Jurisdictional Statement — Wolman v. Walter

MAY

Supreme Court of the United States

Ocroser Term, 1976

Benson A. Woman, et al.,

Appellants,

— V.—

Martin W. Essex, et al.,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTH™@RN DISTRICT OF OHIO

EASTERN DIVISION

JURISDICTIONAL STATEMENT

NELSON G. Karu JosHua J. KANCELBAUM

American Civil Liberties Union 2121 The Illuminating Building

Foundation Cleveland, Ohio 44113

203 East Broad Street

Columbus, Ohio 43215 Dona_Lp M. RosBiner

Investment Plaza

Me.vin L. WULF Cleveland, Ohio 44114

American Civil Liberties

Union Foundation

22 East 40th Street

New York, New York 10016

Attorneys for Appellants

em

i eee

TABLE OF CONTENTS

eee Ge Be 4. 0 6-686 04 4608 os vee

Jurisdictional Statement ..............

Opinion BetOW cccccccccvccccccccceses

PAPEBGICTION wc cccccccccccccccccccccees

ey I es ink ceigw be eee edu

Questions Presented ....ccccccccccces

ra 2 oe Cee... v6 eeeeebénes

A.

B.

FENOEY scccccctccccsetecéions

The Factual Record ..........

The Questions Are Substantial ........

L.

Il.

III.

The decision below is in sub-

stantial conflict with the de-

cisions of this Court in Meek

v. Pittenger and Marburger v.

Public Funds for Public Schools

CS WW PENG ccccceccccesecs

The issue is of nationwide con-

Ge aia bre ot eee hl bees 6 bene

The primary effect of the act

is to benefit religion and to

ll

12

12

14

ii

Page

foster excessive governmental

entanglement with religion .... 15

A, The Instructional Materials

and Equipment Loan Provi-

sions Violate the Establish-

ae ere 15

B. Psychological and Speech

and Hearing Diagnostic

Services Violate the Estab-

lishment Clause .......... 21

v

C. Therapeutic Psychological

and Speech and Hearing

Services, Guidance and

Counseling Services, Re-

medial Services and Serv-

ices for the Handicapped

Violate the Establishment

Clause Except to the Ex-

tent Furnished Within Pub-

lic Schools As Part of a

General Program ......... 26

D. Standardized Testing and

Scoring Services Violate

the Establishment Clause . 30

E. Field Trip Transportation

Violates the Establishment

Ce. cenaneushvuckess 31

F, The Programs Authorized

by SB 170 Foster Excessive

Political Entanglement .... 32

=

iii

Page

G. The Textbook Loar Provi-

sions of SB 170 Violate

the Establishment Clause . 34

COMGUNIIGR -sicccccceeriescccecsosees o

Appendices:

Order and Opinion Below ......... Al

EE SE hv 6S vk dees cb ¥ewes A34

Ee er ree A39

Table of Authorities

Cases:

Board of Education v. Allen, 392 U.S.

ee CED 6 'nh6b 6065 40460005 00004080 34

_Committee for Public Education v.

Nyquist, 413 U.S. 756 (1973) 15,19, 29, 33

Everson v. Board of Education, 330

ia (e Ce C2. one eaceceeenekes 31, 32

Flast v. Cohen, 392 U.S. 83 (1968). 3

Hunt v. McNair, 413 U.S. 734(1973). 20

Kosydar v. Wolman, 353 F. Supp. 744

(S.D. Ohio, 1973), aff'd sub nom.

Grit v. Wolman,413 U.S.901(1973). 15,33

iv

Page

Lemon v. Kurtzman, 403 U.S. 602

CAGTT) ccccccsecesovesseess 21, 28, 31, 32

Levitt v. Committee for Public Educa-

tion, 413 U.S. 472 (1973)....cccce 24, 30

Marburger v. Public Funds for Public

Schools of New Jersey, 358 F.Supp.

29 (N.J. Dist. 1973), aff'd 417 U.S.

GER CHIPPED ccccccceces 12,13,14,15,24, 25

Meek v. Pittenger, 421 U.S. 349

(1975). 4,5, 10,12, 13, 14, 15, 16, 17, 18,19, 20

21, 22, 23, 24, 25, 26, 30, 31, 32, 33, 34

Sloan v. Lemon, 413 U.S. 825 (1973) 15

Wolman v. Essex, 342 F.Supp. 399

(S.D. Ohio E.D. 1972), aff'd 409

U.S. GOB (R97) cv cccesscvesscsess 15, 33

Wolman v. Essex (unreported, S. D.

Ohio, 1974), vacated and remanded

421 U.S. GES (E9IS) cccccsvsvecees 4,14

Statutes:

Ohio Kevised Code §3317.06 ....... passim

Ohio Revised Code §3317.062 ..... 4,16

28 U.S.C. GRESS cccccccccscessese 3

28 U.S.C, GRE ccccccvccscucseus 3

28 U.S.C. G2RBE - cccccccovcescnees 3

ee _

SUPREME COURT OF THE UNITED STATES

October Term, 1976

No.

BENSON A. WOLMAN, et al.,

Appellants,

-VS-

MARTIN W. ESSEX, et al.,

Appellees.

On Appeal From The United States District Court

For The Southern District of Ohio

Eastern Division

JURISDICTIONAL STATEMENT

Appellants, Benson A. Wolman, et al.,

appeal from the order of the United States

District Court for the Southern District of Ohio,

Eastern Division (hereinafter sometimes the

"District Court") entered by a three-judge dis-

trict court on July 21, 1976,upholding the con-

stitutionality of Ohio Revised Code §3317.06 and

denying to appellants (plaintiffs in the court

below) a permanent injunction to restrain the

-2-

enforcement of that statute which provides

various programs for the benefit of sectarian

private schools. 1/ Appellants submit this

Statement to show that the Supreme Court of the

United States has jurisdiction of the appeal and

that a substantial question is presented.

Opinion Below

The order and opinion of the District

Court are not reported. They are set out in

the Appendix, infra, pp. Al-A33.

1/ The following are the parties to this

appeal: Appellants (Plaintiffs below who are

citizens and taxpayers of Ohio and the United

States) are Benson A. Wolman, Frederick

Chambers, Patricia J. Keenan, Barbara Kaye

Besser, Nancy R. Terjesen, and Marjorie

Wright. Appellees who were defendants below

are Martin W. Essex, Superintendent of Public

Instruction of the State of Ohio, State Board of

Education, Board of Education of the City School

District of Columbus, Ohio, Gertrude W.

Donahey, Treasurer oi the State of Ohio and

Thomas E. Ferguson, Auditor of the State of

Ohio, as well as the following named parents

and next friends of pupils enrolled in sectarian

schools: James Grit, Ewald Kane, Helen S.

Koloski and Alvia Shames (substituted for Hanna

Feigenbaum by order dated January 20, 1976).

of.

Jurisdiction

Appellants, citizens and taxpayers of Ohio

and the United States, filed their complaint in

the District Court on November 18, 1975 alleg-

ing that a state statute, Ohio Revised Code

§3317.06, violates the First and Fourteenth

Amendments of the United States Constitution by

effecting an establishment of religion. The

complaint demanded preliminary and permanent

injunctions against the enforcement of the

statute, as well as other relief.

On December 22, 1975, pursuant to 28

U.S.C. §2284, a three-judge court was conven-

ed to hear and determine the suit. 2/

The judgment sought to be reviewed was

entered by the three-judge district court below

on July 21, 1976, upholding the constitutionality

of the state statute and denying an injunction

against its enforcement. Notice of appeal to

this Court was filed in the District Court on

August 10, 1976,

Jurisdiction of the appeal is conferred on

this Court by 28 U.S.C. §§1253 and 2281, and

Flast v. Cohen, 392 U.S. 83 (1968).

2/ The designation of the three judges

was amended by further order on May 19, 1976,

substituting Hon. Robert M. Duncan, District

Judge for Hon. Carl B. Rubin, District Judge.

The other participating judges were Hon. Joseph

P. Kinneary, District Judge and Hon. John W.

Peck, Circuit Judge.

-4-

Statute Involved

The statute challenged in this litigation,

Ohio Revised Code §3317.06 (also known as

Senate Bill 170 and hereinafter sometimes call-

ed "SB 170" or the "Act") was signed into law

on August 29, 1975. It generally replaces and

expands the parochial assistance programs of

former Ohio Revised Code §3317.062 which was

invalidated 3/on authority of Meek v. Pittenger,

421 U.S. 349 (1975) in the aftermath of this

Court's decision of May 27, 1975 which vacated

and remaaded the District Court's previous

judgment upholding the prior Ohio statute.

See Wolman v. Essex, 421 U.S. 982, 95 S.

Ct. 1985 (1975). The Act ic several pages

long and is appended to this jurisdictional

statement (pp. A36-A40 infra.). Rather than

quote it fully at this point, the relevant pro-

visions will be summarized in the order in

which they appear.

Section A provides for textbook loans to

pupils or their parents.

Section B authorizes the school districts

"to purchase and to loan to pupils attending

3/By order of the District Court dated

November 17, 1975, in Wolman v. Essex,

No. 73-292 (S.D. Ohio E.D.). The order,

entered by consent of the parties, found that

the prior Ohio law was not constitutionally

different from the law stricken down in Meek

v. Pittenger, supra and declared it violative of

the Establisnmers lause.

-"

nonpublic schools . . . or to their parents upon

individual request, such secular, neutral and

nonide ological instructional materials as are in

use in the public schools within the district and

which are incapable of diversion to religious

use and to hire clerical personnel to administer

such lending program." As will hereinafter be

discussed in further detail, it is stipulated 4/

that this section authorizes the same materials

as had been authorized by the auxiliary

materials provisions of the previous Ohio law

which was stricken down in the wake of Meek

v. Pittenger, S. 21.

Section C is identical to Section B, except

that it authorizes instructional equipment instead

of materials. Like Section B, the equipment

available under this section is the same as the

equipment which was available under the pre-

vious law to the extent it was upheld by the

district court below prior to review by this

Court (i.e., except to the extent it permitted

materials and equipment which were regarded

as susceptible of diversion to religious uses).

Section D authorizes the provision of

"speech and hearing diagnostic services to

pupils attending nonpublic schools . . ." Such

services are to be "provided in the nonpublic

school attended by the pupil receiving the service."

4/ The facts applicable to this case have

been stipulated by the parties ard references to

pertinent paragraphs of the stipulation are cited

"S" followed by the applicable paragraph number.

o> «Je

oe ee

Section E provides for "physician, nursing, | Section L provides for field trip trans-

dental and optometric services" within the non- | portation.

public schools. Subsequent unlettered sections flesh out

Section G provides for "therapeutic | administrative and fiscal detail. Most

psychological and speech and hearing to pupils | pertinently:

attending nonpublic schools within the district." | 2

Unlike a. pana services, these services The duties of clerical personnel, hired

are to be "provided in the public school, in | pursuant to divisions (B) and (C) of this

public centers, or in mobile units located off of : section, shall include distribution of

the nonpublic premises as determined by the | loan request forms, receipt and cata-

state Department of Education." Transportation loging of loan requests, inventory or

to public sthools or public centers at public instructional materials and instructional

expense is authorized equipment to pupils or their parents,

retrieval of such instructional equipment

Section H,provides for "guidance and and maintaining custody and storage of

counseling services" to be performed in public | these items. The instructional material

schools, public centers or mobile units, in 7 and instructional equipment authorized

terms similar to those employed in Section G. | to be loaned pursuant to divisions (B)

) and (C) of this section may be stored

Section I provides for "remedial services” | on the premises of the nonpublic school

to be performed in public schools, public cen- | of attendance and the clerical personnel

ters or mobile units, in terms similar to those hired for administration of the lending

employed in the two preceding sections. program may perform their services

upon the premises of the nonpublic

school when, in the determination of

the stace Department of Education, it is

necessary and appropriate for efficient

implementation of the lending program.”

Section J] authorizes the district "to supply

for use by pupils attending nonpublic schools. . °

such standardized tests and scoring services as

are in use in the public schools of the state."

The remainder of the provisions of the Act

limit benefits to those which are available to

pupils attending the public schools within the

district; require the furnishing of benefits and

the admission of students and faculty hiring to

be nondiscriminatory as to race, creed, color

Section K authorizes "programs for the

deaf, blind, emotionally disturbed, crippled,

and physically handicapped children attending

nonpublic schools within the district."' These, |

like the other remedial and therapeutic programs, |

are to be furnished off premises in public

schools, public centers or mobile units.

-

;

;

'

;

i

— LAE Ce TE ae ee ee ee

or national origin; prohibit the provision of

services, materials or equipment for use in

religious courses, devotional exercises,

religious training, or any other religious

activity; and provide funding limitations.

Questions Presented

l. Does a state statute which provides

for the expenditure of public funds to furnish

auxiliary materials and equipment for use with-

in sectarian schools, including materials and

equipment which cannot be loaned to such

schools without violating the Establishment

Clause of the First Amendment, satisfy the re-

quirement of the Establishment Clause by

authorizing the lending of such materials and

equipment to the pupils and parents of pupils

enrolled in such schools where such statute

permits the materials and equipment to be

stored on the sectarian premises and serviced

there by public personnel, and where the

materials and equipment so loaned include items

which cannot practicably be distributed to indi-

vidual pupils, but will be loaned to them as a

group?

2. Does a state statute which provides

for the expenditure of public funds to furnish

diagnostic services which include speech and

hearing services and psychological services 5/

5/ As well as physician, nursing, dental,

and optometric services which are not

challenged in this suit.

a EE NT aE eT

-9-

on the premises of private sectarian schools

satisfy the requirements of the Establishment

Clause of the First Amendment?

3. Does a state statute which provides

for the expenditure of public funds to furnish

therapeutic and remedial services, guidance and

counseling and other programs including ser-

vices and programs which cannot be publicly

provided on sectarian premises without violating

the Establishment Clause of the First Amend-

ment, satisfy the requirements of the Establish-

ment Clause by authorizing the performance of

such services by public personnel at locations

off the sectarian premises which include mobile

units parked nearby, and undefined public cen-

ters including centers used for such purposes

only for the benefit of the sectarian beneficiar-

ies of the services?

4, Does a state statute which provides

for the expenditure of public funds to furnish

standardized tests and scoring services for use

_in private sectarian schools satisfy the require-

ments of the Establishment Clause of the First

Amendment?

5. Does a state statute which provides

for the expenditure of public funds to furnish

field trip transportation to classes attending

private sectarian schools satisfy the require-

ments of the Establishment Clause of the First

Amendment?

6. Does a state statute which provides

for the expenditure of public funds to lend text

-10-

books to pupils or parents of pupils attending

private sectarian schools satisfy the require-

ments of the Establishment Clause of the First

Amendment?

Statement of the Case

A. History.

SB 170, challenged in this action, was

signed into law on August 29, 1975, before the

Distriet Court below could consider and enter

its remand decision on the previous statute,

The biennial appropriation for SB 170 was

eighty-eight million dollars, even larger than

the eighty-one million dollars appropriated for

its predecessor.

Appellants filed their complaint in this

action on November 18, 1975, challenging the

First Amendment validity of the new law; and

on plaintiffs' motion, on December 10, 1975,

the District Court granted a temporary restrair-

ing order against implementation of the Act.

This restraining order was modified by consent

order on February 13, 1976, to permit text

books to be purchased from public funds and

loaned to pupils of nonpublic schools or their

parents to the extent such text book loans were

permitted by this Court's decision in Meek v.

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

The designated panel of three judges

(described at p.3 n.2 , supra) heard the

case on June 1, 1976, on the briefs and

Pe a ee eee ee eee nes

-||-

arguments of counsel and a comprehensive

factual stipulation. On July 21, 1976, the

District Court announced its decision and

opinion upholding the Establishment Clause

validity of the Act,

B. The Factual Record.

During the proceedings below the imple-

mentation of the Act was generally enjoined and

the position of the appellants was (and continues

to be) that the Act is unconstitutional on its

face. Nevertheless, on March 16, 1976, the

parties filed a comprehensive stipulation of

facts which, together with its appended exhibits,

constitutes the factual record. Ihe stipulation

contains material relevant to the manner in

which Ohio's Department of Education intended

to implement the Act, and relevant to the

appropriateness of Supreme Court review.

All procedural matters relevant to

_justiciability of the issue and standing of the

parties are stipulated (S-1 through S-6). The

sectarian character of nonpublic education in

Ohio is stipulated in terms comparable to those

upon which prior adjudications of parochial aid

plans in this Court have been based (S-7

through S-13),.

The general mechanical operation of the

statute is described in S-14 through S-16,

Most significantly, the Act is implemented

through the 620 local school districts of Ohio,

and there is no central collation of information

-]2-

as to the character of the materials and services

provided. It is thus realistically impossible for

a concerned citizen or litigant to discover how the

funds are used, except on a sample basis.

The intended methods of implementing the

various specific programs are described (S-17

through S-38). In view of their prolixity, these

stipulated facts will be discussed infra in connec-

tion with the discussion of the specific programs

to which they relate, rather than summarized

here. It is finally stipulated that because the

"new laW has not been implemented. . . the

stipulation can only go to the intent and policies

of the Department of Education rather than to the

precise manner in which that intent of policy will

or will not be carried out in all instances, ''(S-39).

The Questions Are Substantial

lL.

The decision below is in substantial

conflict with the decisions of this

Court in Meek v. Pittenger 6/and

Marburger v. Public Funds for Pub-

Tic Schools of New Jersey. 77

67 421 U.S, 349 (1975).

7/ 358 F. Supp. 29 (N.J. Dist. 1973),

aff'd 417 U.S. 961 (1974).

-13-

Last year this Court struck down

Pennsylvania's statutory program for furnishing

many programs which are effectively, and often

procedurally, similar to the programs offered

under SB 170 challenged in this action. Meek

v. Pittenger, 421 U.S. 349 (1975). In Meek

this court explicated its earlier decision to like

effect in Public Funds for Public Schools v.

Marburger, 358 F. Supp. 29 (N.J. Dist. 1973),

aff'd ry U.S. 961 (1974). Such programs

prohibited by Meek and Marburger and resur-

rected in Ohio's current Taw include programs

for the furnishing of auxiliary equipment and

materials for use within the parochial schools,

and the furnishing of a wide variety of services

by public personnel for the benefit of those

attending parochial schools.

As this Statement will further elaborate

at Section III, A through G, pp. 14-34, infra,

Ohio's SB 170 attempts to avoid the Meek and

Marburger holdings via a few simple strategems

which produce slight technical differences in the

wording of the law, but little meaningful change

‘from the results already prohibited by this

Court as violative of the Establishment Clause.

The principal ploy involved in the

differentiation of the materials and equipment

program from previous invalid programs is that

the property is now ostensibly loaned to pupils

and parents rather than to the schools. The

principal variant in the services programs is

to limit services on the parochial premises to

equipment care and diagnostic services, and to

remove the therapeutic and remedial services

oligo

to an allegedly neutral site. As the remainder

of this Statement will urge in further detail,

the materials and equipment loan to pupils is

merely a sham; the limitation of services on

sectarian premises to "diagnostic" services

does not ameliorate the aid to religion and

excessive entanglement engendered by such

programs under prior unconstitutional statutes;

nor does the furnishing of therapeutic services

on allegedly neutral sites which on the one hand

constitute the sham of curbside service to the

parochial schools and, on the other hand, pro-

mise to devote such public buildings as fire-

houses to the special educational use of

parochial constituencies, avoid the pitfalls of

previous invalid auxiliary service laws.

In short, Ohio's latest effort to assist

religious school amounts to an end run around

the Meek and Marburger holdings of this Court

in a manner which requires full review.

Il.

The issue is of nationwide concern.

Programs of state aid to religious private

schools quickly spread from state to state. The

history of parochial assistance litigation in this

Court demonstrates that each decision invalidat-

ing a particular legislative scheme has had

multi-state significance. Compare, for example,

Meek v. Pittenger, supra, Public Funds for

Public Schools v. Marburger, supra, and

Wolman v. Essex, 421 U.S. 982, 95 S. Ct.

1985 (1975) (auxiliary services and materials);

-15-

Committee for Public Education v. Nyquist, 413

5S. ; Sloan v. Lemon, 413 U.S. 825

(1973); Wolman v. Essex, 342 F. Supp. 399

(S.D. Ohio E.D. 1972) aff'd 409 U.S. 808 (1972);

and Kosydar v. Wolman, 353 F. Supp. 744

(S. D. Ohio 1973) aff'd sub nom Grit v. Wolman,

413 U.S. 901 (1973) (tuition reimbursement and

tax credits).

The District Court approval of the new

Ohio assistance plan, which achieves results

prohibited by Meek and Marburger will un-

questionably be adopted across the United

States. In order to prevent the widespread

entrenchment of these programs of question-

able First Amendment consequence, Supreme

Court consideration of their validity is nec-

essary and timely.

IIL.

The primary effect of the Act is

to benefit religion and to foster

excessive governmental entangle-

ment with religion.

A. The Instructional Materials and Equipment

Loan Provisions of SB 170 Violate the

Establishment Clause.

In Meek v. Pittenger, this Court struck

down Pennsylvania's statutory program for

furnishing instructional materials and equipment.

421 U.S. at 366. The Pennsylvania law defined

instructional equipment and materials in such a

way as to include substantially the same equip-

-16-

ment and materials which could be furnished under

Ohio's previous law, the now superseded R.C.

Sec, 3317.062. The definition of "equipment" in

the Pennsylvania Act included:

“projection equipment, recording

equipment, laboratory equipment, and

any other educational secular, neutral,

non-ideological equipment. . ."’

421 U.S. at 354 n. 4.

The definition of ''material” included:

". . .books, periodicals, documents,

pamphlets, photographs, reproductions,

pictorial or graphic works, musical

scores, maps, charts, globes, sound

recordings, including but not limited to

those discs and tapes, processed slides,

transparencies, films, filmstrips,

kinescopes and video tapes, or any other

printed and published materials of a

similar nature. . . The term includes

such other secular, neutral, non-

ideological materials as are of benefit

to the instruction of nonpublic school

children and are presently or hereafter

provided for public school children of

the Commonwealth, " Ibid.

It is stipulated that (except for items allegedly

incapable of religious use) the same equipment

and materials will be available under SB 170 (see

S-21), as was available under the previous

auxiliary services and materials law. The list

.

a a

off.

set forth in the stipulation discloses that virtually

all the items available under the Pennsylvania

instructional equipment and material provisions

invalidated in Meek are available under Sections B

and C of SB 170.

The only noteworthy differences between

Sections B and C of Ohio's law and the invalid pro-

visions considered in Meek are that (i) Ohio's

enactment expressly provides that only material

and equipment which is "incapable of diversion to

religious use"’ may be furnished; and (ii) the

material and equipment is ostensibly "loaned" to

the pupils or their parents, rather than loaned to

the nonpublic school.

1. The restriction to materials and equipment

incapable of diversion to religious use is insigni-

ficant and was rejected in Meek v. Pittenger.

While Ohio's SB 170 expressly contains the

restriction against furnishing materials and

equipment readily capable of diversion to religious

use in the body of the Act, whereas Pennsylvania's

law did not, the efficacy of such a restriction to

save the measure from First Amendment challenge

was explicitly rejected in Meek v. Pittenger. The

district court in Meek, 8/ had held the furnishing

of instructional materials and equipment to be

8/ As well as the district court in the

previous Ohio litigation, see Wolman v. Essex,

F. Supp. (S.D. Ohio 1974), vacated

and remanded 421 U.S. 982 (1975).

-18-

constitutionally acceptable except to the extent

that the statute authorized the loan of equipment

"which from its nature can be diverted to religious

purposes"--for example, projectors and record-

ing equipment. 421 U.S. at 357.

Thus, in Meek, only the supplying of

instructional equipment and materials ostensibly

incapable of religious diversion was at issue.

This Court so noted at 421 U.S. p. 357, n. 7.

The statutory limitation requiring that loans be

limited to materials and equipment incapable of

diversion adds no element which has not been

passed upon by the Supreme Court in a manner

adverse to the defendants. 9/

2. The fact that the materials and equipment

are to be ostensibly loaned to pupils or parents

is a constitutionally insignificant sham.

9/ The stipulation recites that "it is

expected that materials and equipment loaned to

pupils or parents under the new law will be similar

to. . . former materials and equipment except to

the extent that the law requires that materials and

equipment capable of diversion tc religious issues

will not be supplied. Plaintiffs reserve the right

to argue that the two stated differences are not

significant and that the restriction against supply-

ing materials and equipment incapable of repo

diversion cannot in fact be implemented. S-21.

(Emphasis added)

—— soe

-19-

The District Court below found that the

distinction between lending materials and equip-

ment to parochial schools and lending them to the

student body was constitutionally decisive and

approved this portion of SB 170 on that basis.

(Opinion, App. p. Al5-17). However, in Committee

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

(1973), this Court noted that:

"[t]here can be no question that these

grants could not, consistently with the

Establishment Clause, be given directly

to sectarian schools... In the absence

of an effective means of guaranteeing

that the state aid derived from public

funds will be used exclusively for

secular, neutral, and nonideological

purposes, it is clear from our cases

that direct aid in whatever form is

invalid. "" 413 U.S. at 780.

"By reimbursing parents for a portion

of their tuition bill, the State seeks to

relieve their financial burdens sufficient-

ly to assure that they continue to have the

option to send their children to religion-

oriented schools... The effect of the

aid is unmistakably to provide desired

financial support for nonpublic, sectarian

institutions." Ibid.

While SB 170 purports to limit the aid to so-called

secular, neutral and nonideological materials and

equipment, the teaching of Meek v. Pittenger is

that the effort to limit aid to the secular portion

of the school's program is illusory in view of the

-20-

"pervasive" and "inextricably intertwined"

character of the religious involvement of the

parochial schools. 421 U.S. at 366; and see Hunt

v. McNair, 413 U.S. 734, 743 (1973). For this

reason the legislative feint of lending to students

— _— does not change the result decreed in

eek,

Under SB 170 there is no difference between

a loan to the school and a loan to the pupils or

parents, First, the materials and equipment to

be loaned are not limited to items which can be

meaningfully distributed to individual pupils, such

as textbooks. The pupils can collectively borrow

laboratories, maps and globes, posters, gymnas-

tic equipment, sewing machines and a host of

other items. See S-21 and Exh. C thereto.

Second, the statute expressly authorizes

the storage of these materials and this equipment

on the nonpublic school premises. While the

lending is to be initiated by "individual request"

it is naive to believe that what is requested will

not be determined by the requirements of the

nonpublic school administration and faculty.

The net result is that while the pupils or

their parents may be the technical bailees of the

loaned equipment and materials, the equipment

and materials will be deployed in exactly the same

manner as under the prior law pursuant to which

they were loaned to the school. 10/

10/ The Act further authorizes (and it is

stipulated that the authority will be exercised,

-41-

The conclusion is compelled that Sections

B and C of SB 170 violate the Establishment Clause.

Without meaningful variation they provide the same

program for the furnishing of instructional

materials and equipment to sectarian institutions

which is barred by Meek v. Pittenger.

B. Psychological and Speech and Hearing

Diagnostic Services Provided by SB 170

Violate the Establishment Clause.

While appellants have conceded the facial

constitutionality of physician, nursing, dental and

optometric services provided under the Act,

psychological services, and to only a lesser extent

speech and hearing services, provideu within the

parochial schools, stand on a different footing.

Meek v. Pittenger and Marburger prohibit

the furnishing of | oubficly funded personnel,

except certain health personnel, on parochial

see S-22) public personnel to distribute loan

request forms, receive and catalog the requests,

maintain inventories, distribute the material and

equipment, collect the equipment, maintain

custody and storage of the material and equipment

and perform all other duties necessary for the

efficient implementation of the program. Under

the Act, these functions can be performed on the

premises of the nonpublic school. These provi-

Sions alone should suffice to invalidate the program

programs for excessive entanglement. See

Lemon v. Kurtzman, 403 U.S. 602 (1971).

-29-

school premises.

The Pennsylvania law considered in Meek,

called for "auxiliary services" to be performed by

public employees on parochial school premises,

including remedial and accelerated instruction,

guidance counseling and testing, and speech and

hearing services. 421 U.S. at 367. The

Pennsylvania public institutions, like those of

Ohio, provided no surveillance to confirm that the

law's secular limits were being observed, because

it was felt that such surveillance was unnecessary

to assure that a member of the staff had not

"succumb[ed] to sectarianization of his or her

professional work." 421 U.S. at 368, quoting

from the district court opinion, 374 F. Supp. at

657. This Court rejected this position.

", . .«[D]ecisions of this Court make

clear that the District Court erred in

relying entirely on the good faith and

professionalism of the secular teachers

and counselors functioning in church-

related schools to ensure that a strictly

nonideological posture is maintained. "

421 U.S. at 369.

Regarding the auxiliary character of the

services to be performed by these publicly sub-

sidized teachers, this Court noted:

"That Act 194 authorizes state-funding

of teachers only for remedial and excep-

tional students, and not for normal

students participating in the core

curriculum, does not distinguish this

-23-

case from Earley v. DiCenso and Lemon

v. Kurtzman, supra. Whether the subject

is ‘remedial read ing, ' advanced reading,’

or simply ‘reading, a teacher remains a

teacher, and the = er that religious

doctrine will become intertwined with

secular instruction persists. The

Tikelihood of inadvertent fostering of

religion may be less in a remedial

arithmetic class than in a medieval

history seminar, but a diminished pro-

bability of imper miss conduct is not

sufficient: “Ihe State must be certain,

given the Religion Clauses, that subsi-

dized teachers do not inculcate religion. '

403 U.S. at 619. And a state-subsidized

guidance counselor is surely as likely as

a state-subsidi chemistry teacher to

fail on occasion to Separate religious

instruction and the advancement oO

religious beliefs from his secular

educational responsibilities.” 421 U.S.

at 370-371. (Emphasis added and foot-

note deleted. )

The foregoing portion of the Meek opinion

establishes that the First Amendment strictures

against public funding of services to be performed

by public employees on parochial premises extend

to "counselors" and other "remedial" personnel

as well as to teachers. In tacit recognition of this

principle, the framers of SB 170 removed the more

patently remedial and therapeutic services from

the parochial premises to the curbside. And;

while presumably the most narrowly physical

health services such as physician, nursing, dental

-24-

and optometric are protected by the Supreme

Court's dictum approving such services (see 421

U.S. at 371 n, 21), no such protection should be

extended to psychological and speech and hearing

services.

Psychological diagnosis:

The functions of diagnostic psychological

personnel include, in addition to aptitude testing,

"individual measures to determine social and

behavioral adaptability . . . interviewing and.

projective procedures, " ‘S-28(b). On the face of

this description, these functions include a degree

of intercommunication between the diagnostician

and the pupil, and an intrusion into the social and

behavioral aspects of the pupil's personality,

which provides at least as great an opportunity

for religious influence as does the guidance

counseling, testing, and remedial instruction

prohibited in the parochial schools by Meek and

Marburger, supra, and Levitt v. Committee for

Public aS 413 U.S. 472, 93S. Ct. 2814

(1973).

The conclusion is compelled that it is ex-

cessively entangling for experts employed by the

government to tinker with the attitudes and per-

sonality of a pupil in the setting of a religious

institution, There is too great a danger, for

example, that irreverent or heretical attitudes

and beliefs will be interpreted as psychologically

deviant or antisocial.

= —

-25-

Speech and hearing diagnosis:

Despite this Court's dictum in Meek that a

program of diagnostic speech and hearing services

"seems to fall within that class of general welfare

services for children that may be provided by the

State. . ."' 421 U.S, at 371 n. 21, there is reason

to prohibit state sponsored speech and hearing

services in parochial schools as well. In Meek,

speech and hearing diagnostic services were

stricken down because they would have been left

standing alone; and notwithstanding the Pennsylvania

law's severability clause, the Court ruled that the

legislature "would not have passed the law solely

to provide such aid." Ibid. Footnote 21 of Meek

v. Pittenger remains dictum and the matter

remains open for decision by this Court, In

drawing the line between general welfare provi-

sions and impermissible remedial education

measures prohibited by Meek and Marburger, it

would appear logical to consider the opportunity

for sectarian influence and abuse. See Meek,

421 U.S. at 369. Unlike a physician or a nurse

whose contact with the child is ordinarily limited

* to a physical appraisal and a minimal amount of

verbal communication concerning the child's

physical condition, the speech and hearing staff

can be expected to communicate with a pupil at

length in order to assess the child's communica-

tive abilities.

It is no more sensible to lump speech and

hearing diagnosticians together with doctors and

nurses than with remedial reading instructors and

other remedial services personnel who cannot,

under Meek and Marburger, perform their

services within a parochial school.

-26-

C. Therapeutic Psychological and Speech and

Hearing Services, Guidance and Counseling

Services, Remedial Services and Services

for the Handicapped Provided by SB 170

Violate the Establishment Clause Except to

the Extent Furnished Within Public Schools

As Part of a General Program.

The therapeutic, counseling and remedial

services encompassed by Sections G, H, I and K

plainly extend far beyond the neutral health

seryices approved by dictum in prior Supreme

Court decisions. They include such specifically

condemned programs as remedial reading and

guidance counseling. Compare S-31 through 36

with Meek v, Pittenger, 421 U.S. at 367. 11/

Accordingly, these programs stand or fall on the

constitutional effect of diverting them from within

the school to a public school, or to a public center

or mobile unit stationed off the nonpublic premises.

While the furnishing of governmentally sub-

sidized services to pupils enrolled in a public

school on the same basis as such services are

provided for public school pupils in that school

11/ For example, the remedial services

for the handicapped are not limited to health

programs. See S-36(d) and (e). These programs

are to be instructional. However much one may

sympathize with a handicapped child, it is no

more proper to subsidize his education in a

religious school than to subsidize such education

for a normal child.

- ee oe ee AD

-97-

presents grave problems of excessive entangle-

ment in the scheduling and integration of such

services, it would appear that a statute authorizes

parochial pupils to enter a public school and

receive such services is not facially invalid; and

accordingly, appellants do not challenge the

furnishing of such services in the public schools

12/ to the extent the services are provided as

part of the public school's general programs.

However, the furnishing of such services in

other centers or in mobile units presents

different First Amendment problems. Insofar

as SB 170 permits these programs at such locations

it is facially invalid.

The use of mobile units results in the

perpetuation of evils presented by on-premises

auxiliary services.

It is stipulated that where mobile units are

employed they will be stationed close to the non-

public premises aad except in unusual circum-

stances will be devoted exclusively to the service

of the parochial pupils. (S-33). In other words,

a publicly purchased mobile home can be parked

in a lot next to the parochial school, or at its

curbside, and public personnel will operate it as

an auxiliary adjunct to the parochial school to

12/ Appellants reserve the right to attack

the application of this portion of the statute if a

different program is administered for parochial

pupils within a public school, or if excessive

entanglement appears.

- 28-

provide services which could not be performed

within the walls of the school itself. The only

difference between these services performed in

mobile units under SB 170, and the services

unconstitutionally furnished under the former

Ohio law or the Pennsylvania and Michigan laws

previously stricken down, is the technical question

of title to the classroom.

This Court has cautioned that parochial aid

schemes are not to be evaluated in "a legalistic

minuet in which precise rules and forms must

govern.’ Lemon v. Kurtzman, 403 U.S. 602,

614 (1971). Rather, “the form of the relationship"

must be examined "for the light it casts on the

substance."’ Ibid.

It is difficult to discern why a special

satellite facility for parochial pupils parked out-

side the gate but devoted entirely to the nonpublic

institution to which it is appended should provide

materially less opportunity for the fostering of

religion than the same unit inside the walls. One

might concede that religious artifacts may be

absent from the mobile unit's walls; but that is

about the only discernible difference.

The furnishing of services in public centers

presents problems of special benefit to a sectarian

-29-

pupils at the same center." S-33 (underscoring

added). Since Ohio law does not provide for such

services to be rendered for public school students

at such public centers at this time, it is highly

speculative that such services will in fact be

rendered to public school students at public centers.

Appellants have no quarrel with making

public centers available to pupils enrolled in

nonpublic schools for the same purposes for which

those facilities are available to the public. For

class and lack of guarantees against fostering

religion or excessive entanglement.

It is stipulated that if "a program is to be

offered at a public center such as a library, public

meeting hall, firehouse, or recreation center,

services may be available for public and nonpublic

example, it would be unthinkable to deny some

pupils access to libraries, museums, parks, zoos

and the like because they are enrolled in parochial

schools. However, that is not the case when a

special program is instituted in a public center for

the special benefit of parochial pupils which is

either not available to public school pupils at that

center or is only made available to them in order

to justify the assistance to the parochial

constituency. In either case, the public benefit

must be regarded as incidental, and the primary

purpose and effect must be deemed to constitute

' assistance to religion. The program is a benefit

to a limited sectarian class, and suspect on that

basis. See Committee fi © Public Education v.

Nyquist, 413U.S. 756, 783 n. 38 (1973).

Moreover, the Act does not specify the

character of the public centers at which the ser-

vices are to be rendered; and while the stipulation

names a few of such centers (S-33), the listing is

not recited to be exclusive. There is nothing in

the Act to preclude a substantial portion of the

eighty-eight million dollars from being expended

on the capital cost of erecting centers which are

public in the sense of belonging to the school

district, but which are brought into being solely

to effectuate the provisions of the Act for the

benefit of nonpublic school pupils.

D. Standardized Testing and Scoring Services

Provided by SB 170 Violate the Establishment

Clause.

In Levitt v. Committee for Public Education,

413 U.S. 472, 93'S. Ct. 2814 (1973) this Court

invalidated a New York statutory scheme for

reimbursement of church-sponsored schools for

expenses of examination and testing of pupils.

The basis for the rejection of this program was

not merely that it involved the payment of money

to the nonpublic schools, but that testing is an

“integral part of the teaching process."" 413 U.S.

at 481 quoting with approval from the holding of

the district court, 342 F. Supp. at 444.

It is true that most of the testing involved

in Levitt was teacher prepared, whereas the tests

authorized by Section J of SB 170 are

“standardized. '' However, the thrust of Meek v.

Pittenger is that given the pervasive religious

mission and character of the parochial schools,

"jt would simply ignore reality to attempt to

separate secular educational functions from the

predominantly religious role performed..."

421 U.S. at 365.

Testing, even when standardized, remains

an "integral part of the teaching process", Levitt,

supra (413 U.S. at 481). As such, testing is not a

_ *

denominationally neutral health service; nor is it

an item which can be distributed to each child in

the parochial and public schools like a textbook.

It involves personnel of the state in scoring to

measure the progress of pupils in their subjects

at the parochial schools (S-37). Considering the

factor of pervasive religious infusion found by this

Court in Meek, the fact that the subjects thus

scored are nominally secular can make no

difference. The predominantly sectarian teaching

mission of the parochial school is a primary and

direct beneficiary. The Establishment Clause is

thereby violated.

E. Field Trip Transportation Authorized by

SB 170 Violates the Establishment Clause.

Bus transportation to and from parochial

schools, approved in Everson v. Board of

Education, 330 U.S. I (1947) was thought to

approach "the verge." Id. at 16. See Lemon v.

Kurtzman, 403 U.S. 602, 624 (1971). At Teast

‘the transportation approved in Everson involved

getting the child to and from school at regular

morning and afternoon times. That transportation

did not involve assistance to any specific portion

of the educational program of the parochial school;

and the scheduling entanglements which it entailed,

though certainly substantial, were relatively

predictable and manageable. To the contrary,

field trip transportation is stipulated to be for the

purpose "to enrich the secular studies of students.’

(S-38). As such it bears a direct relation to the

educational program of the school, which the state

is not permitted to enhance. See Meek, supra.

-

|

-32-

Moreover, the opportunities and necessity for

excessive entanglement are greatly exacerbated

in the case of field trip transportation in view of

potential competing scheduling demands of public

and private schools,

If the busing approved in Everson "was

thought to approach the 'verge'"’ (Lemon, 403 U.S.

at 624), the field trip transportation contemplated

by SB 170 must be deemed to have stepped beyond

the precipice.

F. The Programs Authorized by SB 170 Foster

Excessive Political Entanglement.

In passing upon the Pennsylvania services

and materials law, this Court reaffirmed that the

political entanglement engendered by such a law

is an additional constitutionally fatal flaw.

"The Act. . . provides successive

oppportunities for political fragmentation

and division along religious lines, one of

the principal evils against which the

Establishment Clause was intended to

protect... This potential for

political entanglement, together with the

administrative entanglement which would

be necessary to ensure that auxiliary

services personnel remain strictly

neutral and nonideological when func-

tioning in church-related schools compels

the conclusion that Act 194 violates the

constitutional prohibition against laws

‘respecting an establishment of religion. '"

Meek v. Pittenger, 421 U.S. 349, 372

(1975).

-33-

The appropriations under Ohio's parochial aid law

are much larger than those which the Supreme

Court considered in Meek, Id. at 365 n. 15 and

369 n. 19. This Court has witnessed the galloping

increases in such appropriations under Ohio's

previous aid schemes presented to it for

Establishment Clause adjudication. The biennial

appropriation for parental grants at the beginning

of this decade was in the vicinity of $60, 000. 00.

See Wolman v. Essex, 342 F. Supp. 399, 403 n. 3

(1973). As the district court below remarked:

"It requires no special wisdom to

foresee that the Act, insofar as it

confers benefits upon a predominately

sectarian class, increases the likeli-

hood that further debate concerning this

law will be along religious lines. . .

Even if couched in superficially fiscal

terms, future legislative voices, both

those that favor and those that oppose

the Act will, by implication and

construction, be debating the relative

merits of religiously oriented education. "

Kosydar v. Wolman, 353 F. Supp. 744,

766 1973) aff'd sub nom, Grit v.

Wolman, 413 U.S. 901 (1973).

Whether or not this potential for political

divisiveness would be sufficient to invalidate SB

170 absent other considerations, Cf. Committee

for Public Education v. Nyquist, 413 0.S. 756,

797-798 (1973), it is certainly a ‘warning signal’

not to be ignored." Ibid. This political

entanglement aspect infects all but the most

clearly neutral and nonsectarian portions of SB 170

and compels conclusion that of the various pro-

grams authorized by this law, only the most

narrowly conceived health services should be

sustained,

G. The Textbook Loan Provisions of SB 170

Violate the Establishment Clause.

Although the appellee public officers have

stipulated the intention of the state Department of

Education to implement the textbook provision in

a manner which is similar to that upheld in Meek

v. Pittenger, 421 U.S. 349, 362 (1975) and Board

of Education v. Allen, 392 U.S. 236 (1968), the

Ohio enactment, on its face, is broader than that

approved in these previous decisions. It includes

textbook "substitutes. “ Moreover, for the reasons

well expressed in the dissenting opinion of Justice

Douglas in Board of Education v. Allen, 392 U.S.

at 254-266, there is important reason to overrule

these previous textbook decisions. 13/ While the

content of a textbook may be fixed in the sense

that the print on the page will not change, the

manner of presentation can make the textbook one

of the most powerful tools for the infusion of

sectarian influence, "The textbook goes to the

very heart of education in a parochial school. "

Id. at 257. Accordingly, if plenary review is

granted, appellants will urge this Court to over-

rule or limit its previous decisions approving

13/ Also see Meek v. Pittenger, 421 U.S.

349, 373-385 (1975) (Brennan, J. dissenting).

=3S-

state subsidization of textbook loans for parochial

schools.

CONCLUSION

For the foregoing reasons appellants .

respectfully urge the Court to note jurisdiction

and grant plenary review of this appeal.

Respectfully submitted,

JOSHUA ). KANCELBAUM

2121 The Illuminating Building

Cleveland, Ohio 44113

(216) 781-5245

NELSON G. KARL

American Civil Liberties Union

of Ohio Foundation, Inc.

203 East Broad Street

Columbus, Ohio 43215

(614) 228-8951

DONALD M. ROBINER

1700 Investment Plaza

Cleveland, Ohio 44114

(216) 696-4666

MELVIN L. WULF

American Civil Liberties Union

22 East 40th Street

New York, New York 10016

(212) 725-1222

Attorneys for Appellants

October, 1976

APPENDICES

Al

ORDER AND OPINION BELOW

IN THE

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

No. C=-2-75-792

BENSON A. WOLMAN, et al,

Plaintiffs,

-Vs.-

MARTIN W. ESSEX, et al,

Defendants.

ORDER

For the reasons and on grounds that

more fully appear in the Opinion filed

simultaneously herewith, it is concluded

that Section 3317.06 of the Ohio Revised

€ode is constitutional and that plain-

tiffs' complaint is without merit.

IT IS THEREFORE ORDERED THAT the com-

plaint be and it hereby is DISMISSED.

BY ORDER OF THE COURT

John W. Peck

Judge, United States Court of

Appeals for the Sixth Circuit

Joseph P. Kinnear

United States District Judge

Robert M. Duncan

United States District Judge

- Pee

A2

OPINION OF THE UNITED STATES

DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF OHIO,

EASTERN DIVISION

BENSON A, WOLMAN, et al,

Plaintiffs,

vs.

MARTIN W. ESSEX, et al,

7

Defendants.

No. C-2-75=+792

(Filed July 21, 1976)

Before John W. Peck, Circuit Judge, and

Joseph P. Kinneary and Robert M. Duncan, Dis-

trict Judges.

Kinneary, District Judge. In this action

plaintiffs attack the constitutionality of Ohio

Revised Code Section 3317.06, pursuant to which

certain services and materials routinely made

available to students attending public schools

throughout the state are made available to ele-

mentary and secondary nonpublic schoolchildren

as well.

This matter is before the Court on the

complaint and the answers, various memoranda

submitted by the parties, an extensive stipula-

tion of facts and the exhibits of the parties.

A3

The action was commenced under the provisions

of Title 42, United States Code, Section 1983,

and the Court has jurisdiction over the subject

matter of this action under the provisions of

Title 28, United States Code, Section 1343.

On July 1, 1975 this Court upheld the

constitutionality of Ohio Revised Code Sec-

tion 3317.062, the predecessor statute to that

under consiceration in this action, to the ex-

tent that the former statute provided only sec-

ular, neutral and nonideological services and

materials to students attending nonpublic schools.

While appeal of this Court's decision was pend-

ing, the United States Supreme Court rendered

its decision in Meek v. Pittenger, 421 U.S. 349

(1975), and held that a Pennsylvania statute

similar to the former Ohio statute was uncon-

stitutional.

The Supreme Court vacated the judgment

of this Court and remanded the case for further

consideration in light of its decision in Meek.

The Ohio General Assembly thereafter repealed

the former statute and enacted the provisions

now codified in §3317.06 O.R.C. On November

17, 1975, this Court entered a consent order

declaring the former statute to be violative

of the First and Fourteenth Amendments.

In this action, this Court is once again

called upon to review the constitutionality of

Ohio's legislative attempts to provide auxiliary

services and educational materials to the non-

public schoolchildren throughout the state.

A three judge court was convened pursu-

ant to Title 28, United States Code, Sections

A4

2281 and 2284. On December 10, 1975, a tem-

porary restraining order was issued prohibit-

ing the defendants from implementing any pro-

vision of the statute. With the consent of the

parties, that order was subsequently modified

to permit the expenditure of monies necessary

to purchase textbooks and textbook substitutes

and to lend such items to nonpublic school

pupils or to their parents pursuant to the

statute.

I.

Plaintiffs in this action are citizens

and taxpayers of the United States and of the

State of Ohio, and this Court concludes that

these individual plaintiffs have standing to

challenge the statute. Flast v. Cohen, 392

U.S. 83 (1968). The defendants are various

state and local officials charged with the

implementation of the statute, and parents of

children attending various nonpublic schools

and who are potential recipients of the mate-

rials and services authorized by the statute.

Section 3317.06 O.R.C. was enacted as a

portion of an omnibus education bill, and most

of its sections relate to public school assist-

ance. Briefly, the statute authorizes expendi-

ture of monies by local school districts to

purchase and supply to elementary and second-

ary schoolchildren attending nonpublic schools

within the districts or to their parents the |

following independant and fully severable mate-

rials and services: secular textbooks, or

textbook substitutes, approved for use in the

public schools, §3317.06(A) O.R.C.; secular and

nonideological instructional materials and

equipment as are in use in the public schools

and which are incapable of diversion to

A5

religious use, and to hire clerical personnel

to administer the lending program, §3317.06(B),

(C) O.R.C.; speech and hearing diagnostic ser-

vices, physician, nursing, dental and optometric

services, and diagnostic psychological services,

to be provided in the nonpublic schools, $3317.06

(D), (E), (F) O.R.C.; therapeutic psychological

and speech and hearing services, guidance and

counseling services, remedial services, and pro-

grams for the deaf, blind, emotionally disturbed,

crippled and physically handicapped children,

to be provided in the public school, in public

centers or in mobile units located off the non-

public school premises, and transportation as

needed, $3317.06 (G), (H), (I), (K) O.R.C.;

standardized tests and scoring services such

as are in use in the public schools of the state,

$3317.06 (J) O.R.C.; field trip transportation and

services as are provided to public school stu-

dents, §3317.06(L) O.R.C.

Under the statute, funds appropriated by

the legislature are allocated by the Ohio De-

partment of Education to the various local pub-

lic school districts twice per year, based upon

the estimated annual averace daily membership

in nonpublic elementary and high schools locat-

ed within the district. Each local school dis-

trict will then utilize the money either to pur-

chase approved secular textbooks, instruction-

al materials and equipment, standardized test-

ing and scoring services and field trip trans-

portation or to provide the diagnostic, remedial

and therapeutic services authorized by the

statute.

Textbooks, instructional materials and

equipment, and standardized tests and scoring

a

A6é

vices are to be purchased directly from the

ounet an by the local public school district.

Auxiliary health and special educational —_

vice personnel will be hired and paid by the :

local public school districts. Such personnel,

furthermore, are to be controlled and super-

vised by the local public school districts.

Provision of the services or materials

authorized by the statute is initiated by an :

application submitted to the local public schoo

district from nonpublic school representatives.

This application receives administrative ap- .

proval or disapproval by the local public schoo

district after consultation with a field ser-

vice coordinator from the Ohio Department of

Education, and formal approval from the local

public school Loara of eaucation.

Tne statute makes clear that the mate~

rials ana services available under the statute

are limited to those available to pupils attend-

ing tne public schools within the district and,

further, that the materials anc services are

to be made available to pupils attending only

those nonpublic schools whose admission pol-

icies make no distinction as to race, creed,

color or national origin of either its pupils

or of its teachers.

Il

According to the stipulations of the

parties, approximately 496 percent of Ohio's

nonpublic schools are denominational, and

during the 1474-1975 academic year, Ohio's

nonpublic schools educated over 250,00U stu-

dents. The parties have furnished to the Court

information regarding the operations of the

A7

Columbus Catholic elementary and secondary

schools, stipulated to be fairly representa-

tive of the Catholic schools throughout the

State of Ohio, which constitute approximately

80 percent of Ohio's nonpublic schools. These

schools operate under the general supervision

of the diocesan Bishop. While most (but not

all) of the principals of such schools are re-

ligious personnel, more than two-thirds of the

teachers in such schools are not. Further,

most religious teachers no longer wear dis-

tinctive religious habits. Finally, the facil-

ities of these schools often display a Chris-

tian symbol as well as the American flag.

All such schools teach the secular sub-

jects required to meet the state minimum stand-

ards, and the parties have stipulated that,

during the required secular courses, the pu-

pils attending nonpublic schools are taught

a course content generally equivalent to that

taught in public schools. The state mandated

five-hour school day is expanded to such

schools to accommodate religious instruction

and devotion for Catholic students. Discus-

Sion of topics upon which the Catholic Church

has articulated a position are programmed to

take place only in religion classes.

Teachers in such schools, a majority of

whom are members of the Catholic faith, are

employees of the schools in which they teach.

However, no teacher in any such school is re-

quired to teach religious doctrine as a part

of or to integrate religious doctrine into the

required secular courses taught in the school.

If

A8

Finall it is to be noted that the stat-

ute auuitenens in this action extends the bene-

fits provided thereunder only to those pupils

attending nonpublic schools whose admission

policies and hiring practices with respect to

teachers make no distinction as to race, creed,

color or national origin.

Although the stipulations of the parties

evidence several significant points of dis-

tinction, the character of these schools is :

substantially comparable to that of the schoo Ss

involved in Lemon v. Kurtzman, 403 U.S. 602,

615-18 (1971).7

Iil

The Establishment Clause prohibits "spon-

sorship, financial support, and active involve-

ment of the sovereign in religious activity.

Walz v. Tax Commission, 397 U.S. 064, 668 (1970).

however, the Constitution does not compel an —

absolute separation between the state and reli-

gious institutions. Committee for Public

ae - —

, ation and Religsove Liberty v. Nyguist,

eae 56, To - - Thus some bene~-

fits extended to the public at large are con-

stitutionally permissible, despite the result-

laut compare this profile with es in Roemer

v. Board of Public Works of Maryland,

U.S. , 44 U.S.L.W. 4939 (Sune 21, 1976); —

Hunt v. McNair, 413 U.S. 734 (1973); Tilton v.

Richardson, 403 U.S. 672 (1971).

A9

ing incirect and incidental benefits flowing

to religious institutions. Lemon v. Kurtzman,

Supra, 403 U.S. 602, 614. The Supreme Court

has never held that all public aid to private

education is prohibited:

(W)here carefully limited ... P

States may assist church-related

schools in performing their secular

functions, ... not only because the

States have a substantial interest

in the guality of education being

provided by private schools, ...

but more importantly because assist-

ance properly confined to the sec- .

ular functions of sectarian schools

does not substantially promote the

readily identifiable religious mis-

sion of those schools and it does

not interfere with the free exercise

rights of others.

Worwood v. Harrison, 413 U.S. 455, 468 (1973).

In Lemon v. Kurtzman, supra, 403 U.S. 602,

the Supreme Court established a tripartite

Establishment Clause test by which state act-

ion in this area is to be judged.

-++ First, the statute must have a

secular legislative purpose; second,

its principal or primary effect must

be one that neither advances nor in-

hibits religion, Board of Education

v. Allen, 392 U.S. 236, 243 (1968);

finally, the statute must not foster

"an excessive government entanglement

with religion."

Al0

j in its arti-

403 U.S. at 612. This test, clear in

culation if difficult in its application, is

stated in terms of degree.

It is well to emphasize, however,

that the tests must not be viewed

as setting the precise limits to

the necessary constitutional in-

quiry, but serve only as guidelines

with which to identify instances in

which the objective of the Establish-

ment Clause have been impaired.

Meek v. Pittenger, supra, 421 U.S. 349, 359

T1975).

ause the state has a legitimate in-

wien the care and education of its child-

ren, it cannot be denied that the legislation

presently before this Court meets the first

prong of the constitutional standard. See

Kosydar v. Wolman, 353 F.Supp. 744, 782 WD. |

Ohio 1973), aft’d. sub nom Grit v. Wolman, 41

U.S. 901 (1974); Wolman v. Essex, 342 F.Supp.

399, 411 n. 13 (S.D. Ohio), afft'd., 409 U.S.

808 (1972).

statute must be carefully examined,

sine an effort to determine whether the

legislation has the principal or primary effect

of advancing religion or results in an exces-~

sive government entanglement with religion.

IV

A. Textbooks

All

Section 3317.06(A) O.R.C. authorizes the

lending of such secular textbooks as have been

approved by the superintendent of public in-

struction for use in public schools to pupils

attending nonpublic schools or to their parents.

The statute defines "textbook" to mean "any

book or book substitute which a pupil uses as

a text or text substitute in a particular class

or program in the school he regularly attends."

The parties have stipulated that the materials

provided under this portion of the statute

shall be limited to "books, reusable workbooks,

Or manuals, whether bound or in looseleaf form,

intended for use as a principal source of study

material for a given class or group of stu-

dents, a copy of which is expected to be avail-

able to the individual use of each pupil in

such class or group."

Administratively, individual requests

for such materials are to be submitted by non-

public pupils or by their parents, and those

requests will then be summarized by the non-

public school and forwarded to the appropriate

public school official.

On its face, this aspect of the statute

is constitutionally indistinguishable from

the textbook provisions upheld in Board of

Education v. Allen, 392 U.S. 236 (I968) and in

Meek v. Pittenger, supra, 421 U.S. 349. This

Court is therefore of the opinion that that

portion of $3317.06 O.R.C. providing testbooks

or textbook substitutes to nonpublic pupils or

to their parents does not contravene the First

Or Fourteenth Amendments.

Al2

B. Instructional Material and Equipment

Section 3317.00(B) and (C) O.R.C. author-

izes the local school districts to purchase and

lend to nonpublic school pupils or to their par-

ents instructional materials and equipment that

are incapable of diversion to religious use,

and to hire clerical personnel to administer

the program. Examples of equipment supplied

in the past under predecessor statutes include

weather forecasting charts, lunar terrain

models, fossil collections, and metric system

materials. The statute further provides that

the materials and equipment lent pursuant to

the statute may be stored on the premises of

the nonpublic school and the clerical person-

nel hired to administer the lending program

may perform their duties upon the premises of

the nonpublic school when necessary.

The duties of the clerical personnel

hired to administer the lending program in-

cludes: distribution of loan request forms

and receipt of requests, maintenance of inven-

tory, collection and distribution of materials

and equipment, maintenance of custody and stor-

age and other duties necessary for the effici-

ent implementation of the program.

The parties have stipulated that most

public school districts will simultaneously

purchase all the equipment and materials ne-

cessary for all the students in the district,

both public and nonpublic, from common suppli-

ers and, where appropriate, will employ a bid-

ding procedure in the purchases.

Ai3

The United States Supreme Court in Meek

v. Pittenger, supra, 421 U.S, 349, was present-

ed with a Feanayivaeia program authorizing the

lending to the nonpublic schools of that state

instructional materials and equipment. The

Supreme Court recognized that the materials

and equipment to be provided under the statute

challenged in that action could not be divert-

ed to religious use and thus would not involve

the state in an entangling policing relation-

ship with the nonpublic schools. Meek, supra,

421 U.S. at 365. Nevertheless, the Supreme

Court found the program to be violative of the

Establishment Clause, and the Court's sole

apparent objection to the Pennsylvania instruc-

tional materials and equipment program was to

the form of the program.

Although textbooks are lent only to

students, Act 195 authorizes the

loan of instructional material and

equipment directly to qualifying

nonpublic elementary and secondary

schools in the Commonwealth.

Meek, supra, 421 U.S. at 362-63.° See also

2rhe Supreme Court in Meek, supra, 421 U.S. at

361 n. 10 did note that, prior to the commence-

ment of the New York and Pennsylvania textbook

programs upheld in Meek and in Allen, the par-

ents of nonpublic school-children purchased

thier own textbooks. The evidence presently

before this Court does not indicate whether or

not parents of Ohio's nonpublic schoolchildren

purchased the textbooks for their children

prior to the initiation of either the textbook

;

af

he

Al4

Roemer v. Board of Public Works of Maryland,

U.S. , 44 U.S.L.W. 4939, 7944 (une 21,

1976). The Ohio statute authorizes, in an

attempt to meet the constitutional objections

articulated in Meek, the lending of such mate-

rials and equipment not to the nonpublic

schools, but only to nonpublic schoolchildren

or to their parents.

or instructional materials and equipment pro-

grams, which were first instituted in Ohio

nine years ago.

It remains unclear, however, whether

this fact is determinative in an Establishment

Clause inquiry:

Here [federal legislation] is chal-

lenged on the ground that its primary

effect is to aid the religious pur-

poses of church-related colleges and

universities. Construction grants

surely aid these institutions in the

sense that the construction of build-

ings will assist them to perform

their various functions. But bus

transportation, textbooks, and tax

exemptions all gave aid in the sense

that religious Esdise woulda other-

wise have been forced to find other

Sources from which to finance these

Services. Yet all of these forms of

governmental assistance have been up-

held.

Tilton v. Richardson, 403 U.S. 672, 679 (1971)

[emphasis supplied].

Al5

Plaintiffs argue, understandably, that

an unconstitutional program conferring bene-

fits directly upon the nonpublic school can-

not be rendered constitutional merely by con-

ferring those same benefits directly upon the

pupils of that school. See Committee for. Pub-

lic Education and Religious Liberty v. Nyquist,

supra, 413 U.S. 756, 781. Indeed, the Supreme

Court itself, in holding the Pennsylvania in-

structional materials and equipment program

unconstitutional on the ground that it had the

impermissible primary effect of advancing

religion, cited for support Sloan v. Lemon,

413 U.S. 825 (1973), which held invalid on the

same ground a parent tuition reimbursement

plan. Meek, supra, 421 U.S. at 364. Of course,

both Nyquist a Sloan may be distinguished

from the present case in that the monetary aid

at issue in those cases was, absent excessive

governmental entanglement with religion, in-

capable of restriction to purely secular usage.

In portions of its opinion in Meek, the

Supreme Court seems to indicate that all aid

flowing to the core educational functigns of

the nonpublic school is impermissible.” None-

3 It is, of course, true that as a

part of general legislation made

available to all students, a State

may include church-related schools

in programs providing bus transporta-

tion, school lunches, and public

health facilities -- secular and non-

ideological services unrelated to the

primary, religion-oriented educational

function of the sectarian school. The

{. Meng

we

Al6

theless, the Supreme Court in Meek reaffirms

state aid in the form of textbooks -- un~

deniably an integral part of any nonpublic

school's core educational functions. Further,

this Court is unable to determine a substan-

tive difference between textbooks on the one

hand and maps, charts, models and collections

on the other, except, possibly, the relative

effectiveness of the latter in attracting the

attention of a particular student and in educat-

ing him.* In the view of this Court, however,

the determination of pedagogical effectiveness

is better left to educators than to the courts.

The Supreme Court has recognized that

the education provided by nonpublic church-

related schools is in part secular and in part

sectarian, and that “some forms of aid may be

channeled to the secular without providing

direct aid to the sectarian." Committee for

Public Education and Religious Liberty v.

Nyguist, supra, 413 U.S. at . The educa-

tional materials and equipment provided by

indirect and incidental benefits to

church-related schools from those

programs do not offend the constitu-~

tional prohibition against establish-

ment of religion.

Meek, supra, 421 U.S. at 364.

4The Court notes that, under the statute, in-

structional materials and equipment may be

stored on the nonpublic premises. This fact,

however, was not determinative in either Allen

or Meek. See Meek v. Pittenger, 421 U.S. at

36ln. 9.

Al7

§3317.06 O.R.C. are, like textbooks, inherent-

ly secular and incapable of diversion to reli-

gious use, Further, the administrative in-

volvement required by the statute of public

perso.nel implementing the program is purely

clerical and requires no more surveillance over

or entanglement with the religious functions

of the nonpublic school than does the involve-

ment required of public personnel implementing

the textbook programs upheld in Allen and in

Meek. Since the nature of the clerical duties

envisioned by the statute is not such as would

render the personnel involved susceptible to

religious influence, there is no danger that

the state will become excessively involved in

the religious character of the nonpublic in-

stitution.

In view of this Court, then, the Ohio

instructional materials and equipment program

differs neither in form nor in substance from

the textbook programs previously found by the

United States Supreme Court to be constitu-

tional.

C. Diagnostic and Health Services

Section 3317.06(D), (E) and (F) author-

izes the provision of such services as speech

and hearing diagnosis, physician, nursing,

dental and optometric services and psychologi-

cal diagnosis, to take place in the nonpublic

schools. The statute further authorizes the

local public school districts to contract

with the state department of public health in

order to provide such services to the pupils

attending the nonpublic schools. The parties

Al8

have stipulated that the purpose of these ser-

vices is to determine if nonpublic pupils are

deficient or in need of assistance in these

areas.

Administratively, nonpublic school per-

sonnel will participate in the program only

insofar as their cooperation is necessary to

schedule, provide space and, in some instances,

identify children in need of such diagnostic

services. The personnel actually providing

the diagnostic and health services, however,

are employed by the public board of education,

are under its control, and subject to periodic

inspection by their supervisors solely for

determination as to whether the service per-

sonnel are engaged in the proper performance

of their diagnosis of health problems.

The Supreme Court in Meek v. Pittenger,

supra, 421 US. 349, held that Pennsylvania's

auxiliary services act, which provided on the

nonpublic premises remedial and accelerated

instruction, guidance counseling and testing,

and speech and hearing services, violated the

Establishment Clause since excessive entangle-

ment would be required for the state to assure

that the professional staff members providing

such services do not advance the religious

mission of the nonpublic school. The Court

did not hold, however, that such programs may

never be extended to nonpublic schoolchildren.

The appellants do not challenge,

and we do not question, the author-

ity of the Pennsylvania General

Assembly to make free auxiliary

services available to all students

Al9

in the Commonwealth, including

those who attend church-related

schools.

7 v. Pitten 554) sypra, 421 U.S. at 368 n.17

Temphasis supp e Court focused upon

the academic a Ba of the remedial ser-

vices provided in the Pennsylvania statute,

and found that the personnel providing the

auxiliary services were, for the most part,

teachers. 421 U.S. at 370. Because the ser-

vices in that case were to be provided on the

nonpublic school premises, the Court found

that the program was constitutionally indis-

tinguishable from those found to be unconsti-

tutional in Lemon v. Kurtzman, supra, 403 U.S.

602.

Accordingly, §3317.06 O.R.C. distinguish-

es diagnostic and health services that are con-

cerned with the detection of health problems.

on the one hand, and treatment services that

are concerned with the remedy of those pro-

blems on the other. The former are provided,

SBut see Meek v. Pittenger, 421 U.S. at 369

[footnote omitted]:

We need not decide whether substan-

tial state expenditures to enrich

the curricula of church-related ele-

mentary and secondary schools, like

the expenditure of state funds to

support the basic educational pro-

gram of those schools, necessarily

result in the direct and substantial

advancement of religious activity.

:

'

'

'

A20

pursuant to the statute, on the nonpublic

school premises, but the latter are not.

l. Physician, nursing, dental and opto-~

metric services. The plaintiffs in this action

do not challenge this provision, and the Su-

preme Court has repeatedly stated that the

states may constitutionally provide public

health and welfare benefits to all of their

young citizens, ee ee gee

nonpublic schools. Meek v. Pi nee ’ pra,

421 U.S. at 371 n.21; Lemon v. Kurtzman, supra,

403 U.S. at 616-17. This Court is o

opinion that the provision of these narrow

health programs on the premises of the non-

public school neither has the primary effect

of advancing the religious mission of those

schools nor involves the personnel providing

such services in an excessively entangling

relationship with those schools.

2. Speech and Hearing Diagnosis. The

Supreme Court in Meek held Pennsy van a's |

auxiliary services act unconstitutional in its

entirety, but indicated that it would have up-

held the constitutionality of certain of the

provisions of that act had severance been

appropriate:

[The Act's] authorization of “speech

and hearing services,” at least to

the extent such services are diagnos-

tic, seems to fall within that class

of general welfare services for child-

ren that may be provided by the State

regardless of the incidental benefit

that accrues to church-related schools.

421 U.S. at 371 n.21.

A 21

In their stipulations, the parties de-

scribe the functions of the speech and hear-

ing diagnostic staff to include identification

of those children suffering speech and hearing

handicaps and referral of such children to

therapists for treatment. The duties of these

specialists include cooperation with medical

personnel in developing an appropriate pro-

gram for each such handicapped child.

The plaintiffs challenge this provision

on the grounds that speech and hearing dianos-

tic services, like the remedial services found

to be unconstitutional in Meek, provide no

guarantee that religious doctrine will not

become intertwined with secular services.

Plaintiffs apparently believe that this con-

clusion necessarily results from the personal

communication that must take place between

the diagnostic speech and hearing specialist

and the nonpublic school child.

While this Court agrees with plaintiffs

that communication must almost inevitably take

place when a child's speech and hearing abil-

ities are tested, this Court disagrees with

- plaintiffs that such communication presents

the dangers envisioned by them. To say that

health services -- which the Supreme Court

has consistently held to be within the realm

of permissible state aid -- must be conducted

in silence in order to meet all constitution-

al objections strikes this Court as beyond the

reach of reason. Plaintiffs make no challenge

to the provision of medical, dental, nursing

or orthopedic services to pupils attending non-

public schools, yet oral communication between

A22

idi d the

those persons providing such services an

pec, 9 pupil takes place just as ——o.

as it takes place during the process of speec

and hearing diagnosis.

This Court is therefore of the opinion

that the statute is constitutional insofar as

it authorizes the provision of speech and hear-

ing diagnosis to take place on the premises of

the nonpublic school.

3. Diagnostic psycho"e ical services.

tions of the fasasitic psychologi

poe Bg oe 2 identification through recog~

nized professional methods of children —

ing from psychological problems, and referral

of children requiring treatment to the we

peutic psychological staff for treatment oO

the premises of the nonpublic school. Plain-

tiffs challenge this program, arguing that

such services give rise to at least the —

objections as did the remedial programs hel

unconstitutional in Meek.

It is, no doubt, true that psycholog-

ical diagnosis may involve an element of sub-

jectivity not necessarily involved in speech

and hearing diagnosis or in other medical ser-

vices, yet this Court perceives a significant

distinction between psychological diagnosis

and psychological treatment. Psychological

treatment would ideally involve an ongoing

relationship with the particular child and

would attempt to deal with the child in the

context of his entire environment, including

his educational environment, thus giving rise

to the dangers articulated in Meek. Psycho-

logical diagnosis, on the other hand,

A23

requires only relatively limited contact with

the child, and the procedures employed during

such contact are more easily governed by ob-

jective and professional testing methods dir-

ected, not toward the ultimate rehabilitation

of the child, but toward isolating profess-

ionally recognized symptoms.

The Supreme Court in Meek addressed it-

self to the problems raised by the presence

of personnel whose functions were perceived to

be essentially pedagogical. The danger aris-

ing from the presence of teachers in the non-

public environment stems from the nature of

the functions performed by those teachers:

In terms of potential for involving

some aspect of faith or morals in

secular subjects, a textbook's con-

tent is ascertainable, but a teacher's

handling of a subject is not.

Lemon v. Kurtzman, supra, 403 U.S. at 617.

Diagnostic services att fer markedly from teach-

ing services in that the ongoing and at times

unpredictable communication between the pupil

.and the teacher is not present in the diagnos-

tic process directed toward the isolation of

particular professionally recognized symptoms

of physical or mental difficulties present in

a child.

Accordingly, in the view of this Court,

the primary beneficiaries of such programs are

the children attending the nonpublic schools

and the objections perceived by the Supreme

Court in Meek as presented by the remedial pro-

grams authorized by the Pennsylvania legisla-

tion are not presented by Ohio's programs

. nes a ane eee

A 24

thorizing only narrow forms of health diagno-~

sta and aalekaahe Such programs do not present

the necessity for entangling supervision of the

personnel providing the services since, by vir-

tue of the nature of such services, there

exists no real likelihood that the professional

staff providing such services will advance the

religious mission of the schools in which they

serve.

D. Therapeutic and Remedial Services

Section 3317.06(G), (H), (I) and (K)

O.R.C: authorizes the provision of therapeu-

tic psychological, speech and hearing services,

guidance and counseling services, remedial ser-

vices and programs for deaf, blind, emotional-

ly disturbed, crippled and physically handi-

capped children attending nonpublic schools.

Such services are to be provided off the non-

public school premises and in public schools,

- public centers or in mobile units, as deter-

mined by the state pen eo ema + Rage ronnce pcan

ther ersonnel providing such serv

ane be conbenene of the local board of educa-

tion or under contract with the state depart-

ment of health. According to the stipulations

of the parties, the determination of the pre~

cise location of such services would depend up-

on such factors as distance, transportation

safety and adequacy of accommodations in pub-

lic schools and centers. Finally, the statute

authorizes transportation to public schools or

centers when necessary.

The stipulations define "public center"

to include libraries, public meeting halls,

A25

firehouses, or recreation centers. It is fur-

ther expected that when such services are pro-

vided in mobile units parked off nonpublic

school premises, pupils requiring the services

authorized by the statute will be treated on

an individual basis or with a small group of

students having similar problems.

Nonpublic school personnel will be in-

volved in the operation of the programs only

insofar as it is necessary to coordinate sched-

uling and, in some instances, to identify the

children in need of such specialized services.

The Supreme Court in Meek characterized

the nature of the duties of the professionals

administering these remedial and rehabilitive

services to nonpublic schoolchildren as essen-

tially pedagogical and therefore susceptible

to religious influence when conducted in the

nonpublic schools. Section 3317.06 O.R.Cc.

therefore authorizes the provision of these

remedial services to nonpublic schoolchildren

only off the premises of the nonpublic schools.

Plaintiffs argue that this section of the

. Statute fails to meet the constitutional test

of validity in that, although the statute re-

quires that the services be provided off the

nonpublic premises, there is no assurance that

either the public centers or the mobile units

will be truly disassociated from the nonpublic

schools. Plaintiffs envision creation of

"public centers" in name only but in reality

created and conducted solely for the benefit

of a parochial constituency.

As this Court views the legislative pro-

gram, the statute authorizes the provision of

i ces es

ars

ae ee EEE ©

A26

remedial and therapeutic services within the

public schools -- presumably the same physical

location of similar services provided to pub-

lic schoolchildren. However, recognizing that

the physical logistics of transporting and

servicing nonpublic schoolchildren may, in

some instances, preclude the provision of

those services in the public schools, the

General Assembly has, wisely, given to the

state department of education the flexibility

necessary in making these services available

to all nonpublic schoolchildren under all cir-

cumstances. Yet the clear import of the sta~

tute on its face is that such services are to

take place on sites neither physically nor

educationally identified with the functions

of the nonpublic school. Just as the statute

provides no authorization for the construction

of buildings, the statute on its face provides

no authority for the creation of centers or

mobile units public in name and financing but

private in every other substantive respect.

Plaintiffs further arjue that because

it is anticipated that mobile units will serve

only nonpublic schoolchildren when so assign-

ed and because public centers could conceiv-

ably be made available to nonpublic school-

children for purposes different from those for

which the center is made available to public

schoolchildren, a direct aid to religion is

the necessary result of the operation of the

statute. In this argument plaintiffs are

splitting a very fine hair.

In the view of this Court, a requirement

that the facilities in which remedial and

therapeutic services are provided to nonpublic

A27

schoolchildren must remain -- both formally as

well as substantively -- public facilities,

does not require that those facilities be used

at all times and under all circumstances in

precisely the same manner with respect to both

public and nonpublic schoolchildren. Most pub-

lic school pupils are provided remedial and

therapeutic services by the state in the

school which they attend. Once it is recog-

nized, which it must be, that the public schools

may not under all circumstances be available

to nonpublic schoolchildren for remedial and

therapeutic services, it must be recognized

that if nonpublic schoolchildren are to receive

such services at all, those services will un-

der some circumstances be made available to

them in a manner not precisely identical to

that in which pusese schoolchildren receive

such services.

The Court also notes that, according to

the stipulations of the parties, it is ancici-

pated that personnel providing therapeutic and

remedial services will, under some circum-

stances, be required to deal with the child's

regular classroom teachers. Such an arrange-

.ment raises, at first glance, the specter of

entanglement that could prove fatal to the pro-

grams. However, because the services are to

be provided outside the nonpublic school, it

cannot be said that the religious atmosphere

6In Wheeler v. Barrera, 417 U.S. 402 (1974)

the Supreme Court seemed to imply by way of

dictum that states may provide to nonpublic

schoolchildren services that are comparable,

although not identical, to those provided to

public schoolchildren.

TS rere oo

a

A8

of the nonpublic school will foster the risk

of even unconscious injection of religion into

the services found to be objectionable in Meek.

Thus there exists no need for entangling super-

vision in order to ensure that the remedial

and therapeutic personnel do not advance the

religious mission of the schools attended by

the nonpublic schoolchildren served.

Further, and perhaps more importantly,

if any such remedial and therapeutic service

is ever to be effective, it should ideally

serve the child in the context of his tota

envirénment, including his educational environ-

ment. Thus, to say that such services are

unconstitutional because the personnel provid-

ing such services must encounter the child's

nonpublic school teacher is to say that non-

public schoolchildren may never receive effec-

tive state supported remedial and therapeutic

services.

The Supreme Court in Meek did not ques~

tion the state's authority to provide such aid

to its young citizens, but found objectionable

only the mechanics of the Pennsylvania statute,

whereby the services were to be provided in

the nonpublic school. Ohio's statute removes

those services from the nonpublic school's

“atmosphere dedicated to the advancement of

religious belief" and this Court concludes

that Ohio's remedial and therapeutic programs

meet the constitutional objections articulated

in Meek. The primary beneficiaries of the pro-

grams are unquestionably the children who are

in need of such services and the administra-

tion of the program is not likely to foster an

excessive governmental entanglement with the

nonpublic schools attended by those children.

A29

E. Standardized Testing and Scoring Services

Section 3317.06(J) O.R.C. authorizes the

local school districts throughout the State of

Ohio to supply for use by nonpublic school-

children within the district such standard-

ized tests and scoring services as are in use

in the public schools of the state. Such

tests, according to the stipulations provided

by the parties, are used to measure the pro-

gress of all students in secular subjects.

The Supreme Court in Levitt v. Committee

for Public Education, 413 U.S. 472 (1573),

held unconstitutional a New York statute

authorizing reimbursement to nonpublic schools

for such state mandated services as the main-

tenance of a regular program of traditional

internal testing. The Court, through Mr. Chief

Justice Burger, perceived in the program the

oo Mh nag examinations, prepared by

eachers under the authority of religious in-

stitutions, GIT bs dratted vith an ove. un-

consciously or otherwise, to inculcate students

in the religious precepts of the sponsoring

church." 413 U.S. at 480 [emphasis supplied] .’

Unlike the testing program invalidated

in Levitt, the program authorized by the Ohio

7The Court in Levitt also noted that the New

York statute provided direct money grants to

nonpublic schools, yet provided no means of

assuring that the money would not be used for

sectarian, as opposed to secular, purposes.

413 U.S. at 477. weer

A30

statute does not involve tests prepared by non-

public school teachers, and therefore cannot re~

sult in the danger of inadvertant religious in-

doctrination. Rather, the Ohio statute author-

izes the provision of only those same tests and

scoring services as are provided in the public

schools of the local district. The content of

such tests, then, is necessarily and without

further precaution restricted to the secular

content of the state-required secular courses

taught in the nonpublic schools. Since non-

public school personnel are involved in nei-

ther the substantive drafting of the tests nor

in the ‘scoring of those tests, there is no

possibility of inadvertant injection of reli-

gious doctrine in the administration of the

tests. Likewise, because nonpublic school per-

sonnel will be involved only ministerially in

the administration of the tests, the program

will not foster an excessive entangling rela-

tionship between the state and the church-

related school.

This Court is therefore of the opinion

that the testing and scoring services author-

ized by the statute are constitutional.

F. Field Trip Transportation

Section 3317.06(L) O.R.C. authorizes the

local public school districts to provide to

nonpublic schoolchildren such field trip trans-

portation and services as are provided to pub-

lic school students within the district. The

statute further authorizes the local school

districts to contract with commercial trans-

portation companies for the service if school

district buses are unavailable. The stipula-

tions of the parties indicate that, under the

A3l

statute, transportation would be provided for

student visits to governmental, industrial,

cultural and scientific centers designed to

enrich the secular studies of no bli -

ne t+ only npublic school

Plaintiffs argue that to the extent that

field trip transportation relates to specific

aspects of the parochial school's educational

programs, the program cannot withstand consti-

tutional scrutiny.

The Supreme Court in Fverson v. Board

of Education, 330 U.S, 1 (1547), upheld a New

Jersey statute providing bus transportation to

nonpublic schoolchildren, although the Court

recognized that the state's provision of such

services may have facilitated attendance at

nonpublic schools. 330 U.S. at 17. The inci-

dental benefit to the nonpublic schools was

thought in that case not to render the program

unconstitutional. This Court is unable to

distinguish in a significant manner the con-

stitutional provision to nonpublic schoolchild-

ren of bus transportation on a daily basis

from the provision of transportation on an

occasional basis. Both may be seen to confer

an indirect benefit upon the nonpublic school

in the sense that the statute may render at-

tendance at the nonpublic school somewhat more

attractive to certain parents, but that in-

direct benefit upon the nonpublic school was

not held to be determinative of the constitu-

tionality of such programs in Everson.

Further, the administrative entangle-

ment between public and nonpublic personnel

“a4

—_—_—

A32

would not be significantly greater under the

Ohio field trip program than under the pro-

gram upheld in Everson, since only simple

scheduling of the transportation services

would be required. Because the statute specif-

ically authorizes the local public schools to

contract for transportation services where

necessary to accomodate all scheduled field

trips, this Court can perceive no danger that

scheduling conflicts would pressure the public

schools into subordinating their program

schedules to accommodate those of the nonpub-

lic schools.

This Court therefore concludes that the

field trip transportation program authorized

by §3317.06(L) O.R.C. is constitutional.

V

This Court concludes that §3317.06 O.R.C.

is on its face constitutional. The principal

or primary effect of the statute is to make

available to all students within the State of

Ohio, both public and nonpublic, certain limit-

ed and inherently secular services and mater-

ials. Likewise, this Court does not believe

that the statute will foster excessive govern-

mental entanglement, either administrative or

political. The amount of aid appropriated by

the Ohio General Assembly to effectuate all of

the programs authorized by §3317.06 O.R.C. is

substantial, averaging approximately $176.00

per nonpublic pupil per year. But because

this Court can perceive no substantive consti-

tutional objection to either the nature or the

form of the programs authorized, this Court

can perceive no constitutionally significant

A33

distinction between a little bit of secular

aid and a lot of secular aid. The statute

authorizes no transfer of money to the non-

public schools and the guidelines promulgated

for the implementation of the program provide

that funds unencumbered and unexpended for the

authorized purposes at the close of the second

year of the biennium are to be returned to the

state treasurer. Surely, if the quality of the

aid extended by the state to its citizens pre-

sents no constitutional objection, then the

quantity of that aid must be likewise unobjec-

tionable.

Finally, although the programs author-

ized by the statute are dependent upon perio-

dic appropriations, it is the conclusion of

this Court that the potentially divisive poli-

tical effect of the programs is minimal. The

statute on its face provides services and

materials to students attending nonpublic

schools only to the extent that those services

and materials are already available to child-

ren attending public schools. Additionally,

the services and materials provided to stu-

dents in nonpublic schools cannot exceed in

cost or quality the services provided to stu-

dents attending public schools. Therefore,

this statute merely extends already existing

programs to all students in Ohio. Since the

services and materials provided under the sta-

tute may not exceed in cost or quality those

provided to public schoolchildren, any poli-

tical debate would, in the view of this Court,

most likely relate to the need for and the

merits of providing such services and mater-

ials to pupils in general rather than to those

attending nonpublic schools in particular.

A34

STATUTE INVOLVED

Ohio Revised Code §3317.06

- fas enacted in

Amended Substitute Senate Bill 170

(SB 170)]

**?* 7s 2

Sec. 3317.06. MONEYS PAID TO SCHOOL DISTRICTS

UNDER DIVISION (P) OF SECTION 3317.024 OF THE REVISED

CODE SHALL BE USED FOR THE FOLLOWING INDEPEN-

DENT AND FULLY SEVERABLE PURPOSES:

(A) TO PURCHASE SUCH SECULAR TEXTBOOKS AS

HAVE BEEN APPROVED BY THE SUPERINTENDENT OF

PUBLIC INSTRUCTION FOR USE IN PUBLIC SCHOOLS IN

THE STATE AND TO LOAN SUCH TEXTBOOKS TO PUPILS

ATTENDING NONPUBLIC SCHOOLS WITHIN THE DISTRICT

OR TO THEIR PARENTS. SUCH LOANS SHALL BE BASED

A35

UPON INDIVIDUAL REQUESTS SUBMITTED BY SUCH NON-

PUBLIC SCHOOL PUPILS OR PARENTS. SUCH REQUESTS

SHALL BE SUBMITTED TO THE LOCAL PUBLIC SCHOOL

DISTRICT IN WHICH THE NONPUBLIC SCHOOL IS LOCATED.

SUCH INDIVIDUAL REQUESTS FOR THE LOAN OF TEXT-

BOOKS SHALL, FOR ADMINISTRATIVE CONVENIENCE, BE

SUBMITTED BY THE NONPUBLIC SCHOOL PUPIL OR HIS

PARENT TO THE NONPUBLIC SCHOOL WHICH SHALL PRE-

PARE AND SUBMIT COLLECTIVE SUMMARIES OF THE INDI-

VIDUAL REQUESTS TO THE LOCAL PUBLIC SCHOOL DIS-

TRICT. AS USED IN THIS SECTION, “TEXTBOOK” MEANS

ANY BOOK OR BOOK SUBSTITUTE WHICH A PUPIL USES AS

A TEXT OR TEXT SUBSTITUTE IN A PARTICULAR CLASS

OR PROGRAM IN THE SCHOOL HE REGULARLY ATTENDS.

(B) TO PURCHASE AND TO LOAN TO PUPILS ATTEND-

ING NONPUBLIC SCHOOLS WITHIN THE DISTRICT OR TO

THEIR PARENTS UPON INDIVIDUAL REQUEST, SUCH SECU-

re Mo ge AND NONIDEOLOGICAL INSTRUCTIONAL

MATERIALS AS ARE IN USE IN THE PUBLIC SCHOOLS

WITHIN THE DISTRICT AND WHICH ARE INCAPARLE OF

DIVERSION TO RELIGIOUS USE AND TO HIRE CLERICAL

PERSONNEL TO ADMINISTER SUCH LENDING PROGRAM.

(C) TO PURCHASE AND TO LOAN TO PUPILS ATTEND-

ING NONPUBLIC SCHOOLS WITHIN THE DISTRICT OR TO

THEIR PARENTS, UPON INDIVIDUAL REQUEST, SUCH SECU-

LAR, NEUTRAL AND NONIDEOLOGICAL INSTRUCTIONAL

EQUIPMENT AS IS IN USE IN THE PUBLIC SCHOOL WITHIN

THE DISTRICT AND WHICH IS INCAPABLE OF DIVERSION

TO RELIGIOUS USE AND TO HIRE CLERICAL PERSONNEL

TO ADMINISTER SUCH LENDING PROGRAM.

(D) TO PROVIDE SPEECH AND HEARING DIAGNOSTIC

SERVICES TO PUPILS ATTENDING NONPUBLIC SCHOOLS

. WITHIN THE DISTRICT. SUCH SERVICE SHALL BE PRO-

VIDED IN THE NONPUBLIC SCHOOL ATTENDED BY THE

PUPIL RECEIVING THE SERVICE.

(E) TO PROVIDE PHYSICIAN, NURSING, DENTAL, AND

OPTOMETRIC SERVICES TO PUPILS ATTENDING NONPUB-

LIC SCHOOLS WITHIN THE DISTRICT. SUCH SERVICES

SHALL BE PROVIDED IN THE SCHOOL ATTENDED BY THE

NONPUBLIC SCHOOL PUPIL RECEIVING THE SERVICE.

(F) TO PROVIDE DIAGNOSTIC PSYCHOLOGICAL SF

VICES TO PUPILS ATTENDING NONPUBLIC SCHOOL.,

WITHIN THE DISTRICT. SUCH SERVICES SHALL BE PRO-

VIDED IN THE SCHOOL ATTENDED BY THE PUPIL RECEIV-

ING THE SERVICE.

(G) TO PROVIDE THERAPEUTIC PSYCHOLOGICAL

AND SPEECH AND HEARING SERVICES TO PUPILS AT-

TENDING NONPUBLIC SCHOOLS WITHIN THE DISTRICT.

EE

~ a ee ee ee gy ee

A36

SUCH SERVICES SHALL BE PROVIDED IN THE PUBLIC

SCHOOL, IN PUBLIC CENTERS, OR IN MOBILE UNITS LO-

CATED OFF OF THE NONPUBLIC PREMISES AS DETER-

MINED BY THE STATE DEPARTMENT OF EDUCATION. IF

SUCH SERVICES ARE PROVIDED IN THE PUBLIC SCHOOL

OR IN PUBLIC CENTERS, TRANSPORTATION TO AND FROM

SUCH FACILITIES SHALL BE PROVIDED BY THE PUBLIC

—- IN WHICH THE NONPUBLIC SCHOOL IS

(H) TO PROVIDE GUIDANCE AND COUNSELING SER-

VICES TO PUPILS ATTENDING NONPUBLIC SCHOOLS

WITHIN THE DISTRICT. SUCH SERVICES SHALL BE PRO-

VIDED IN THE PUBLIC SCHOOL, IN PUBLIC CENTERS, OR

IN MOBILE UNITS LOCATED OFF OF THE NONPUBLIC

PREMISES AS DETERMINED BY THE STATE DEPARTMENT

OF EDUCATION. IF SUCH SERVICES ARF PROVIDED IN THE

PUBLIC SCHOOL OR IN PUBLIC CENTERS, TRANSPORTA-

TION TO AND FROM SUCH FACILITIES SITALL BE PRO-

VIDED BY THE PUBLIC SCHOOL DISTRICT IN WHICH THE

NONPUBLIC SCHOOL IS LOCATED.

(I) TO PROVIDE REMEDIAL SERVICES TO PUPILS AT-

TENDING NONPUBLIC SCHOOLS WITHIN THE DISTRICT.

SUCH SERVICES SHALL BE PROVIDED IN THE PUBLIC

SCHOOL, IN PUBLIC CENTERS, OR IN MOBILE UNITS LO-

CATED OFF OF THE NONPUBLIC PREMISES AS DETER-

MINED BY THE STATE DEPARTMENT OF EDUCATION. IF

SUCH SERVICES ARE PROVIDED IN THE PUBLIC SCHOOL

OR IN PUBLIC CENTERS, TRANSPORTATION TO AND FROM

SUCH FACILITIES SHALL BE PROVIDED BY THE PUBLIC

a IN WHICH THE NONPUBLIC SCHOOL IS

(J) TOSUPP! Y FOR USE BY PUPILS ATTENDING NON-

PUBLIC SCHOOL’ WITHIN THE DISTRICT SUCH STAN-

DARDIZED TESTS AND SCORING SERVICES AS ARE IN USE

IN THE PUBLIC SCHOOLS OF THE STATE.

(K) TO PROVIDE PROGRAMS FOR THE DEAF, BLIND,

EMOTIONALLY DISTURBED, CRIPPLED, AND PHYSI-

CALLY HANDICAPPED CHILDREN ATTENDING NONPUBLIC

SCHOOLS WITHIN THE DISTRICT. SUCH SERVICES SHALL

BE PROVIDED IN THE PUBLIC SCHOOL, IN PUBLIC CEN-

TERS, OR IN MOBILE UNITS LOCATED OFF OF THE NON-

PUBLIC PREMISES AS DETERMINED BY THE STATE DE-

PARTMENT OF EDUCATION. IF SUCH SERVICES ARE PRO-

VIDED IN THE PUBLIC SCHOOL OR IN PUBLIC CENTERS,

TRANSPORTATION TO AND FROM SUCH FACILITIES SHALL

.BE PROVIDED BY THE PUBLIC SCHOOL DISTRICT IN WHICH

THE NONPUBLIC SCHOOL IS LOCATED.

(L) TO PROVIDE SUCH FIELD TRIP TRANSPORTATION

A37

AND SERVICES TO NONPUBLiC SCHOOL STUDENTS AS ARE

PROVIDED TO PUBLIC SCH“OL STUDENTS IN THE DIS-

TRICT. SCHOOL DISTRICTS MAY CONTRACT WITH COMMER-

CIAL TRANSPORTATION COMPANIES FOR SUCH TRANS-

PORTATION SERVICE IF SCHOOL RIC

UNAVAILABLE. DISTRICT BUSSES ARE

HEALTH SERVICES PROVIDED PURSUANT TO DIVI-

PQUISRD Uuie RACE Rink hs SEAS BEALE

, ITH THE STATE DEPART-

MENT OF PUBLIC HEALTH. cage

TRANSPORTATION OF PUPILS PROVIDED PURSUANT

TO DIVISIONS (G), (H), (I), AND (K) OF THIS SECTION

SHALL BE PROVIDED BY THE PUBLIC SCHOOL DISTRICT

FROM ITS GENERAL FUNDS AND NOT FROM MONEYS PAID

TO IT UNDER DIVISION (P) OF SECTION 3317. .

REVISED CODE. (P) TION 3317.024 OF THE

THE DUTIES OF CLERICAL PERSONNEL, HIRED PUR-

SUANT TO DIVISIONS (B) AND (C) OF THIS SECTION,

SHALL INCLUDE DISTRIBUTION OF LOAN REQUEST FORMS,

RECEIPT AND CATALOGING OF LOAN REQUESTS, INVEN-

TORY OF INSTRUCTIONAL MATERIALS AND INSTRUC-

TIONAL EQUIPMENT, DISTRIBUTION OF INSTRUCTIONAL

MATERIALS AND INSTRUCTIONAL EQUIPMENT TO PUPILS

OR THEIR PARENTS, RETRIEVAL OF SUCH INSTRUCTIONAL

MATERIALS AND INSTRUCTIONAL EQUIPMENT, AND MAIN-

TAINING CUSTODY AND STORAGE OF THESE ITEMS. THE

INSTRUCTIONAL MATERIAL AND INSTRUCTIONAL EQUIP-

MENT AUTHORIZED TO BE LOANED PURSUANT TO DIVI-

SIONS (B) AND (C) OF THIS SECTION MAY BE STORED ON

THE PREMISES OF THE NONPUBLIC SCHOOL OF ATTEN-

DANCE AND THE CLERICAL PERSONNEL HIRED FOR AD-

MINISTRATION OF THE LENDING PROGRAM MAY PERFORM

THEIR SERVICES UPON THE PREMISES OF THE NONPUB-

LIC SCHOOL WHEN IN THE DETERMINATION OF THE

cu ADDRAORTATE FOn ere IT IS NECESSARY

3 “ICIENT IMPLEMENTATI j

THE LENDING PROGRAM. siete

NO SCHOOL DISTRICT SHALL PROVIDE HEALTH OR

REMEDIAL SERVICES TO NONPUBLIC SCHOOL PUPILS AS

AUTHORIZED BY THIS SECTION UNLESS SUCH SERVICES

ARE AVAILABLE TO PUPILS ATTENDING THE PUBLIC

SCHOOLS WITHIN THE DISTRICT.

HEALTH AND REMEDIAL SERVICES AND INSTRUC-

TIONAL MATERIALS AND EQUIPMENT PROVIDED FOR THE

BENEFIT OF NONPUBLIC SCHOOL PUPILS PURSUANT TO

THIS SECTION AND THE ADMISSION OF PUPILS TO SUCH

NONPUBLIC SCHOOLS SHALL BE PROVIDED WITHOUT DIS-

TINCTION AS TO RACE, CREED, COLOR, OR NATIONAL ORI-

GIN OF SUCH PUPILS OR OF THEIR TEACHERS. NO IN-

A

-_. ——_ se Pe oe eee, ee

Fa, “es

Caer Sar aha

A38

STRUCTIONAL MATERIALS OR INSTRUCTIONAL EQUIP-

MENT SHALL BE LOANED TO PUPILS IN NONPUBLIC

SCHOOLS OR THEIR PARENTS UNLESS SIMILAR INSTRUC-

TIONAL MATERIALS OR INSTRUCTIONAL EQUIPMENT ARE

AVAILABLE FOR PUPILS IN THE PUBLIC SCHOOLS OF THE

SCHOOL DISTRICT.

NO SCHOOL DISTRICT SHALL PROVIDE SERVICES, MA-

TERIALS, OR EQUIPMENT FOR USE IN RELIGIOUS COURSES,

DEVOTIONAL EXERCISES, RELIGIOUS TRAINING, OR ANY

OTHER RELIGIOUS ACTIVITY.

AS USED IN THIS SECTION, “PARENT” INCLUDES A

PERSON STANDING IN LOCO PARENTIS TO A CHILD.

NOTWITHSTANDING SECTION 3317.01 OF THE REVISED

CODE, PAYMENTS SHALL BE MADE UNDER THIS SECTION

TO ANY CITY, LOCAL, OR EXEMPTED VILLAGE SCHOOL

DISTRICT WITHIN WHICH IS LOCATED ONE OR MORE NON-

PUBLIC ELEMENTARY OR HIGH SCHOOLS.

THE ALLOCATION OF PAYMENTS FOR TEXTBOOKS, IN-

STRUCTIONAL MATERIALS, INSTRUCTIONAL EQUIPMENT,

HEALTH SERVICES, AND REMEDIAL SERVICES TO CITY,

LOCAL, AND EXEMPTED VILLAGE SCHOOL DISTRICTS

SHALL BE ON THE BASIS OF THE STATE BOARD OF EDU-

CATION’S ESTIMATED ANNUAL AVERAGE DAILY MEMBER-

SHIP IN NONPUBLIC ELEMENTARY AND HIGH SCHOOLS

LOCATED IN THE DISTRICT.

PAYMENTS MADE TO CITY, LOCAL, AND EXEMPTED

VILLAGE SCHOOL DISTRICTS UNDER THIS SECTION SHALL

SUNPOSE. TO SPECIFIC APPROPRIATIONS MADE FOR THE

THE STATE DEPARTMENT OF EDUCATION MAY ADOPT

GUIDELINES AND PROCEDURES UNDER WHICH SUCH PRO-

GRAMS AND SERVICES SHALL BE PROVIDED AND UNDER

WHICH DISTRICTS SHALL BE REIMBURSED FOR ADMINIS-

TRATIVE COSTS INCURRED IN PROVIDING SUCH PR0O-

GRAMS AND SERVICES.

FUNDS DISTRIBUTED PURSUANT TO THIS SECTION

SHALL NOT EXCEED SPECIFIC APPROPRIATIONS MADE

THEREFOR BY THE GENERAL ASSEMBLY, UNLESS EX-

PRESSLY APPROVED BY THE EMERGENCY BOARD OR THE

CONTROLLING BOARD.

[End of §3317. 06]

A39

NOTICE OF APPEAL

IN THE

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

No. C=2-75-792

BENSON A. WOLMAN, et al,

Plaintiffs,

-VS.-

MARTIN W. ESSEX, et al,

Defendants.

Notice is hereby given that Benson

A. Wolman, Frederick Chambers, Patricia

J. Keenan, Barbara Kaye Besser, Nancy R.

Terjesen and Marjorie Wright, plaintiffs

herein, hereby appeal to the Supreme

Court of the United States from the fi-

nal judgment and order declaring Ohio

Revised Code Section 3317.06 to be con-

stitutional, refusing to enjoin said

statute and dismissing the complaint,

entered in this action on July 21,1976.

4 ’ Boat

A40

This appeal is taken pursuant to Title

28, United States Coue Section 1253.

JOSHUA J. KANCELBAUM

2121 The Illuminating Bldg.

Cleveland,Ohio 44113

(216) 781-5245

Counsel for Plaintiffs

On Behalf of the American

Civil Liberties Union of

Of Counsel: Ohio Foundation, Inc.

Donald M. Robiner

1700 Investment Plaza

Cleveland, Ohio 44114

(216) 696-4666

Clyde Ellis

American Civil Liberties Union

of Ohio Foundation, Inc.

203 East Broad Street

Columbus, Ohio 43215

(614) 228-8951

Nelson Karl

American Civil Liberties Union

of Ohio Foundation, Inc.

203 East Broad Street

Columbus, Ohio 43215

(614) 228-8951