (9th Cir. 1979), cert. denied, 447 U.S. 921 (1980), a case cited by petitioners, is instructive. There, the original defendants “did not challenge the factual or legal basis for [plaintiffs’] stand- 8 ing either in their motion to dismiss or in their opposition to [plaintiffs’] motion for partial summary judgment.” 608 F.2d at 1333. The appellants, who were permitted to intervene for purposes of appeal, challenged plaintiffs’ standing on appeal. The Ninth Circuit ruled that al- though “‘the record would be substantially more complete had appellant been called upon to marshall the facts and law in support of standing in response to a timely chal- lenge to standing,” the record was sufficient to support standing. Id. Here, the facts in support of standing are stronger. The state did challenge plaintiffs’ standing. Plaintiffs were required to marshall facts and law to support their contentions in opposition to a motion to dismiss and in support of a motion for summary judgment. The Fourth Circuit subsequently determined that the facts presented by plaintiffs were sufficient to support summary judg- ment in plaintiffs’ favor, and only refrained from direct- ing the entry of judgment in their favor to permit churches to show that free exercise rights supported the exemption. Forest Hills II, 728 F.2d at 246-47. Plaintiffs’ standing was not questioned between Au- gust 1981, when the district court denied the state’s sec- ond motion to dismiss, and November 1986, when the churches resurrected the issue on the second remand. The issue was not raised on the appeal decided in Forest Hi'ls II, on the first remand after the churches inter- vened or on the appeal resolved in Forest Hills ITI. Plaintiffs—who had established that they were en- titled to judgment unless the exempt centers demonstrated that the child care standards would violate their free exercise of religion—should not be required to relitigate issues with parties that entered the case four years after it began. Petitioners—whose intervention at such a late stage was made possible solely by the Fourth Circuit’s invitation to present their free exercise claims—are not 9 free to relitigate issues that were previously resolved or to raise issues beyond the scope of the remand.” IL. Plaintiffs Have Standing to Challenge the Exemption As An Impermissible Establishment of Religion. The Fourth Circuit correctly held that plaintiffs have standing to challenge the exemption statute’s constitution- ality, consistent with this Court’s criteria for standing. They have suffered both religious and economic injury sufficient to establish standing. It is beyond dispute that anyone whose adherence or non-adherence to religion is used to justify disparate government action has standing to challenge that action. As Justice O’Connor has stated, “the Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person’s standing in the political community.” See Lynch v. Donnelly, 465 U.S. 668, 687 (1984) (O’Connor, J., concurring.) As the state and churches have observed, the central purpose of the Establishment Clause is to in- sure government neutrality in matters of religion. Gil- lette v. United States, 401 U.S. 437 (1971). By enacting 2 Even if the scope of the remand had not been expressly con- fined by the Fourth Circuit, the churches are precluded from relitigating issues resolved before their intervention. As that court has stated, “an intervenor is held to take the case as he finds it.” Newport News Shipbuilding and Drydock Co. v. Peninsula Ship- builders’ Ass’n, 646 F.2d 117, 122 (4th Cir. 1981). An intervenor is not free to challenge prior orders or judgments. See, e.g., Para- dise v. Prescott, 585 F. Supp. 72, 75 n.4 (M.D. Ala. 1983), aff'd, 767 F.2d 1514 (11th Cir. 1985), aff'd sub nom. United States v. Paradise, 480 U.S. 149 (1987). Rather, he is bound by the “law of the case” doctrine. Gindes v. United States, 740 F.2d 947 (Fed. Cir.), cert. denied, 469 U.S. 1074 (1984); Dickinson v. Auto Center Mfg. Co., 733 F.2d 1092, 1096 (5th Cir. 1983); Mid-Eastern Elec- tronics, Inc. v. First National Bank, 455 F.2d 141, 143 (4th Cir. 1970). As intervenors who have entered this proceeding following several appeals, the churches are bound by the law of the case regarding plaintiffs’ standing. Capital Investors Co. v. Estate of Morrison, 584 F.2d 652, 654 (4th Cir. 1978), cert. denied, 440 U.S. 981 (1979). 10 the exemption statute, Virginia decided to treat church- run child eare centers differently from centers that are not affiliated with a religious institution, even if licensed centers, such as plaintiff Holloman’s, provide religious training. This differential treatment was clear to the Fourth Circuit. In 1984, it found: that the non-exempt centers had to do no more than hold up the challenged exemption for judicial scru- tiny to demonstrate its palpable, facial, non-neutral- ity in respect of religion; the exempted activities are, by definition, only those of ‘religious institutions’ and the substantiality of the degree of favor con- ferred upon religion in relation to non-religion is equally palpable. Forest Hil’s 11, 728 F.2d at 241 (footnote omitted). The disparate treatment imposed ,on licersed centers and the substantial degree of faver conferred upon religious cen- ters is precisely the kind of injury that supported stand- ing in eases such as Arkansas Writers’ Project, Inc. v. Raaland, US. - , 107 S. Ct. 1722, 1726 (1987) ; Valley Forge Christian College v. Americans United for Separat > an? State, Ine., 454 U.S. 464 1982); Simon v. Eastern Kentucky Welfare Rights Or- viization, 426 U.S. 26 (1976); and Warth v. Seldin, riters Project. for example, the Court that non-exempt magazines had standing to chal- lenge a statute granting a sales tax exemption granted to other similarly situated magazines. 107 S. Ct. at 1726. Court emphasized that “we have considered claims vthers similarly situated were exempt from the op- of a state law adversely affecting the claimant . ferous cases]. See, e.g., Armco Inc. v. Hardesty, 467 U.S. 6388 104 S. Ct. 2620, 81 L. Ed. 540 (1984) ; “arey v. Brown, 447 U.S. 455, 100 S. Ct. 2286, 65 L. Ed. 2d 263 ©1980): Police Dept. of Chicago v. Mosley, 408 U.S. 92, 92 S. Ct. 2286, 33 L. Ed. 2d 212 (1972).” Id. 11 Similarly, in Valley Forge, the Court concluded that standing may be predicated on either economic injury or “spiritual injury.” The Court’s indication that “spiritual injury” would confer standing in no way limits standing to plaintiffs claiming such injury. Rather, it serves to emphasize that “injury of any kind, economic or other- wise, [is] sufficient to confer standing.” 454 U.S. at 486 (emphasis in text, footnote omitted). The Court in Valley Forge was concerned only that a plaintiff demonstrate more than an interest shared with all citizens that a state faithfully adhere to the Constitution. Jd. at 482. Here, plaintiffs are not simply citizens concerned in the abstract with Virginia’s adherence to the Constitu- tion. They are within the group directly subjected to disparate government treatment as a direct consequence of their lack of religious affiliation. Thus, they have a special and far greater interest in challenging the exemp- tion than citizens having only an abstract concern with the state’s faithful adherence to the Constitution. They clearly fall within the zone of interests protected by the Establishment Clause. See Valley Forge Christian Col- lege, 454 U.S. at 482. Moreover, a favorable decision for plaintiffs would remedy their injuries. If the statute were declared un- constitutional, the palpable non-neutrality present on the face of the statute would be eliminated. All child care centers, regardless of religious affiliation, would then be treated by the state in the same manner, as they had been for more than thirty years before the exemption was enacted. Thus, as determined seven years ago, plain- tiffs have standing to challenge the constitutionality of the exemption statute. 12 CONCLUSION For the reasons stated above, the petition for a writ of certiorari should be denied. Respectfully submitted, JOHN VANDERSTAR (Counsel of Record) COVINGTON & BURLING 1201 Pennsylvania Avenue, N.W. Washington, D.C. 20044 (202) 662-5540 JOHN E. HEINTZ STEPHANIE E. HUMBERT POPHAM, HAIK, SCHNOBRICH & KAUFMAN, LTD. 1800 M Street, N.W. Suite 300 South Washington, D.C. 20036 (202) 828-5300 Counsel for Respondents --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0538%3A3. Public record. Not legal advice.