Appellants Brief — Wolman v. Walter

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Supreme Court of the United

Ocroser Term, 1976

WHOWAI 2O'aK 42. CLERK

| No. 76-496

| —

| senson A. Woman, et al.,

| Appellants,

| —Vv.—

Martin W. [Mssex, ct al.,

Appellees,

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OLI0

» EASTERN DIVISION

BRIEF FOR APPELLANTS

JosHua J. KANCELBAUM

2121 The Illuminating Building

Cleveland, Ohio 44112

(216) 781-5245

Newtson G. Kari

American Civil Liberties Union

of Ohio Foundation, Ine.

203 East Broad Street

Columbus, Ohio 43215

(614) 228-895]

DonaLtp M. Rosiner

1700 Investment Plaza

Cleveland, Ohio 44114

(216) 696-4666

Jorn M. Gora

American Civil Liberties Union

22 Kast 40th Strect

New York, New York 10016

(212) 725-1222

RECORD PRESS. INC.. 95 MORTON ST.. NEW YORK. N. Y. 10014—(212) 243-5775

° => 2 Attorneys for Appellants

TABLE OF CONTENTS

, FTL Re Pa Se Ae = ee RR eC

Citations te Cppimiems BRGbOW ........ccccccccccscccececsecccccsecessoseses ;

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I aN scsi aealeuibnintnaiptabintndietinns

ECL eee ee aii

SID: ccnsstensontnitnsiitinninncanseannatinianmmneminpiasdmenenne

Summary of the Statutory Provisions ................

SURES SPRUE ccntcteineosnirencsstitinnininannceanesommmaananetene

. Implementation of the Act 000000000.

«ETT ETEET TT INDE EEE

I TE I escccticiernsiareninennieniannminnnnnenin

ARGUMENT:

Introduction—The General Scheme of SB 170

Compared With Previously Adjudicated Aux-

iliary Services and Materials Programs ..............

The Instructional Materials and Equipment

Loan Provisions of SB 170 Violate the Estab-

are

PAGE

A. Meek v. Pitienger held that equipment and

material loans aid religions activity -............

B. The bare statutory restriction to materials

and equipment incapable of diversion to re-

ligious use is insignificant and was effec-

tively rejected in Meek v. Pittenger ................

(. The fact that the materials and equipment

are to be ostensibly loaned to pupils or par-

ents is a constitionally insignificant sham ....

Il. Psychological and Speech and Hearing Diagnos-

tic Services Provided by SB 170 Violate the

esterase CRIT ceesencninscsniicneinemaal

III. 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 Publie Schools -......................

A. The use of mobile units results in the per-

petuation of the evils presented by on-prem-

ises auxiliary SCFVICES ...................-c....--.ccecesesee-

B. The furnishing of services in public centers

constitutes a special benefit to a sectarian

class without essential guarantees against

fostering religion or excessive entanglement

IV. Standardized Testing and Scoring Services Pro-

vided by SB 170 Violate the Establishment

CRIIBD cecccenccsassesssnsssnneseenenstennicnssiiaiesindiiaiseniasiainnnnnnnann

iii

PAGE

V. Field Trip Transportation Authorized by SB 170

Violates the Establishment Clause ........................ dL

VI. The Textbook Loan Provisions of SB 170 Vio-

late the Establishment Clause ...................-.......-- 53

VII. The Programs Authorized by SB 170 Foster

Excessive Political Entanglement ...........00000....... 55

i. scacnasneneneconooanee 58

APPENDICES:

Ohio Revised Code $3317.06 (SB 170) -...0.00..0.-00..... la

Former Ohio Revised Code §3317.062 (repealed) ... 7a

Ohio Revised Code §3317.024

TaBLE oF AUTHORITIES

Cases:

Board of Edueation v. Allen, 392 U.S. 236 (1968) ..16, 28, 30,

44,53

Cantwell v. Connecticut, 310 U.S. 296 (1940) 20220... 19

Committee for Public Education v. Levitt, 414 F. Supp.

1174 (S.D.N.Y. June 21, 1976); Appeal to U.S. Su-

preme Court pending, No. 76-595 2000 50

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

Ee 20, 24, 26, 28, 30, 33, 45, 56

Everson v. Board of Edueation, 330 U.S. 1 (1947) ....15, 30,

47,51

Flast v. Cohen, 392 U.S. 83 (1968) .occcccccccssseseccccceeeeeeeseee 2

Hunt v. McNair, 413 U.S. 734 (19738) 2000.0. 23, 27

Kosydar v. Wolman, 353 F. Supp. 744 (S.D. Ohio 1973),

aff'd sub nom. Grit v. Wolman, 413 U.S. 901 (1973) 12, 19,

28, 45

Lemon v. Kurtzman, 403 U.S. 602 (1971) —000... passim

Levitt v. Committee for Public Education, 413 U.S.

ee CTD deccemssaceesinhstdeheeiaeietiiiialntcitesinicaneababataiinaiaaiatiiiniinns 15, 49, 55

Meek vy. Pittenger, 421 U.S. 349 (1975) 0. passim

Murdock vy. Pennsylvania, 319 U.S. 105 (1943) 200020... 19

Public Funds for Public Schools v. Marburger, 358 F.

Supp. 29 (N.J. Dist. 1973), aff’d 417 U.S. 961 (1974) 13,

17, 24, 35, 41

Roemer v. Board of Publie Works, U.S. ——, 96

3:5 ¢) en ilsslelsiadlaaaidtpeitetnanedl 27, 31

Sloan v. Lemon, 413 U.S. 825 (1973) ou. 28

Tilton v. Richardson, 403 U.S. 672 (1971) -200002 ee. 27

Walz v. Tax Commission, 397 U.S. 664 (1970) 200... 20

Wheeler v. Barrera, 412 U.S. 402 (1974) 00. 42

Wolman v. Essex, 342 F. Supp. 399 (S.D. Ohio 1972)

alf’d 409 U.S. 808 (1972) ....0..000... 12, 19, 27, 44, 57

Wolman v. Essex, 417 F. Supp. 1113 (S.D. Ohio

SUITED sceisciniacnissndstnhasicieaneitaaaienieniads 1, 11, 13, 26, 29, 48, 52, 53

Wolman v. Essex, U.S. Dist. Ct. S.D. Ohio No. 73-292

(July 1, 1974), vacated and remanded 421 U.S. 982

OUIEEN Gace ccianenmeeaeuanaamancls 17, 19

PAGE

Constitutional Provisions, Statutes and Rules:

ey Re, PIII OE sccisencterchisnecitecaceabasaileiaaeiathideadiniiaiiaeniul 2, 3,4

U.S. Const. Amend. XIV, Section 1 ......0.......00..........0000.. 2,19

a es Se Ee CNL deectecidntenininaninl 42

a ee Se Se SE seicscsptncsicccninapsiiniisnisntdaciiishadesiindiii 2

Be Tes GD sedstaicandsneteincceaninttinichintninimaneinalepienunn 2, 6

Former Ohio Revised Code $3317.062 0000000000 17, 18

Colahee BW COED DIF I cen cvccccrececccccccecerscceccccencsncsstecoce 6

Ohio Revised Code $3317.06 (SB 170) ...0.-..-..-.-.--. passim

Books and Treatises:

Coleman, Abnormal Psychology and Modern Life (2d

Ch, TS, TI TROD. ccieecteicnciessitenctniintinnntitiinsnnpimetiiain 37

Freund, Publie Aid to Parochial Schools, 82 Harv. L.

Se, Te Ce cccciuievtnneetinniscinasiaininitiniitisinainseiaasiiiels 23, 30, 44

Jung, Carl G., Psychology and Religion (Yale Univ.

I TRIN csnerssiescrcnstcevisassncinsenenicianniianianiadmdanaaanne

Madison, James, Memorial and Remonstrance Against

Religious Assessments, 4, reproduced at 330 U.S.

IT -snoisisciithhileneid adipsia dae aciahaabeaaeiahaigaagiaddantdaeaaaaaiaiail 47-48

Szasz, Thomas S., M.D., The Manufacture of Madness

CED TONE FD eintenrccncnenennieniccnneemnmmnmanns 36

Supreme Court of the United States

Octroser Term, 1976

No. 76-496

Benson A. Woman, et al.,

Appellants,

-—-V.—

Martin W. Essex, et al.,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

BRIEF FOR APPELLANTS

Citations to Opinions Below

The opinion of the three-judge District Court for the

Southern District of Ohio, Eastern Division, from which

this appeal is directly taken, is reported as Wolman v.

Essex, 417 F. Supp. 1113 (S.D. Ohio 1976) and is repro-

duced in the Appendix to the Jurisdictional Statement

(hereinafter abbreviated “J. S. App.”) at pp. A. 2-33.

Statement of Jurisdiction

Appellants, citizens and taxpayers of Ohio and the United

States, filed their complaint in the District Court on No-

vember 18, 1975, alleging that a state statute, Ohio Revised

Code §3317.06,' violates the First and Fourteenth Amend-

ments of the United States Constitution by effecting an

establishment of religion. The complaint demanded prelimi-

nary 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 convened to hear and determine the

suit.

The judgment sought to be reviewed was entered by the

three-judge district court below on July 21, 1976, uphold-

ing 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 standing is established

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

Constitutional Provisions and Statutes Involved

United States Constitution

Amendment I:

“Congress shall make no law respecting an establish-

ment of religion, or prohibiting the free exercise there-

ces”

Amendment XIV, Section 1:

“|. . nor shall any state deprive any person of life,

liberty, or property, without due process of law;... ”

' Hereinafter usually referred to as “SB 170.”

Ohio Revised Code

Section 3317.06 (usually referred to herein as SB 170)

is appended to this Brief at pp. la-6a, infra.

Questions Presented

1. Does a state statute which provides for the expendi-

ture of public funds to furnish auxiliary materials and

equipment for use within sectarian Schools, including ma-

terials and equipment which cannot be loaned to such

schools without violating the Establishment Clause of the

First Amendment, satisfy the requirements of the Istab-

lishment 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 prac-

ticably be distributed to individual pupils, but will be

loaned to them as a group?

2. Does a state statute which provides for the expendi-

ture of public funds to furnish diagnostic services, which

include speech and hearing services and psychological ser-

vices,’ 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 expendi-

ture of public funds to furnish therapeutic and remedial ser-

vices, guidance and counseling and other program:, includ-

* As well as physician, nursing, dental, and optometric services

which are not challenged in this suit.

ing services and programs which cannot be publicly provided

on sectarian premises without violating the Establishment

Clause of the First Amendment, satisfy the requirements

of the Establishment Clause by authorizing the perform-

ance of such services by public personnel at locations off the

sectarian premises which include mobile units parked near-

by, and undefined public centers including centers used for

such purposes only for the benefit of the sectarian bene-

ficiaries of the services?

4. Does a state statute which provides for the expendi-

ture of public funds to furnish standardized tests and scor-

ing services for use in private sectarian schools satisfy the

requirements of the Establishment Clause of the First

Amendment?

5. Does a state statute which provides for the expendi-

ture of public funds to furnish field trip transportation to

classes attending private sectarian schools satisfy the re-

quirements of the Establishment Clause of the First Amend-

ment?

6. Does a state statute which provides for the expendi-

ture of public funds to lend textbooks to pupils or parents

of pupils attending private sectarian schools satisfy the re-

quirements of the Establishment Clause of the First Amend-

ment?

Statement of the Case

A. History.

This action challenges the validity, under the Establish-

ment Clause of the First Amendment, of SB 170 enacted

by the General Assembly of Ohio and signed into law on

August 29, 1975. The substantive provisions of SB 170 are

codified at Ohio Revised Code $3317.06.

Appellants filed their complaint in the United States

District Court for the Southern District of Ohio on No-

vember 18, 1975, seeking a declaratory judgment and in-

junctive relief against the implementation of SB 170 on

the grounds that its provisions effected impermissible aid to

religious nonpublic schools, in violation of the Establish-

ment Clause (Complaint, A. 4-14).

The defendants consisted of the Superintendent of Public

Instruction, who is the chief executive and administrative

officer of Ohio’s Department of Education, and chief ad-

ministrative officer of the State Board of Education; the

State Board of Education as an entity; the Treasurer and

the Auditor of Ohio; the Board of Education of the City

School District of Columbus, Ohio; and the parents of

several pupils enrolled in sectarian nonpublic schools (A.

6-8).

On motion of the plaintiffs, the District Court granted a

temporary restraining order, on December 19, 1975, re-

straining the implementation of the Act. The restraining

order was modified by consent order of February 13, 1976,

‘to permit textbooks to be purchased from public funds and

loaned to pupils of nonpublic schools or their parents to

the extent such textbook loans had been held constitutional

by this Court.*

The separate answers of the public and parental defen-

dants filed December 9, 1975 and January 16, 1976, gen-

8 Meek v. Pittenger, 421 U.S. 349, 362 (1975). The restraining

order was dissolved when the court below entered judgment for

defendants. Appendix (hereinafter “A.”) 3.

erally denied the constitutional claims of the plaintiffs (A.

16-20, 21-24).

On December 22, 1975, pursuant to 28 U.S.C. $2284, a

three-judge court was convened to hear and determine the

suit (A. 2).*

A comprehensive factual stipulation was agreed to by the

parties and filed on March 16, 1976 (A. 25-71). On June

1, 1976, the three-judge court heard the case on the plead-

ings, the stipulation, and the briefs and arguments of coun-

sel; and on July 21, 1976, the District Court announced its

decision and opinion upholding the Establishment Clause

validity of the Act* (A. 3).

On August 10, 1976, the plaintiffs filed their notice of ap-

peal to this Court (A. 3). This Court noted probable juris-

diction on January 10, 1977.

B. Summary of the Statutory Provisions.

The provisions of the Act, which in its entirety is ap-

pended to this Brief (at pp. la-6a, infra), will be discussed

in detail in the relevant portions of the Argument. In es-

sence Section 3317.06 requires Ohio’s school districts to use

moneys paid to them from the state treasury® for the pur-

poses set forth in Sections A through L of the statute.

* The initial designation, consisting of Hon. John W. Peck, Cir-

euit Judge, and Hon. Carl B. Rubin and Joseph P. Kinneary,

District Judges, was amended by order dated May 19, 1976, sub-

stituting Hon. Robert M. Duncan, District Judge, for Judge Rubin

(A. 2).

®*The opinion and order, being appended to the Jurisdictional

Statement (J.S. App. pp. 1-33), are omitted from the Appendix.

* Pursuant to Section 3317.024 Ohio Rev. Code appended hereto

at p. 9a, infra. Section 3317.024 is part of Ohio’s Foundation

program under which state funds supplement the essentially local

funding of the school districts.

Section A requires the school districts “to purchase such

secular textbooks as have been approved by the Superin-

tendent 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 par-

Section B requires school districts “to purchase and to

loan to pupils attending nonpublic school .. . or to their

parents upon individual request, such secular, neutral and

nonideological 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.”

Section C is identical to Section B, except that it provides

for the purchase and loan of instructional equipment instead

of materials.

Section D calls for the provision of “speech and hearing

diagnostic services to pupils attending nonpublic schools

. .. . Such services shall be provided in the nonpublic

school attended by the pupil receiving the service.”

Section E provides for “physician, nursing, dental and

optometric services” within the nonpublic schools.

Section F provides for “diagnostic psychological ser-

vices” within the nonpublic schools,

Section G provides for “therapeutic psychological and

speech and hearing services to pupils attending nonpublic

schools within the district.” Unlike the diagnostic services

these services are to be “provided in the public school, in

publie centers, or in mobile units located off of the non-

public premises as determined by the state department of

education.” Transportation to public schools or public cen-

ters at public expense is authorized.

Section H provides for “guidance and counseling ser-

vices” to be performed in public schools, public centers or

mobile units, in terms similar to those employed in Sec-

tion G.

Section I provides for “remedial services” to be per-

formed in public schools, public centers or mobile units,

in terms similar to those employed in the two next preced-

ing sections.

Section J requires the districts “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.”

Section K authorizes “programs for the deaf, blind, emo-

tionally disturbed, crippled, and physically handicapped

children attending nonpublic schools within the district.”

These, like the other remedial and therapeutic programs,

are to be furnished in public schools, public centers or

mobile units.

Section L provides for field trip transportation.

Subsequent unlettered sections flesh out administrative

and fiscal detail. Most pertinently:

“The duties of clerical personnel, hired pursuant to di-

visions (B) and (C) of this section, shall include dis-

tribution of loan request forms, receipt and cataloging

of loan requests, inventory of instructional materials

and instructional equipment, distribution of instruc-

tional materials and instructional equipment to pupils

or their parents, retrieval of such instructional ma-

terials and instructional equipment, and maintaining

custody and storage of these items. The instructional

material and instructional equipment authorized to be

loaned pursuant to divisions (B) and (C) of this sec-

tion may be stored on the premises of the nonpublic

school of attendance and the clerical personnel hired

for administration of the lending program may per-

form their services upon the premises of the nonpublic

school when in the determination of the state depart-

ment of education, it is necessary and appropriate for

efficient implementation of the lending program.”

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 bene-

fits, the admission of students and the hiring of faculty

to be nondiscriminatory as to race, creed, color or national

origin; prohibit the provision of services, materials or

equipment for use in religious courses, devotional exer-

cises, religious training, or any other religious activity:

and provide funding limitations. (See pp. 5a-6a, infra.’)

The State Department of Education is authorized to

adopt guidelines and procedures for implementation of the

Act (see p. 6a, infra), and has done so. The guidelines

are appended to the stipulated record (A. 51-60, Ex. B).

* Allocation of funds is based on the State Board of Edueation’s

estimated annual average —~ membership in the nonpublic schools

located in the district (pp. 5a-6a, infra).

C. The Stipulated Facts.

1. Standing and Procedure.

The standing of the plaintiffs as citizens and taxpayers

of the United States and the State of Ohio is stipulated (A,

26, S. 1),° as is the status of the public and nonpublic de-

fendants (A. 26, S. 2,3), and the due adoption of the statute

and the guidelines (A. 26-27, S. 4, 5).

2. The Appropriated Funding.

The initial appropriation to implement the nonpublic edu-

cation benefits of the Act was $88,800,000 for the 1975-76

biennium (A. 27, S. 6).

3. Nonpublic Education in Ohio.

There were 720 chartered nonpublic schools in Ohio dur-

ing the 1974-75 school year (A. 28-29, S. 10). Of these, 657

were Catholic (/bid.) and all but 29 were sectarian (/bid.).

During this period more than 96% of the nonpublic enroll-

ment attended sectarian schools and more than 92% at-

tended Catholic schools (/bid.).

It is stipulated that if called to testify, officials of the

Catholic schools of the Diocese of Columbus, which are

fairly representative of such schools throughout Ohio,’

would testify that such schools are generally conducted in

facilities owned or leased by the diocesan Bishop or a re-

ligious order (A. 30, S. 13 (a)-(b));"° that most principals

® References to the stipulation indicate the page number of the

appendix and the paragraph number of the stipulation.

°A. 30, S. 13 (a)-(b).

‘©The responsibilities of the bishop, the vicar episcopal for

education and the pastor, inter alia, for the governance of the

Catholic schools, are stated in the Diocesan Manual excerpted at

A. 61-66. See A. 30, 8. 13 (a).

are members of a religious order within the Church (A. 30,

S. 13 (c)); that almost one-third of the teachers are priests,

nuns, or other members of religious orders who have taken

vows of obedience to the Church (A. 30-31, S. 13 (d)); that

many of the classrooms, hallways and assembly areas of

these schools are adorned with Christian symbols (/d. at

e); that secular classes are taught in such rooms (/bid.) ;

that all teachers and administrators within the schools are

employees of the schools (/d. at f); that religious exercises

and practices are conducted during the school day (A. 31-

32, S. 13 (g)); and that during religious classes pupils are

taught sectarian views on topics of social concern such as

marriage, divorce, family planning, sexual morality, abor-

tion and sterilization (A. 32, 8. 13 (i)). While it is stipu-

lated that teachers of secular subjects include members of

many different faiths and sects, in all probability the ma-

jority are Catholic (A. 33, S. 13 (j))."

The Court below concluded that

“‘[a]lthough the stipulations of the parties evidence sev-

eral significant points of distinction, the character of

these schools is substantially comparable to that of the

schools involved in Lemon v. Kurtzmun, 403 U.S. 602,

615-18 (1971)” (footnote omitted). Wolman v. Essez,

417 F. Supp. 1113, 1116 (S.D. Ohio 1976).

The record concerning the character of nonpublie educa-

tion in Ohio has not materially changed from the record

developed in previous litigation which has reached this

Court concerning Ohio parochial assistance laws, and upon

which this Court has found the Establishment Clause to

™ This description of the stipulation is not intended to be ex-

haustive. See A. 28-33, S. 10-13.

have been violated. See Kosydar v. Wolman, 353 F. Supp.

744 (S.D. Ohio 1973) aff’d sub nom. Grit v. Wolman, 413

U.S. 901 (1973); Wolman v. Essex, 342 F. Supp. 399 (8.D.

Ohio 1972) aff’d 409 U.S. 808 (1972).

Indeed, while the appellees did not concede that every

aspect of the profile of sectarian schools described in this

Court’s opinion in Meek vy. Pittenger, 421 U.S. 349, 356,

366 (1975), is factually applicable to Ohio’s parochial

schools, they have not argued that this Court’s decisions

on sectarian elementary and secondary schools in other

states are in any way inapplicable in Ohio.

D. Implementation of the Act

The general mechanical operation of the statute is de-

scribed in the Stipulation (A, 33-35, S. 14-16). Most sig-

nificantly, the Act is administered locally through more

than 620 publie school districts throughout Ohio (A. 34-35,

S. 15). The local districts approve services or materials

requested by nonpublic school representatives after con-

sultation with one of thirty-three Department of Educa-

tion coordinators (/bid.).

The methods of implementing the various specifie pro-

grams as of the development of the record below are

described in the Stipulation (A. 35-49, S. 17-38). In view

of their prolixity these stipulated facts will be discussed in

the portions of the Argument to which they pertain.

Finally, it is 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.”

(A. 49, S. 39).

E. The Holding Below

The District Court ruled, in essence, that the textbook

loan provisions were indistinguishable from those upheld

by previous decisions of this Court (417 F. Supp. at 1117);

that the lending of instructional materials and equipment

was not substantively different from the lending of text-

books (Jd, at 1119) ; that the challenged diagnostic services

were constitutional because they were health services in-

volving limited pupil contact (Jd. at 1121); that the re-

moval of therapeutic services from parochial school prem-

ises cured First Amendment difficulties (Jd. at 1123);

that the testing and scoring services were valid by reason

of standardization (Jd. at 1124); and that field trip trans-

portation was not different from the busing between

home and school previously approved by this Court (Jd.

at 1124-1125). It therefore upheld the enactment.

Summary of Argument

1. The provisions of Sections B and C of the Act, which

authorize the lending of instructional equipment and ma-

terials to pupils attending nonpublic schools or their par-

ents, and which permit the equipment and materials to

‘be stored on parochial school premises and serviced by

public personnel, are not significantly different from the

provisions of the Pennsylvania and Michigan laws, in-

validated in Meek v. Pittenger, 421 U.S. 349 (1975), and

Public Funds for Public Schools v. Marburger, 358 F.

Supp. 29 (N.J. Dist. 1973), aff’d 417 U.S. 961 (1974), under

which similar equipment and materials were loaned. There

are only two notable differences between the statutory

schemes. First, Ohio’s law contains an express prohibi-

tion against lending items capable of diversion to religious

use, whereas the Pennsylvania and Michigan laws had no

such clause; but the ruling of the district court in Meek

effectively imposed such a limitation, and this Court held

the limitation to be insufficient to save the statute. Meek

v. Pittenger, supra. Second, Ohio’s law provides for the

loan to pupils and parents rather than schools. How-

ever, given the nature of the items loaned and the sur-

rounding cireumstanees the pupil-loan concept is a mere

sham, and the pupils and parents must be regarded as a

conduit to the school. Moreover, because the lending of

equipment and materials under SB 170 is not limited to

items Which can be loaned to individual children, the

analogy to textbook loans approved by this Court is in-

apropos.

2. The diagnostic psychological and speech and hearing

services authorized to be conducted on parochial school

premises under Sections D and F of the Act are subject to

the same infirmity as the similar remedial and counseling

programs stricken down in Meek and Marburger, The fact

that these programs are “diagnostic” may slightly lessen,

but does not eliminate, the need for impermissible public

surveillance. Because of the amount of communication

which these services would engender between the public per-

sonnel and the pupils, they are more like remedial and

counseling services than like medical, nursing or similar

non-eduecational health services which appear to be per-

mitted under the Establishment Clause, and which have

not been challenged in this suit.

3. The remedial and therapeutic services authorized by

Sections G, H, I and K of the Act include services such

as remedial reading, guidance counseling and programs

for the disturbed, which could not be performed on paro-

chial school premises under Meek and Marburger. The

Act requires them to be furnished off the nonpublic

premises in three types of locations: public schools, pub-

lie centers and mobile units parked near the parochial

school. Insofar as the services are to be performed in

public schools as part of a general program for publie and

nonpublic pupils, these provisions are not facially chal-

lenged. However, insofar as the Act merely moves the pro-

srams from within the school to the curbside or a public

annex to a religious institution, it does not erase the poten-

tial for sectarian influence condemned in previous deci-

sions. And to the extent the Act permits public facilities

to be used for special purposes for parochial school pupils,

as distinct from the general community, it improperly con-

fers a special benefit on a sectarian class.

4. Section J of the Act, which requires the school dis-

tricts to supply standardized tests and scoring services

for use in parochial schools, is invalid upon the grounds

set forth in Levitt v. Committee for Public Education, 413

U.S. 472 (1973), Although, unlike the teacher-prepared

tests involved in Levitt, these tests are standardized, they

remain “an integral part of the teaching process”; they

are not loaned to individual pupils; and they are not

neutral health services. Therefore, they cannot be fur-

nished at public expense. .

5. The field-trip transportation authorized by Section L

of the Act is materially different from the busing ap-

proved in Everson v. Board of Education, 330 U.S. 1

(1974). It is stipulated that purpose of the field trip

transportation is “to enrich the secular studies of stu-

dents.” Moreover, the potential scheduling conflicts among

schools desiring to use transportation facilities provides

much greater potential for entanglement than does com-

muter busing between school and home.

6. The textbook loan provisions of Section A of the Act

are broader than those approved in Board of Education v.

Allen, 392 U.S. 236 (1968), and Meek v, Pittenger, supra.

Section A permits the lending of “book substitutes” which

could include auxiliary materials prohibited in Meek and

Marburger. The stipulated contrary present intention of

state education officials is an inadequate safeguard to pre-

vent this result. Moreover, insofar as Board of Education

v. Allen, supra, and Meek v. Pittenger, supra, permit such

textbook loans, these decisions should be overruled as in-

consistent with Establishment Clause strictures.

7. The massive and increasing Aid provided by SB 170

(now more than $88 million), fosters excessive political

divisiveness as condemned by recent decisions of this

Court.

ARGUMENT

Introduction—The General Scheme of SB 170 Com-

pared With Previously Adjudicated Auxiliary Services

and Materials Programs.

On May 19, 1975 this Court announced its opinion strik-

ing down Pennsylvania’s statutory program for the furnish-

ing of auxiliary services and instructional materials to non-

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

Meek this Court noted that its earlier affirmance of a dis-

trict court decision invalidating a similar Michigan law”

was entitled to “precedential weight.” 421 U.S. at 370 n. 20.

At the time of this Court’s holding in Meek, the appel-

lants’ challenge to former Ohio Revised Code §3317.062,

then in effect, which provided programs similar to those

considered in Meek and Marburger, was pending on ap-

peal to this Court. On May 27, 1975, this Court vacated

the District Court’s judgment which had upheld §3317.062"

and remanded the cause for further consideration in the

light of Meek v. Pittenger, supra. Wolman vy. Essex, 421

U.S. 982 (1975). On remand, on November 17, 1975, the

District Court entered a consent order in which it expressly

found that there were no constitutionally significant dif-

ferences between the provisions of the Pennsylvania legis-

lation invalidated in Meck and those contained in the

former Ohio Act, and declared that it violated the Estab-

lishment Clause of the First Amendment.”

** Public Funds for Public Schools v. Marburger, 358 F. Supp.

20 (N.J. Dist. 1973), aff'd 417 U.S. 961 (1974).

** Wolman v. Essex, supra, S.D. Ohio No. 73-292 (July 1, 1974).

4 Ibid. The consent order was entered November 17. 1975.

S.B. 170, challenged in this action, inter alia, repealed

the doomed provisions of former Section 3317.062 and re-

placed them with the revised and expanded provisions of

Ohio Revised Code Section 3317.06.

The issues presented in this case are put into perspective

by a brief delineation of the fundamental differences be-

tween the former law invalidated by Meek v. Pittenger and

the new law. As the ensuing paragraphs will document:

first, the instructional materials and equipment which were

formerly furnished to the nonpublic schools are now osten-

sibly loaned to the pupils or their parents. Second, the

services are broadly dichotomized into diagnostic and re-

medial “or therapeutic services. Diagnostic services are

furnished within the nonpublic schools and remedial or

therapeutic services are furnished in public schools, public

centers or mobile units stationed off the nonpublic prop-

erty. Provisions for textbook loans and specific health

services including physician, nursing, dental and optometric

services, which were not expressly authorized under the

former law, have been added; while other services, includ-

ing speech and hearing, psychological, guidance counseling,

remedial services and programs for the handicapped, which

had close counterparts in the former law, are carried into

the new law. In some instances these have been divided

into diagnostic and therapeutic components as described

above. Compare, former Ohio Revised Code §3317.062

(infra at pp. 7a-Sa), and Ohio Revised Code §3317.06

(infra at pp. la-6a).

Appellants contend that except insofar as certain specific

neutral health services are offered (including the “physi-

cian, nursing, dental and optometric services” authorized

by Section E), the Act is based upon differences from the

programs stricken down in Meek and Marburger which are

constitutionally insignificant.

The Instructional Materials and Equipment Loan Pro-

visions of SB 170 Violate the Establishment Clause.

This appeal challenges the KMstablishment Clause validity

of Ohio’s latest legislative effort to channel massive aid

to the parochial schools within its borders, all previous

efforts (except for busing) having been declared invalid.

Wolman v. Essex, 342 F. Supp. 399 (S.D. Ohio 1972), aff'd

409 U.S. 808 (1972) (tuition reimbursements); Aosydar

v. Wolman, 353 F. Supp. 744 (S.D. Ohio 1973), aff'd sub

nom, Grit v. Wolman, 413 U.S. 901 (1973) (tax credits) :

Wolman v. Essex, U.S. Dist. Ct. S.D. Ohio No. 73-292 (July

1 1974), vacated and remanded 421 U.S. 982 (1975) (auxil-

lary services and materials)."

Recent decisions of this Court have repeatedly measured

state laws challenged under the First Amendment’s injune-

tion against laws “respecting an establishment of reli-

gion””* against a three-part test.

“First, the statute must have a secular legislative pur-

pose; second, its principal or primary effect must be

**Ohio’s earlier salary-supplement law was repealed and _re-

placed by a tuition reimbursement program in the wake of the

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

programs unconstitutional.

‘* Made applicable to the states by the Fourteenth Amendment.

See Murdock v. Pennsylvania, 319 U.S. 105 (1943); Cantwell v.

Connecticut, 310 U.S. 296 (1940).

one that neither advances nor inhibits religion .. . ;

finally, the statute must not foster ‘an excessive gov-

ernment entanglement with religion.”” Lemon v.

Kurtzman, 403 U.S. 602, 612-13 (1971) quoting Walz v.

Tax Commission, 397 U.S. 664, 674 (1970); see also

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

756, 772-73 (1973).

The most recent application of this three-part test to a

statutory scheme of assistance to parochial grade schools

involved programs which closely resemble Ohio’s programs

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

this Court invalidated Pennsylvania’s statutory program

for furnishing instructional materials and equipment. /d.

at 366. The Pennsylvania law defined instructional equip-

ment and materials in such a way as to include substantially

the same equipment and materials which can be furnished

as auxiliary materials and equipment under S8.B. 170. 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 “materials” included:

“books, periodicals, documents, pamphlets, photographs,

reproductions, pictorial or graphic works, musical

scores, maps, charts, globes, sound recordings, includ-

ing but not limited to those on dises and tapes, proc-

essed slides, transparencies, films, filmstrips, kine-

scopes and video tapes, or any other printed and pub-

lished materials of a similar nature. ... The term

includes such other secular, neutral, non-ideological

materials as are of benefit to the instruction of non-

public school children and are presently or hereafter

provided for public school children of the Common-

wealth.” Ibid.

Exhibit D of the Stipulation (A. 67-71, S. 21) is a list of

materials and equipment available under SB 170. This

exhibit consists of a compilation of the equipment and

materials which were actually furnished in selected school

districts under the invalidated predecessor statute. It is

stipulated that

“[i]t is expected that materials and equipment loaned

to pupils or parents under the new law will be similar

to such former materials and equipment except to

the extent that the law requires that materials and

equipment capable of diversion to religious issues will

not be supplied.” Jbid.

Exhibit D discloses that virtually all the items available

under the Pennsylvania instructional equipment and ma-

terial provisions invalidated in Meck 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 provisions considered

in Meek are that (i) Ohio’s enactment expressly provides

that only materials and equipment which are “ineapable

of diversion to religious use” may be furnished; and (ii)

the materials and equipment are ostensibly “loaned” to

the pupils or their parents, rather than loaned to the non-

_? This section of the stipulations further recites that “|p| lain-

tiffs reserve the right to argue that the two stated differences are

not significant and that the restriction against supplyiig material.

and equipment incapable of religious diversion cannot in fact be

implemented.” A. 36, 8. 21.

public school. For the reasons stated in the ensuing para-

graphs, neither of these differences is material to the

validity of the Act under the Establishment Clause, and

Meek vy. Pittenger and other decisions of this Court require

invalidation of SB 170.

A. Meek v. Pittenger held that equipment and material loans

aid religious activity.

In Meek, this Court noted that “[a]lthough textbooks

are lent only to students, [the Pennsylvania law] . . .

authorizes the loan of instructional material and equip-

ment directly to qualifying nonpublic . . . schools, . . .”

421 U.S. at 362-63. This Court rejected the attempted

justification of these programs as benefiting only the

secular portion of the nonpublic curriculum.

“(T]he massive aid provided the church-related non-

publie schools of Pennsylvania by Act 195 is neither

indirect nor incidental.” Jd. at 365.

“ |. To be sure, the material and equipment that are

the subjects of the loan—maps, charts, and laboratory

equipment, for example—are ‘self-polic[ing], in that

starting as secular, nonideological and neutral, they

will not change in use.’ [Meek v. Pittenger) 374 F.

Supp., at 660. But faced with the substantial amounts

of direct support authorized by Act 195, it would sim-

ply ignore reality to attempt to separate secular edu-

cational functions from the predominantly religious

role performed by many of Pennsylvania’s church-

related elementary and secondary schools and to then

characterize Act 195 as channeling aid to the secular

without providing direct aid to the sectarian. Even

though earmarked for secular purposes, ‘when it flows

to an institution in which religion is so pervasive that

a substantial portion of its functions are subsumed

in the religious mission,’ state aid has the impermis-

sible primary effect of advancing religion. //unt vy.

McNair, 413 U.S. 734,... .” Id. at 365-66. (Emphasis

added. )

e ® e @ oe

“The chureh-related elementary and secondary schools

that are the primary beneficiaries of Act, 195’s instrue-

tional material and equipment loans typify such re-

ligion-pervasive institutions. The very purpose of

many of those schools is to provide an integrated

secular and religious education; the teaching process

is, to a large extent, devoted to the inculcation of

religious values and belief. See Lemon v. Kurtzman,

403 U.S., at 616-617. Substantial aid to the educa-

tional function of such schools, accordingly, neces-

sarily results in aid to the sectarian school enterprise

as a whole. ‘{|T)he secular education those schools

provide goes hand in hand with the religious mission

that is the only reason for the schools’ existence.

Within the institution, the two are inextricably inter-

twined.’ Jd., at 657 (opinion of Brennan, J.). See

generally Freund, Public Aid to Parochial Schools,

82 Harv, L. Rev. 1680, 1688-1689. For this reason,

Act 195’s direct aid to Pennsylvania’s predominantly

church-related, nonpublic elementary and secondary

schools, even though ostensibly limited to wholly

neutral, secular instructional material and equipment,

imescapably results in the direct and substantial ad-

vancement of religious activity, cf. Committee for

Public Education & Religious Liberty v. Nyquist, 413

U.S., at 781-783, n. 39, and thus constitutes an imper-

missible establishment of religion.” Jd, at 365-66.

(Emphasis added; footnote deleted.)

This Court observed that its holding, as quoted above,

was “directly supported, if not compelled” by its affirmance

of Public Funds for Public Schools v. Marburger, 358 F.

Supp. 29 (N.J. Dist. 1973), aff'd 417 U.S, 961 (1974), hold-

ing New Jersey’s similar programs to be unconstitutional.

Because “the direct loan of instructional material and

equipment to church-related schools has the impermissible

effect of advancing religion” (421 U.S. at 364 n. 13), this

Court concluded that “there is no need to consider whether

such aid would result in excessive entanglement of the

Commonwealth with religion through ‘comprehensive, dis-

criminating, and continuing state surveillance.” /brd.

However, it noted that the district courts below in Meek

and in Marburger had held that “excessive entanglement

of church and state would result from attempts to police

use of material and equipment that were readily divertible

to religious uses”; and that the “affirmance of the result

in Marburger was a decision on the merits, entitled to prec-

edential weight.” 421 U.S. at 366 n. 16.

Unless some distinguishing feature were to appear con-

stitutionally significant, it must be concluded that Meek

v. Pittenger, as well as the affirmance of Marburger, re-

quires tne overturning of the instructional materials and

equipment sections of Ohio’s latest enactment.

B. The bare statutory restriction to materials and equipment

incapable of diversion to religious use is insignificant and

was effectively rejected in Meek v. Pittenger.

While Ohio’s SB 170 expressly contains a restriction

against furnishing materials and equipment readily

capable of diversion to religious use in the body of the

Act, whereas the Pennsylvania 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" had held the fur-

nishing of instructional materials and equipment to be

constitutionally acceptable except to the extent that the

statute authorized the loan of equipment “which from its

nature can be diverted to religious purposes” (421 U.S. at

357), which the district court considered to include such

items as “projection and recording equipment.” [bid.

Thus, when Meek reached this Court, only the supplying

of instructional equipment and materials ostensibly in-

capable of religious diversion was at issue. This Court so

noted at 421 U.S. 357 n. 7. In reversing the portion of

the decision below which had upheld the furnishing of

equipment apparently incapable of diversion, this Court

ruled against the lending of such items as maps, charts

and laboratory equipment as well as projectors and tape

recorders. Given the lower court’s holding in Meek, the

Pennsylvania materials and equipment loan provisions

were decisionally limited in precisely the same manner in

which the Ohio Act is limited by its language. Therefore,

the statutory restriction requiring that loans be limited

** The district court in the previous Ohio litigation ruled to the

same effect. See Wolman v. Essex, U.S. Dist. Ct. N.D. Ohio No.

73-292 (July 1, 1974), vacated and remanded 421 U.S. 982 (1975).

to materials and equipment incapable of diversion adds

no new element to distinguish this case from Meek or

Marburger.

C. The fact that the materials and equipment are to be ostensi-

bly loaned to pupils or parents is a constitutionally insig-

nificant sham.

The Distiret Court below found that the distinction be-

tween lending materials and equipment to parochial

schools and lending them to the student body was con-

stitutionally decisive and approved this portion of SB 170

on that basis. 417 F. Supp. at 1118-19. However, in Com-

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

(1973), this Court noted that:

“Tt]here can be no question that these grants could

not, consistently with the Mstablishment Clause, be

given directly to sectarian schools. ... In the absence

of an effective means of guaranteeing that the state

aid derived from publie 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

sufficiently 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, see-

tarian institutions.” Ibid.

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

neutral and nonideological materials and equipment, the

teaching of Meck yv. Pittenger is that the effort to limit

aid to the secular portion of the school’s program is illusory

in view of the “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 and parents does not alter the result de-

ereed in Meek.

Similarly, in Wolman v. Essex, 342 F. Supp. 399 (S.D.

Ohio K.D. 1972), aff'd 409 U.S. 808 (1972), this Court

affirmed the district court’s conclusion that tuition re-

imbursements to parents of parochial schoo] pupils stood

on no different footing than the teachers’ salary supple-

ments or arrangements for the purchase of secular educa-

tion services from parochial schools previously condemned

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

to accept the First Amendment efficacy of aid by indiree-

tion, the district court had said:

“it is true that a parental reimbursement program

providing for transportation expenses was upheld in

Everson; and that a similar scheme providing text-

books was allowed in Allen. These cases do not, how-

ever, establish that a ‘conduit’ device may be used

as a means of avoiding the First Amendment, Hver-

son and Allen were not upheld merely because they

provided reimbursement aid to parents and students,

but because the aid provided was ideologically neutral

' It is this pervasive sectarianism, as well as the greater vulner-

ability of grade school pupils to indoctrination, which distinguishes

cases such as this from cases approving aid to the separate secular

functions of sect-sponsored colleges and universities. See Tilfon v.

Richardson, 403 U.S. 672 (1971); Hunt v. McNair, 413 U.S. 734

(1973) ; Roemer v. Board of Public Works, —— U.S. ——-, 968. Ct.

2337 (1976).

and supplied in common to the entire class of students

of publie and parochial schools alike.” 342 F. Supp.

at 415.

“We conclude that it is of no constitutional significance

that state aid goes indirectly to denominational

schools .. . through the medium of parental grants.

Since the potential ultimate effect of the scheme is

to aid religious enterprises, the Establishment Clause

forbids its implementation regardless of the form

adopted in the statute for achieving that purpose.”

Id. at 417. See also Sloan v. Lemon, 413 U.S. 825

(1973).*

The lending of instructional equipment and materials is

not practically analogous to the lending of textbooks ap-

proved in Board of Education vy. Allen, supra, and Meek

v. Pittenger. This is true not only by virtue of the reason-

ing presented in the preceding paragraphs but also be-

cause of the practical differences between books and ma-

terials and equipment—differences which are accentuated

by provisions for storage and servicing of the equipment

and materials—which reduce the pupil loan concept to

fiction. Under the statute, as it is worded and as it will be

implemented, there is no difference between a loan to the

pupils or parents and a loan to the school.

First, the materials and equipment to be loaned are not

limited to items which can be practicably distributed to

2° The tax credit schemes which also sought to aid the nonpublic

schools via parents were stricken down on the same basis in Kosydar

v. Wolman, 353 F. Supp. 744 (S.D. Ohio 1973), aff'd sub nom.

Grit v. Wolman, 413 U.S. 901 (1973); and Committee for Public

Education v. Nyquist, 413 U.S. 756 (1973).

individual pupils, such as textbooks. Under the Stipula-

tion (A. 67-71, S. 21 and Ex. D), the pupils can collectively

borrow laboratories, maps and globes, posters, gymnastic

equipment, encyclopedias, sewing machines and a host of

other group-use items.

Second, the statute expressly authorizes the storage

of the materials and equipment on the nonpublic school

premises. While the lending is to be initiated by “in-

dividual request” it is naive to believe that what is re-

quested will not be exclusively determined by the require-

ments 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, these items will be deployed in exactly the same

manner as under the prior law under which they were

loaned to the schools.”

The court below concluded that it was necessary to

uphold the First Amendment validity of the provisions

for equipment and materials loans because, like the text-

book loans upheld in Meek and Allen, these items were to

be loaned “not to the nonpublie schools, but only to non-

public school children or to their parents.” 417 F, Supp.

at 1118. The child benefit theory upon which the textbook

loan programs were approved requires no such simplistic

result.

* The Act further authorizes (and it is stipulated that the

authority will be exercised, see A. 36, 54-55, S. 22) public person-

nel, working within the parochial schools, to distribute loan request

forms, receive and catalog the requests, maintain inventories, dis-

tribute 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. These provisions alone should suffice to invalidate the

programs for excessive entanglement. See Lemon v. Kurtzman, 403

U.S. 602, 619 (1973).

This Court has only upheld laws which purport to benefit

the child, rather than the religious school, where it has

found that the “financial benefit of [the] ... program is

to parents and children, not to the nonpublic schools.”

Meek v. Pittenger, 421 U.S. 349, 360 (1975). The bus rides

approved in Everson v. Board of Education, 330 U.S. 1

(1947) and the textbooks permitted under Board of Edu-

cation v, Allen, 392 U.S. 236 (1968), and Meek, supra,

were items customarily purchased by the parents. Meck,

supra, 421 U.S. at 361 n. 10; Everson, supra, 330 USS.

at 19-20 (Justice Jackson, dissenting).

Moreover, the busing and textbook programs could in

some meaningful way be regarded as conferring a personal

benefit upon the child, distinct from the benefit to his class

or school as a whole. The child rides the bus; the child car-

ries and reads his textbooks. This Court made special note,

in Board of Education vy. Alien, supra, that “the books are

furnished for the use of individual students. ... ” 392 U.S.

at 244 n. 6 (emphasis added). The finding of constitution-

ality, in Allen, rested upon this consideration. Jbid. See

Freund, Public Aid to Parochial Schools, 82 Harv. L. Rev.

1680, 1681 (1969).

This Court has resisted any reductio-ad-absurdum ex-

tension of the child-benefit principle which would hold that

the state can fund education in church schools because edu-

22 In Meek, as in Allen before it, the textbooks were “to be lent

directly to the student. .. .” Meek v. Pittenger, 421 U.S. at 361

(1975) (emphasis added). Mr. Justice Black, dissenting in Board

of Education v. Allen, 392 U.S. 236, warned that “[i]t requires no

prophet to foresee” that the rationale of Allen could be used to

support subsidization of total religious education. Id. at 253. This

Court acknowledged the “wisdom of Mr. Justice Black’s prophecy”

in Committee for Public Education v. Nyquist. 413 U.S. 756, 785

(1973).

eation is a benefit to children. The customary recitals of

legislative purpose in most, if not all, of the parochial as-

sistance programs recently brought to this Court (and, no

doubt, the arguments of their proponents) have emphasized

the purpose of benefiting children. However, the answer

furnished by this Court, most recently recapitulated in

Roemer vy. Board of Public Works of Maryland, 96 8. Ct.

2337 (1976), is that the “State may not ... pay for what

is actually a religious education, even though it purports

to be paying for a secular one, and even though it makes its

aid available to secular and religious institutions alike.” Jd.

at 2345.

As this Court observed in Lemon v. Kurtzman, 403 U.S.

602 (1971), in demarking the boundaries of church-state

separation, it was not about “to engage in a legalistic minuet

in which precise rules and forms govern. A true minuet

is a matte: of pure form and style, the observance of which

is itself the substantive end. Here we examine the form

of the relationship for the light that it casts on the sub-

stance.” Id. at 614.

The textbook and auxiliary equipment and materials hold-

ings of this Court can be reconciled by a common sense ap-

proach to the child benefit theory. It is one thing to view

the primary benefit of books furnished to individual children

as aid to those individual children, and to regard the bene-

fit to the school as incidental. It is quite another to suggest

that wall maps, science labs, globes and the like, which are

used by the pupils as a group and which would ordinarily

be regarded as classroom equipment and supplies, where

loaned under ostensibly similar terms, must receive the

same First Amendment treatment. To the contrary, since

there is no practical difference between the lending of such

items to the school, which this Court has forbidden to the

states, and the lending of such materials to the pupils in

care of the school under the scheme of SB 170, the equip-

ment and material loan sections of SB 170 must similarly

fall. Such loans are different from the earlier forms of this

aid in name only. They constitute direct and primary aid

to the schools no less than the benefits under their

predecessor programs.”

Psychological and Speech and Hearing Diagnostic Ser-

vices Provided by SB 170 Violate the Establishment

Clause.

Sections D, Ek, and F of the Act provide for various ser-

vices to be furnished by public personnel “in the [nonpub-

lic] school attended by the pupil receiving the service.”

Piaintifis have conceded the facial constitutionality of the

“physician, nursing, dental, and optometric services” au-

thorized by Section FE, but the “diagnostic psychological ser-

vices” provided under Section F, and the “speech and hear-

ing diagnostic services” provided under Section D, are wide

of the narrow channel* through which public aid can flow

to sectarian schools.

*8 While conceivably a few items of equipment might be analogous

to textbooks, i.e. workbooks or outlines, the law is not limited to

these items and the state has obviously taken no steps to “ensure”

that proper “restrictions are obeyed” because it has imposed no

such restrictions. Cf. Lemon v. Kurtzman, 403 U.S. 602, 619

(1971). The “potential for impermissible fostering of religion” is

thus present. [bid.

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

777 (1973).

This Court has said that “public health services” have

not been “thought to offend the Establishment Clause.”

Lemon v. Kurtzman, 403 U.S. 602, 616-617 (1971). How-

ever, the fact that a statutory program of assistance to sec-

tarian institutions has a purpose or effect of promoting

health or safety, has not served to sustain it where the pro-

gram has otherwise had the impermissible effect of aiding

religion or excessive entanglement. Thus, for example, in

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

(1973), state grants to maintain and repair nonpublic

school buildings so as to “ensure the health, welfare and

safety of enrolled pupils” (/d. at 763) were ruled invalid.

Id. at 780. Public psychological and speech and hearing ser-

vices, though “diagnostic”, must also be excluded from sec-

tarian schools.

The Pennsylvania law considered in Meek v. Pittenger,

supra, called for “auxiliary services” to be performed by

public employees on parochial school premises. The ser-

vices included remedial and accelerated instruction, guid-

ance counseling and testing, and speech and hearing ser-

vices. 421 U.S. at 367. The Pennsylvania public institutions,

like those of Ohio (A. 38-39, S. 27), provided no inspection

or supervision to establish 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 profes-

sional work.” 421 U.S. at 368, quoting from the district

court opinion, 374 F. Supp. at 657. This Court disagreed.

“ _.. [Decisions of this Court make clear that the Dis-

trict Court erred in relying entirely on the good faith

and professionalism of the secular teachers and coun-

selors functioning in church-related schools to ensure

that a strictly nonideological posture is maintained.”

421 U.S. at 369.

This Court so ruled in Meek on authority of Lemon v.

Kurtzman, 403 U.S. 602 (1971), in which it had held that

where there is a “potential for impermissible fostering o/

religion ... [t}he State must be certain, given the Religion

Clauses, that subsidized teachers do not inculcate religion

...” ld. at 619. “A comprehensive, discriminating, and

continuing state surveillance will inevitably be required to

ensure that these restrictions are obeyed and the First

Amendment otherwise respected .. . ” [bid.

Regarding the auxiliary character of the services to be

performed by the publicly subsidized teachers in Meek,

the Court noted:

“That Act 194 authorizes state-funding of teachers only

for remedial and exceptional students, and not for nor-

inal students participating in the core curriculum, does

not distinguished this case from Earley v. DiCenso and

Lemon v. Kurtzman, supra. Whether the subject is

‘remedial reading,’ or simply ‘reading,’ a teacher re-

mains a teacher, and the danger that religious doctrine

will become intertwined with secular instruction per-

sists. The likelihood of inadvertent fostering of re-

ligion may be less in a remedial arithmetic class than in

a medieval history seminar, but a diminished proba-

bility of impermissible conduct is not sufficient: ‘The

State must be certain, given the Religion Clauses, that

subsidized teachers do not inculcate religion.’ 403 U.S.,

at 619. And a state-subsidized guidance counselor is

surely as likely as a state-subsidized chemistry teacher

to fail on occasion to separate religious instruction and

the advance vent of religious beliefs from his secular

educational responsibilities.

“The fact that the teachers and counselors providing

auxiliary services are employees of the public inter

mediate unit, rather than of the church-related school

in which they work, does not substantially eliminate the

need for continuing surveillance. To be sure, auxiliary

services personnel, because not employed by the non-

publie schools, are not directly subject to the discipline

of a religious authority. Cf. Lemon v. Kurtzman, 403

U.S., at 618. But they are performing important educa-

tional services in schools in which education is an in-

tegral part of the dominant sectarian mission and in

which an atmosphere dedicated to the advancement of

religious belief is constantly maintained. See :d., at

618-619. ... The potential for impermissible fostering

of religion under these circumstances, although some-

what reduced, is nonetheless present. To be certain

that auxiliary teachers remain religiously neutral, as

the Constitution demands, the State would have to im-

pose limitations on the activities of auxiliary personnel

and then engage in some form of continuing surveil-

lance to ensure that those restrictions were being fol-

lowed.” (Emphasis added; footnote deleted) 421 U.S,

at 370-72; see also Public Funds for Public Schools vy.

Marburger, 358 F. Supp. 29 (N.J. Dist. 1973), aff'd 417

U.S. 961 (1974).

«4,

The foregoing portion of the Meek opinion establishes

that the First Amendment strictures against publie fund-

ing of services to be performed by public employees on

parochial premises extend to “counselors” and “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 prem-

ises to the curbside. And while presumably the most nar-

rowly physical health services such as physician, nursing,

dental and optometric are protected by the Supreme Court’s

dictum approving such services (see Meck, 421 U.S. at 371

n. 21), no such protection can be extended to psychological

and speech and hearing services.

Psychological diagnostic services

The functions of diagnostic psychological personnel in-

clude,in addition to aptitude testing, “individual measures

to determine social and behavioral adaptability . . . inter-

viewing and .. . projective procedures.” A. 39, 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 be-

havioral 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 instruc-

tion prohibited in the parochial schools by Meek and Mar-

burger, supra, and by Levitt v. Committee for Public Edu-

cation, 413 U.S. 472 (1973). By virtue of their mutual

concerns with human behavior and consciousness, there is

a close relationship between aspects of psychology, psy-

chiatry and religion. See, for example, Thomas S.

Szasz, M. D., The Manufacture of Madness (Harper &

Row 1970) ;” see also, Carl G. Jung, Psychology and Re-

** Dr. Szasz expounds the view that institutional psychiatry is

an extension of earlier sanctions for heresy as a control for forms

of deviation the stigmatization of which is essentially clerical in

origin. See particularly The Manufacture of Madness, supra, ch.

10 “The Product Conversion—from Heresy to Illness.”

ligion (Yale Univ. Press 1938). Nor is it always possible to

separate neatly psychological diagnosis from theory. See

Coleman, Abnormal Psychology and Modern Life, p. 526-

527 (2d ed., Seott, Foresman 1956).

The conclusion is compelled that it is excessively en-

tangling for experts employed by the government to tinker

with the attitudes aad personality 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.

It is difficult to imagine a situation more potentially destrue-

tive of the cencept of separation of church and state than

that which permits government psychologists to evaluate

the mental processes of children in a church.

Speech and hearing diagnostic services:

In Meek v. Pittenger this Court observed, in dictum,

that the Pennsylvania Act’s “authorization of ‘speech and

hearing services’, at least to the extent such services are

diagnostic, seems to fall within that class of general wel-

fare services for children that may be provided by the

State... .” 421 U.S. at 371 n. 21.% Nevertheless appel-

lants urge that Ohio’s provision for speech and hearing

diagnostic services is vulnerable to challenge on Estab-

lishment Clause grounds. The constitutional infirmity of

Section D, of SB 170, which authorizes such services, lies

in its vague and general wording. “Speech and hearing

diagnostic services” are unlimited in character. Nor do

** These services were stricken down in Meck because they would

have been left standing alone, and the Court could not “assume

that the Pennsylvania General Assembly would have passed the

law solely to provide such aid.” 421 U.S. at 371 n. 21.

the guidelines further define the services. A. 56, S. 5 and

Ex. B. The stipulated record is that the function of the

speech and hearing diagnostic therapist is to “identify

children who have speech and hearing handicaps and to

refer them to the speech and hearing therapist for treat-

ment.” A. 39, S. 28 (a) (i). The diagnostician is to co-

operate with the physician and nurse in the development

of a hearing testing program. A. 39, S. 28 (a) (ii). How-

ever, the diagnostician’s services are not limited to em-

ploying any standardized or objective testing methods.

In drawing the line between general welfare provisions

and impermissible remedial education measures prohibited

by Meck and Marburger it would appear necessary to con-

sider the opportunity for sectarian influence and abuse.

See Meek, 421 U.S. at 371-72. Where the “potential for

impermissible fostering of religion . . . although somewhat

reduced, is nonetheless present,” this Court has held that

unconstitutional continuing surveillance would be neces-

sary to enforce restrictions. Meek v. Pittenger, 421 U.S.

349, 372 (1975).

Unlike a physician or a nurse whose contact with the

child is ordinarily limited to a physical appraisal and a

minimal amount of oral 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 communicative abilities. With-

out inspection, controls, or even regulatory requirements

concerning the methods of diagnosis, the danger that a

speech and hearing diagnosis program could involve un-

restricted conversation between therapist and pupil in

which the therapist, like the “chemistry teacher” whose

vulnerability was noted in Meek (Id. at 371), would “fail

on occasion to separate religious instruction and the ad-

vancement of religious beliefs from his secular . . . respon-

sibilities” (/bid.), cannot be ignored.

The Court below, without reference to authority, upheld

these diagnostic programs in the belief that they require

“only relatively limited contact with the child” (417 F.

Supp. at 1121) and that the notion that health services

“must be conducted in silence . . . strikes this Court as

beyond the reach of reason.” Jbid. Llowever, this Act

does not guarantee that the contacts will be minimal, or

that when the silence is broken, the utterances will be

secular. Just as the State could not rely on the “good

faith and professionalism of the secular teachers and coun-

selors functioning in church related schools .. . ” Meck,

supra, 421 U.S. at 369, it is insufficient to rely on the good

faith and professionalism of other personnel, at least when

their duties are permitted to involve substantial com-

munication with pupils.

The opportunity for sectarian content is present and

the State has taken no steps to be “certain .. . that the

subsidized” personnel “do not inculeate religion ... ”

Lemon v. Kurtzman, 403 U.S. 602, 618-619 (1971). There-

fore the diagnostic provisions of SB 170 must be declared

invalid.

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.

The therapeutic, counseling and remedial services en-

compassed by Sections G, H, I and K of the Act plainly

extend far beyond the neutral health services approved

by dictum in prior decisions of this Court.

The services authorized by these sections include “thera-

peutic psychological and speech and hearing services”

(G), “guidance and counseling services” (H), “remedial

services” (1) and “programs for the deaf, blind, emo-

tionally disturbed, crippled, and physically handicap-

ped... . ” (K). The guidelines do not appreciably nar-

row the available services (A. 56-58, S. 5 and Ex. B).

The stipulation, however, makes it clear that therapeutic

personnel are to have ample educational and counseling

duties involving close and ongoing relationships with

pupils.

For example, the functions of the school psychologist

include parent and teacher conferences, report writing

and planning, and “intervention strategies.” A, 43-44, 5.

36 (a). Similarly, guidance counselors, inter alia, lend

assistance in developing self-understanding and develop-

ing educational and career goals. A. 45-47, S. 36 (¢). The

learning disability staff implements instructional plans

(A. 47, S. 36 (d)), and the remedial services staff supple-

ments classroom instruction for children with problems

and disabilities. A. 47-48, 36 (e).”

The authorized services are thus similar to those which,

Meek and Marburger instruct, have too great a potential

for religious infusion to be performed by publie personnel

within parochial schools. In Meck, “remedial and ae-

celerated instruction” and “guidance counseling” were of-

fered. 421 U.S. at 367. In Marburger, remedial and ecor-

rective instruction and guidance counseling, inter alia,

were involved. 358 F, Supp. 29, 39 (N.J. Dist. 1973), aff'd

417 U.S. 961 (1974). Beeause this Court has held, in Meck

and Marburger, that such programs cannot be conducted

by state personnel in sectarian schools, the Mstablishment

Clause propriety of the SB 170 programs must stand or

fall on the constitutional effect of diverting them from

within the school to a publie school, or to a publie center

or mobile unit stationed off the nonpublie premises.

While the furnishing of governmentally subsidized ser-

vices to pupils enrolled in a publie school on the same basis

as such services are provided for publie school pupils in

that school presents grave problems of excessive entangle-

ment in the scheduling and integration of such services,

it would appear that a statute authorizing parochial pupils

to enter a public school and receive such services, as a part

of a program offered to publie school pupils as well, is

** The remedial services and services for the handicapped are

not defined by the Act or the stipulation in any manner which limits

the services to health programs. Indeed the record establishes that

the programs are to be instructional. A. 47-48, S. 36 (d) and (e).

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 parochial education for a normal child.

not facially invalid.” Accordingly, plaintiffs do not chal-

lenge the provision for furnishing such services in the

publie schools.*” However, the furnishing of such services

in other public centers or in mobile units presents dif-

ferent First Amendment problems. Insofar as SB 170

permits these programs it fosters aid to religious

activity.”

A. The use of mobile units results in the perpetuation of the

evils presented by on-premises auxiliary services.

It is stipulated that where mobile units are employed

they will “in all probability be stationed on public property

close to the nonpublic school of attendance” (A. 42-43,

S. 33); and that “[while so stationed, the personnel in

the unit will be providing services solely to nonpublic

school pupils except in unusual circumstances, .. .” [bid.

In other words, a publicly purchased mobile home can be

parked in a lot next to the parovuini schovi, or at its

curbside, and public personnel will operate it as an annex

** This Court declined to rule on the First Amendment conse-

quence of the obverse situation where public school teachers would

enter parochial schools to perform remedial services funded under

Title | of the Federal Elementary and Secondary Education Act of

1965 (20 U.S.C. 241 (a) et seg.) in Wheeler v. Barrera, 412 US.

402 (1974). In view of the opinion in Meek v. Pittenger, such

use of Title 1 funds may well be invalid. However, the dual en-

rollment programs noted as an alternative in Wheeler (417 US.

at 409-410) have not yet been adjudicated by this Court.

*”’ Plaintiffs reserve the right to attack the application of this por-

tion of the statute if a different program is administered for

parochial pupils within a public school, or if excessive entangle-

ment appears.

® Since safeguards against advancement of religion are not

provided, it is unnecessary to determine whether such safeguards

would create excessive entanglement as found in Lemon v. Kurtz-

man, 403 U.S. 602 (1971).

to the parochial school to provide services which eould

not be performed within the walls of the school itself.

In fact, the services could even be provided on grounds

presently devoted to sectarian use if a parking area is

transferred from the church to the school district or other

political subdivision. In other words, the only difference

between these services performed in mobile units under

SB 170, and the services unconstitutionally furnished un.

der the former Ohio law or the Pennsylvania and Michigan

laws previously stricken down, is the technical difference

of title to the classroom,

As noted earlier (p. 31) this Court has cautioned that

parochial aid schemes are not to be evaluated in “a legal-

istic minuet in which precise rules and forms must gov-

ern.” 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.” Jhid,

The reason for this Court’s conclusion that the Penn-

sylvania auxiliary services program constituted impermis-

sible direct aid was not that the publie lacked title to the

real estate where the services were to be rendered, but that

the public employees were performing services where “edu-

eation is an integral part of dominant sectarian mis-

sion... ,” Meek v. Pittenger, 421 U.S. 349, 371 (1975), so

that the “potential for impermissible fostering of reli-

gion... , although somewhat reduced, is nonetheless pres-

ent.” /d. at 372. It is difficult to discern why a special

satellite facility for parochial pupils, parked outside the

gate but devoted entirely to the nonpublie institution to

which it is appended, should provide materially less oppor-

tunity for fostering of religion than the same unit inside

the walls. It is true that religious artifacts may be absent

from the mobile unit’s walls; but that is about the only

discernible difference. If, for example, a guidance counselor

performs his counseling in a mobile office parked at the

gates of a sectarian institution, it would appear no less

likely that the counselor will give deference to the see-

tarian attitudes of the institution on matters such as sexual

morality, birth control, abortion, intermarriage and the

like as if the counselor were within the walls of the insti-

tution.

Where auxiliary services are performed within a public

school as part of a generally available program there would

appear to be much less potential for pressure from the sec-

tarian beneficiaries of the program for concessions along

doctrinal lines than where the program is directed toward

a particular sectarian constituency. Moreover, where the

program is administered in a public school as part of its

regular program it may be possible to regard the extension

of the program to parochial pupils as a matter of making

“available to all children the benefits of a general pro-

gram.” Meek v. Pittenger, 421 U.S. 349, 360 (1975) quoting

from Board of Education vy, Allen, 392 U.S. 236, 243-44

(1968). On the other hand, where elaborate differences

are built into the program as it is administered for paro-

chia] pupils, it must be regarded as a special program

for a limited class of sectarian beneficiaries, and constitu-

tionally suspect on that ground alone. See Wolman v.

Essex, 342 F. Supp. 366, 412 (S.D. Ohio 1972), aff'd 409

“This position is consistent with the thesis of Freund, Public

Aid to Parochial School, 82 Harv. L. Rev. 1680 (1969), in which

the view is expressed that “[s]hared time instruction in the publie

schools, treating participating parochial school children as part-

time public school children” (7d. at 1691) is the limit to which

the poliey of neutrality [toward religion] carries us.” /d. at

1688.

S. Ct. 808 (1972); Kosydar v. Wolman, 353 F. Supp. 744,

752-53 (S.D. Ohio 1972), aff’d 93S. Ct. 3062 (1973); Com-

mittee for Public Education v. Nyquist, 413 U.S. 756, 783

n, 38."

In Nyquist, this Court refused to analogize tuition grants,

available only to the nonpublic class of beneficiaries, to text-

books and bus rides as an “endeavor to provide comparable

benefits to parents of schoolchildren whether enrolled in

publie or nonpublic schools,” 413 U.S. at 782. The same

reasoning requires conelusion that the mobile units serve

to benefit a sectarian group. The fact that comparable pro-

grams may be available in public schools does not cure this

infirmity.

B. The furnishing of services in public centers constitutes a

special benefit to a sectarian class without essential guar-

antees against fostering religion or excessive entanglement.

The third category of facility where therapeutie and

remedial services may be furnished under SB 170 is “public

centers.” Neither the Act nor the guidelines specify the

kinds of public centers which may be employed for such

purposes, but the stipulation denotes the intention of the

Ohio Department of Edueation that such facilities as

“...a library, publie meeting hall, firehouse, or recreation

center...” may be so employed. A. 42-43, S. 33. That

stipulation also establishes that “[i]f a program is to be

offered at a public center such as .. . [those listed above},

services may be available for publie and nonpublie pupils

at the same center.” Jhid. (Emphasis added.) Sinee Ohio

“The distriet court in Marburger invalidated textbook pur-

chase reimbursements for parents of parochial pupils on this basis.

358 F. Supp. 29, 36 (N.J. Dist. 1973) aff'd 417 U.S. 961 (1974).

law does not provide for such services to be rendered for

public school students at facilities such as those listed

above, it is highly speculative that such services will in

fact be rendered to public school students at public centers.

As indicated in the stipulation quoted above, the furnish-

ing of such services at public centers to pupils across the

board “may” occur, or optionally, the public centers may

be exclusively devoted to assisting the sectarian community

insofar as the services contemplated by the Act are con-

cerned.

Plaintiffs have no quarrel] with making public centers

available to pupils enrolled in nonpublic schools for the

samte purposes for which those facilities are available to

the public. For 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, and that program 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 a

sectarian class of beneficiary.

Moreover, the Act does not identify the public centers

at which the services are to be rendered, and the listing

in the stipulation (A. 42-43, S. 33) is not recited to be

exclusive. There is nothing in the Act to preclude a sub-

stantial portion of the massive appropriation 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. Appellees have urged that there is no official inten-

tion to do so (Motion of nonpublic appellees to Dismiss

or Affirm, p. 14), but the Act does not restrict the funds

against such use,

This Court has recognized that the three-part test ap-

plied in recent Establishment Clause cases—secularity of

purpose, a primary effect that neither advances nor in-

hibits religion, and avoidance of excessive entanglement—

is not exclusive,

“It is well to emphasize .. . that the tests must not be

viewed as setting the precise limits to the necessary

constitutional inquiry, but serve only as guidelines with

which to identify instances in which the objectives of

the Establishment Clause have been impaired.” Meck

v. Pittenger, 421 U.S. 349, 358-59 (1975).

Even if religion per se were not advanced and excessive

entanglement were avoided, the Mstahlishment Clause would

appear to be violated by the government’s furnishing of

even secular benefits to a distinctly sectarian class. For

example, the furnishing of free toothbrushes—as well as

free Bibles—only to Christians or only to Jews would be

inconsistent with the Establishment Clause injunction

against an officially preferred church. James Madison, in

his Remonstrance, which is perhaps the seminal precursor

of the religion clauses” hinted at this proposition when

he suggested that the Virginia bill to support teachers

of the Christian religion “violates equality by subjecting

** See Everson v. Board of Education, 330 U.S. 1, 12 (1947).

some to peculiar burdens; so it violates the same principle

by granting to others peculiar exemptions.” ™

Moreover, even though the services may be provided at

a nonsectarian site, under SB 170 they will be provided to

an identifiable sectarian group. The same problems of see-

tarian influence as are created by the use of curbside mobile

units are thus presented. See pp. 43-45, supra. While the

publicly paid teachers, counselors and therapists may not be

within the walls of church property, they will nevertheless

be subject to pressures to tailor their approach to the sec-

tarian requirements of the constituency in the name of

good relations. A guidance counselor or psychologist may

well be intimidated in his approach to a teenager’s sexual

or familial difficulties by the fact that the counseling is

in the environment of a group possessed of a clear orthodox

religious dogma on the subject. The state has taken

no steps to assure that this religious infusion will not take

place and that the “subsidized teachers do not inculeate

religion. ...” Lemon v, Kurtzman, 403 U.S. 602, 619 (1971).

Like the auxiliary personnel in Meek v. Pittenger, Ohio’s

remedial and counseling staff is engaged in “performing im-

portant educational services” * which, if not within the

nonpublic schools, will nevertheless be directed to their sec-

tarian student bodies. The “atmosphere” will remain “dedi-

cated to the advancement of religious belief... .” Meek

v. Pittenger, 421 U.S. 349, 371 (1975).**

** James Madison, Memorial and Remonstrance Against Religious

Assessments, 1 4, reproduced at 330 U.S. 64, 66.

* Meck, supra, 421 U.S. at 371.

“ The Court below noted that “according to the stipulations of

the parties, it is anticipated that personnel providing therapeutic

and remedial services will, under some circumstances, be required

to deal with the child’s regular classroom teachers.” 417 F. Supp.

at 1123.

Given the stipulated fact that distance and safety of

travel will be factors in site selection for these services

(A. 42, S. 32) clairvoyance is not required to foresee that

publie centers, like mobile units, will generally be located

as close to the parochial schools as possible. To the extent

that these services are not provided in facilities fully

shared and integrated with the public school student bodies,

they clearly threaten a proliferation of public annexes to

church schools. Such a prospect cannot be squared with the

commands of the Establishment Clause.”

IV.

Standardized Testing and Scoring Services Provided

by SB 170 Violate the Establishment Clause.

In Levitt v. Committee for Public Education, 413 U.S.

472 (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 vy. Pittenger is that given the pervasive religious

mission and character of the parochial school, “it would

* Transportation to and from public centers, authorized by these

provisions of SB 170 also constitutes a special benefit to a sectarian

class and should be invalidated on that basis.

simply ignore reality to attempt to separate secular edu-

cational functions from the predominantly religious role

performed. . . .” Jd, 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 “loaned”

to individual children in the parochial and public schools

like a textbook. It involves personnel of the state in scor-

ing to “measure the progress of students” in their subjects

at the parochial schools (A. 48, S. 37). Considering the

factor of pervasive religious infusion found by the Supreme

Court in Meek, that the subjects scored are nominally

secular can make no difference. The predominantly sec-

tarian teaching mission of the parochial school is a pri-

mary and direct beneficiary. The Establishment Clause is

thereby violated.

“The subsequent New York scheme for reimbursing parochial

schools for the cost of administering state-prepared examinations

has thus been invalidated on authority of Meek. Committee for

Public Education v. Levitt, 414 F. Supp. 1174, 45 L.W. 2021-22

S.D.N.Y. June 21, 1976). Appeal to this Court was filed October

19, 1976, has been assigned No. 76-595, and is pending.

- Ne

Field Trip Transportation Authorized by SB 170 Vio-

lates the Establishment Clause.

Bus transportation to and from parochial schools, ap-

proved in Everson v. Board of Education, 330 U.S. 1 (1947),

was thought to approach “the verge.” /d. at 16. See Lemon

v. Kurtzman, 403 U.S. 602, 624 (1971). At most, the trans-

portation 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 paro-

chial school; and the scheduling entanglements which it

entailed, though certainly substantial, were relatively pre-

dictable and manageable. This Court noted, in Everson,

that the services which it approved for parochial] schools

were “... separate and .. . indisputably marked off from

the religious function. . . .” 330 U.S. at 18. In view of the

impossibility, for Establishment Clause purposes, of any

“attempt to separate secular educational functions from the

predominantly religious role” of these schools, Meek v. Pit-

tenger, 421 U.S. 349, 365 (1975), busing which is an integral

part of the education process, like testing, must constitute

impermissible aid to the sectarian function of the institu-

tion.

Field trip transportation provided under Section L of the

Act is stipulated to be for the purpose of facilitating trips

“to enrich the secular studies of students.” (A. 49, S. 38).

As such it bears a direct relation to the educational pro-

gram of the school, including its integrated religious pro-

gram, which the state is not permitted to enhance. See

Meek, supra, 413 U.S. at 366,

Moreover, the opportunities and necessity for excessive

entanglement are greatly exacerbated in the case of field

trip transportation. The busing needs for an Everson-type

commuter program can be anticipated based on nonpublic

enrollment for the school year, and presumably will not

change drastically from day-to-day within a school year.

On the other hand the extent of required field trip trans-

portation depends not only upon enrollment, but also

upon the unilateral determination of the nonpublic school

administration as to the nuzser and destination of field

trips. Accordingly, it ill be necessary for the public

and nonpublic school administrations to cooperate in the

allocation and scheduling of busing in connection with

field trips. In the event of conflict, it can be anticipated

that pressure from the sectarian community will be exerted

to obtain concessions from the government operated

schools. The prospect of administrative and political en-

tanglement is therefore present.”

If the busing approved in Everson “was thought to ap-

proach 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.

* The Court below minimized the importance of the entangle-

ment factor by referring to the Act’s provision for contracting the

transportation services. 417 F. Supp. at 1125. However, contracting

merely changes the context of the entanglement, for if a nonpublic

school can, in effect, cause the school district to hire a bus whenever

it desires one, budgetary chaos would result. There will remain

- | es of coordination and competition for available busing

det patgins Mite dn wre

te ee em rm ee a eee Ok ey en Pat md Bree ete ohm

VI.

The Textbook Loan Provisions of SB 170 Violate the

Establishment Clause.

There are significant distinctions between the textbook

loans provisions of Section A of SB 170 and those upheld

by this Court against challenge under the religion clauses

of the First Amendment in Board of Education v. Allen,

392 U.S. 236 (1968) and Meek v, Pittenger, supra. Most

notably, the definition of “textbook” is broadened to in-

clude “any book or book substitute which a pupil uses as

a text or text substitute. ...” Given the position of the

appellees” that there is no realistic difference between

books and auxiliary equipment and materials, the concept

of book substitutes may well come to be employed to

permit the public furnishing of items which cannot be

loaned under the doctrine of Meck v. Pittenger, supra.

While it is stipulated that if called to testify, Ohio

Department of Education officials would aver® that “[t]ext-

books, including book substitutes, provided under this Act

shall be limited to books, reusable workbooks, or manuals,

whether bound or in looseleaf form... .” (A. 35-36, S. 20)

it is also stipulated that

“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.” A. 49, S. 39.

* Sustained by the court below. 417 F. Supp. at 1119.

*! A. 25,8. p. 1, introductory paragraph.

The mere intent of the Department of Education is not a

sufficient safeguard against Establishment Clause abuse,

and is not the equivalent of a statutory restriction which

can be predicted to remain in effect unless amended by the

legislature with all of the publicity inherent in the legisla-

tive process.

As has been noted in preceding sections of this brief

(for example, pp. 33-35, supra) the decisions of this Court

have required that the states “ensure” against sectarian

abuse of parochial assistance programs. See Meek vy. Pit-

tenger, 421 U.S. 349, 372 (1975); Lemon v. Kurtzman, 403

U.S. 602, 619 (1971). SB 170 only ensures that the text-

book loan clause will not be abused so long as the Superin-

tendent of Public Instruction does not change his mind.

The Ohio book loan provisions can thus be held to con-

stitute impermissible aid to religion without disturbing

prior decisions of this Court. However, even if the Ohio

provisions were identical te those involved in Meek and

Allen, appellants respectfully urge that they should be

stricken down, and that insofar as previous rulings of this

Court have upheld such programs, those decisions should

be overruled. .

It is possible and appropriate to harmonize the textbook

and auxiliary equipment facets of this Court’s opinion in

Meek without exalting form over substance along the lines

suggested in Section I of this Argument (pp. 19-32, supra).

Nevertheless, the dissenting opinions of Justices Black and

Douglas in All- 1 (392 U.S. at 250 and 254) and the partial

dissent of Justice Brennan in Meek, in which Justices Doug-

las and Marshall joined, have great force. For as Justice

Douglas said, in Allen, “[t]he textbook goes to the very

heart of education in a parochial school.” 392 U.S. at 257.

And as Justice Brennan observed in Meek, it was “crystal

clear that the nonpublic school and not its pupils ... [was]

the motivating force behind the textbook loan... .” 421

U.S. at 379-80.

This Court has not shrunk, where necessary, from over-

turning its previous decisions which have been out of line

with the theme of intervening constitutional developments.

Appellants urge this Court now to hold that textbook loans,

like other forms of state aid to integral parts of the paro-

chial teaching process* from which the “predominant reli-

gious role” cannot be extracted,** cannot be supplied in aid

of sectarian institutions by the State.

VII.

The Programs Authorized by SB 170 Foster Excessive

Political Entanglement.

In Lemon v. Kurteman, 403 U.S. 602 (1971) this Court

took heed of the “broader base of entanglement” en-

gendered by the “devisive political potential” of state

parochial aid programs.

“The potential for political divisiveness related to reli-

gious belief and practice is aggravated . . . by the need

for continuing annual appropriations and the likelihood

of larger and larger demands as costs and populations

grow.” Id. at 623.

* Cf. Levitt v. Committee for Public Education, 413 U.S. 472

(1973).

*® See Meek, 421 U.S. 349, 365 (1975).

* 403 U.S. at 622.

** Ibid.

In Committee for Public Education v. Nyquist, 413 U.S.

756 (1973), it was suggested that although

“the prospect of such divisiveness may not alone war-

rant the invalidation of state laws that otherwise sur-

vive the careful scrutiny required by the decisions of

this Court, it is certainly a ‘warning signal’ not to be

ignored.” Id. at 798-99, quoting from Lemon v. Kurtz-

man, supra, 403 U.S. at 625.

Most recently, in Meek v. Pittenger, this Court has reaf-

firmed the importance of considerations of political entan-

glement. “The Act ... provides successive opportunities

for political fragmentation and division along religious

lines, one of the principal evils against which the Establish-

ment Clause was intended to protect. ...” 421 U.S. at 372.

The political entanglement fostered by Ohio’s latest enact-

ment is particularly pernicious. In the first place, the

amount of the appropriation is enormous. The eighty-eight

million dollars appropriated for the current biennium (A.

27, S. 6) is substantially larger than the Pennsylvania

appropriation in Meek which this Court characterized as

“massive.” 421 U.S. at 365. Based upon an Ohio non-

public enrollment of 262,628 (A. 28, S. 10), the average

annual expenditure per pupil exceeds $167, as contrasted

with the grants of $75 to $150 involved in Sloan v. Lemon,

413 U.S. 825, 831 (1973), or the “modest” grants of $50 to

$100 considered in Committee for Public Education v.

Nyquist, 413 U.S. 756, 797 (1973). The “self-expanding

materials and textbooks) was $17,560,000 and the appropriation

for services for that was $17,880,000. 421 U.S. at 365 n. 15;

id. at 369 n. 19. e annual appropriation in Ohio exceeds

$44,000,000.

Pe ee

propensities” of these laws, noted in Lemon vy. Kurtzman,

403 U.S. 602, 624 (1971), are strikingly demonstrated when

the SB 170 appropriation is compared to the mere $5,000,000

expended per year under the Pennsylvania program invali-

dated in that case. Jd. at 610.*

Auxiliary materials, equipment and services for the paro-

chial schools are thus supplied at an annual cost which is

greater than that which was deemed appropriate, only a

few years ago, for public aid to the core of the secular

education programs of the parochial schools.

This “potential for political entanglement” * infects all

but the most neutral, health-oriented programs counte-

nanced by the Act. When considered together with the

Act’s primary effect of advancing religion, and the neces-

sity for surveillance to prevent excessive entanglement un-

der its programs, this political entanglement requires that

SB 170 be ruled invalid.

‘7 In Ohio, aid to parochial schools was funded at only about

$30,000,000 per year under the tuition reimbursement program

stricken down in Wolman v. Essex, 342 F. Supp. 399 (S.D. Ohio

1974), aff'd 409 U.S. 808 (1972).

48 Meck v. Pittenger, 421 U.S. 349, 372 (1975).

CONCLUSION

SB 170 is an elaborate effort to evade the commands of

Meek v. Pittenger, 421 U.S. 349 (1975). The remark of

Mr. Justice Brennan, partially dissenting in that case, is

relevant. “(I]t should be observed that sophisticated at-

tempts to avoid the Constitution are just as invalid as

simple-minded ones.” /d. at 381. Except insofar as it pro-

vides narrowly defined health services, this law must be

declared invalid.

For the foregoing reasons, appellants respectfully urge

this Court to reverse the decision of the District Court.

Respectfully submitted,

Josuua J. KanceLBauM

2121 The Lluminating Building

Cleveland, Ohio 44113

(216) 781-5245

Nextson G. Karu

American Civil Liberties Union

of Ohio Foundation, Jne.

203 East Broad Street

Columbus, Ohio 43215

(614) 228-8951

DonaLtp M. Rosiner

1700 Investment Plaza

Cleveland, Ohio 44114

(216) 696-4666

Joet M. Gora

American Civil Liberties Union

22 East 40th Street

New York, New York 10016

(212) 725-1222

Attorneys for Appellants

APPENDIX

OHIO REVISED CODE

Section 3317.06 (SB 170):

Moneys paid to school districts under division (P)

of section 3317.024 [3317.02.4] of the Revised Code

shall be used for the following independent 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 upon individual requests submitted by such non-

public school pupils or parents. Such requests shal! be

submitted to the local public school district in which

the nonpublic school is located. Such individual re-

quests for the loan of textbooks shall, for administra-

tive convenience, be submitted by the nonpublic school

pupil or his parent to the nonpublic school which shall

prepare and submit collective summaries of the indi-

vidual requests to the local public school district. As

used in this section, “texthook” 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 regu-

larly attends.

(B) To purchase and to loan to pupils attending

nonpublic schools within the district or to their parents

upon individual request, such secular, neutral and non-

ideological instructional materials as are in use in the

publie schools within the district and which are incapa-

ble of diversion to religious use and to hire clerical

personnel to administer such lending program.

nonpublic schools within the district or to their parents,

upon individual request, such secular, neutral and non-

ideological 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 per-

sonnel to administer such lending program.

(D) To provide speech and searing diagnostic serv-

ices to pupils attending nonpublic schools within the

district. Such service shall be provided in the nonpublic

school attended by the pupil receiving the service.

(E) To provide physician, nursing, dental, and

optometric services to pupils attending nonpublic

schools within the district. Such services shall be pro-

vided in the school attended by the nonpublic school

pupil receiving the service.

(F) To provide diagnostic psychological services to

pupils attending nonpublic schools within the district.

Such services shall be provided in the school attended

by the pupil receiving the service.

(G) To provide therapeutic psychological and speech

and hee ng services to pupils attending nonpublic

schools within the district. Such services shall be pro-

vided in the public school, in public centers, or in mo-

bile units located off of the nonpublic premises as de-

termined 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

LT TT

Se eee

be provided by the public school district in which the

nonpublic school is located.

(H) To provide guidance and counseling services to

pupils attending nonpublic schools within the district.

Such services shall be provided in the public school,

in public centers, or in mobile units located off of the

nonpublic premises as determined by the state depart-

ment of education. If such services are provided in the

publie school or in publie centers, transportation to and

from such facilities shall "be provided by the public

school district in which the nonpublic school is located.

(I) To provide remedial services to pupils attending

nonpublic schools within the district. Such services

shall be provided 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 are provided in the public school or

in public centers, transportation to and from such fa-

cilities shall be provided by the public school district

in which the nonpublic school is located.

(J) To supply for use by pupils attending nonpublic

schools within the district such standardized tests and

scoring services as are in use in the public schools of

the state.

(K) To provide programs for the deaf, blind, emo-

tionally disturbed, crippled, and physically handicapped

children attending nonpublic schools within the district.

Such services shall be provided in the public school,

in public centers, or in mobile units located off of the

nonpublic premises as determined by the state depart-

ment 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

school district in which the nonpublic school is located.

(L) To provide such field trip transportation and

services to nonpublic school students as are provided

to publie school students in the district. School districts

may contract with commercial transportation compa-

nies for such transportation service if school district

busses are unavailable.

Health services provided pursuant to divisions (D),

(E), (F), and (G) of this section may be provided

under contract with the state department of public

health.

Transportation of pupils provided pursuant to di-

visions (G), (I), (1), and (K) of this section shall be

provided by the public school distriet from its general

funds and not from moneys paid to it under division

(P) of section 3317.024 [3317.02.4] of the Revised Code,

The duties of clerical personnel, hired pursuant to

divisions (B) and (C) of this section, shall inelude dis-

tribution of loan request forms, receipt and cataloging

of loan requests, inventory of instructional materials

and instructional equipment, distribution of instrue-

tional materials and instructional equipment to pupils

or their rarents, retrieval of such instructional ma-

terials and instructional equipment, and maintaining

custody and storage of these items. The instructional

material and instructional equipment authorized to be

loaned pursuant to divisions (B) and (C) of this section

may be stored on the premises of the nonpublic school

of attendance and the clerical personnel hired for ad-

ministration of the lending program may perform their

li a ey a ss

services upon the premises of the nonpublic school when

in the determination of the state department of educa-

tion, it is necessary and appropriate for efficient imple-

mentation of the lending program.

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 publie schools within the district.

Health and remedial services and instructional ma-

terials and equipment provided for the benefit of non-

public school pupils pursuant to this section and the

admission of pupils to such nonpublic schools shall be

provided without distinction as to race, creed, color, or

national origin of such pupils or of their teachers. No

instructional materials or instructional equipment shall

be loaned to pupils in nonpublic schools or their parents

unless similar instructional materials or instruetional

equipment are available for pupils in the publie schools

of the school district.

No school distriet shall provide services, materials,

or equipment for use in religious courses, devotional ex-

ercises, religious training, or any other religious ae-

tivity.

As used in this section, “parent” includes a person

standing in loco parentis to a child.

Notwithstanding section 3517.01 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 nonpublic clementary or high

schools.

The allocation of payments for textbooks, instrue-

tional materials, instruegjonal cquipment, health ser-

vices, and remedial services to city, local, and exempted

village school districts shall be on the basis of the state

board of education’s estimated annual average daily

membership in nonpublic elementary and high schools

located in the district.

Payments made to city, local, and exempted village

school districts under this section shall be equal to

specific appropriations made for the purpose.

The state department of education may adopt guide-

lines and procedures under which such programs and

services shall be provided and under which districts

shall be reimbursed for administrative costs incurred

in providing such programs and services.

Funds distributed pursuant to this section shall not

exceed specific appropriations made therefor by the

general assembly, unless expressly approved by the

emergency board or the controlling board.

ee ee eke eo ee Se ee ne ee

~- ve re

Oe ee ee eee ee

Former Section 3317.062 (repealed) :

Moneys paid to school distriets under division (D)

of section 3317.02 of the Revised Code shall be used

to provide ... services and materials to pupils attend-

ing nonpublic schools within the school district for:

guidance, testing, and counseling programs; programs

for the deaf, blind, emotionally disturbed, crippled, and

physically handicapped children; audio-visual aids;

speech and hearing services; remedial reading pro-

grams; educational television services; programs for

the improvement of the educational and cultural status

of disadvantaged pupils... .

Services, instructional materials, or programs pro-

vided pursuant to this division for pupils attending

nonpublic schools shall not exceed in cost or quality

such services, instructional materials, and programs as

provided for pupils in the publie schools of the district.

No school district shall provide services, materials,

or programs for use in sectarian religious courses or

devotional exercises. No educational materials pro-

vided shall be used in, especially suitable for use in,

or selected for use in sectarian religious courses or de-

votional exercises. |

Ldueational services, materials, and programs pro-

vided for the benefit of nonpublic school pupils under

this division and the admission of pupils to such non-

publie schools shall be provided without distinetion as

to the race creed, color, or national origin of such

pupils or of their teachers. No services, materials, or

programs shall be provided for pupils in nonpublic

schools unless such services, materials, or programs

are available for pupils in the public schools of the

school district.

The state department of education shal] adopt guide-

lines and procedures under which such programs and

services shall be provided and under which districts

shall be reimbursed for administrative costs incurred

in providing such grants, services, and materials.

Funds distributed pursuant to this section shall not

exceed specific appropriations made therefor by the

general assembly, unless expressly approved by the

emergency board or the controlling board.

Sanh enn eee

Section 3317.024:

To school districts meeting the requirements of see-

tion 3317.01 of the Revised Code, in addition to the

moneys paid to eligible school districts pursuant to see-

tion 3317.022 [3317.02.2| or 3317.11 of the Revised

Code, there shall be distributed monthly, quarterly, or

annually as may be determined by the state board of

education, moneys appropriated for the following edu-

cation programs:

(P) An amount to each school district, for each pupil

attending a chartered nonpublic clementary or high

school within the distriet. The amount shall equal the

amount appropriated for the implementation of see-

tion 3317.06 of the Revised Code divided by the aver-

age daily membership in grades one to twelve in non-

publie elementary and high schools within the state as

determined during the first full week in October of

each school year.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.