# Appellants Brief — Wolman v. Walter > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0720%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Appellants Brief - **Published:** January 1, 1977 - **Citation:** 433 U.S. 229 ## Text 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 ; TE TE I aN scsi aealeuibnintnaiptabintndietinns ECL eee ee aii A. 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 17 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 22 25 32 42 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 iv 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 v 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. 4 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. 7 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- Pe 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). 10 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). 11 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. 12 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). 13 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- 14 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 15 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 16 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. 17 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. 18 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 19 by Section E), the Act is based upon differences from the programs stricken down in Meek and Marburger which are constitutionally insignificant. I. 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 21 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. 22 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 23 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- 24 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. 25 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). 26 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 27 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). 28 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). 29 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). 30 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). 31 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 32 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 35 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” 36 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.” 37 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 39 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. 40 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- 41 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. 42 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). 43 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 44 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. 45 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, 47 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. 49 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 << 51 V. 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 un det patgins Mite dn wre te ee em rm ee a eee Ok ey en Pat md Bree ete ohm 53 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. 54 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. 55 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. a 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 *©In Meck, the 1973-74 appropriation under Act 195 (equipment, 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 57 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). 58 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 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- 2a ble of diversion to religious use and to hire clerical personnel to administer such lending program. (C) 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 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 3a 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 4a 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 5a 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 ee Oe ee ee eee ee 7a 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 8a 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0720%3A06. Public record. Not legal advice.