Amicus Curiae Brief — School Dist. of Grand Rapids v. Ball

Office - Supreme Court, US.

FILE ae)

JUN 8

IN THE ALEXANDER L. STEVAS.

SUPREME COURT OF THE UNI STATHS rx

No. 83-990

October Term, 1983

THE SCHOOL DISTRICT OF THE

CITY OF GRAND RAPIDS, et al.,

Petitioners,

vs.

PHYLLIS BALL, et al.,

Respondent s.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF OF THE BAPTIST JOINT COMMITTEE

RS, THE NATIONAL COUNCIL

CHRIST IN THE U.S.A.,

JOHN W. BAKER

200 Maryland Avenue, N.E.

Washington, D.C. 20002

(202) 544-4226

Attorney for Amici Curiae

i

QUESTION PRESENTED

Did the court below err in its holding

that the policy of sending public school

teachers to teach secular subjects in

nonpublic schools which are operated and

controlled by religious organizations

violates the establishment clause of the

First Amendment?

iii

TABLE OF CONTENTS

Page

Question Presented.....ccceecesesccecee

Table of AuthoritieS......eeseecescees

Interest of the Amici Curiae..........

Constitutional Provisions Involved....

Statement of the CaS@... cece eeesceces

Summary Of ArguMent.....-eeeeeeeeeeees

ALCQGUMOENE cece cece e reer reese seeseesees

1. The decision below correctly

applies the primary effect and

entanglement tests developed by

this Court but inadequately

deals with the secular purpose

COB ccc cece eee eseeeeeeeseeeseseseesecs

a. The Secular Purpose Test....

b. The Primary Effect Test.....

c. The Excessive Entanglement

WOE ccc eeeeeeeeeeseeeseeeeeeseecs

2. The decision below properly

rejects the child benefit theory

as it was applied to the fact

pattern in the case at bar........

COME LUSIONBcccccccescesescescseescceseeecs

Certificate of SeErviCe....ceeeeesecees

wo yy Dn DO WN

12

13

16

21

28

32

34

V

TABLE OF AUTHORITIES

CASES: Page

Allen v. Morton, 495 F.2d 65

(D.cC.Cir. oo PS PrrrrrrrrTrTT Tr 16

Board of Pouca ion v. Allen, 392

. > DPeccceceeeeeeces 28, 29

DiCenso v. Robinson, 403 U.S. 602

PUTTTTTTTULILILILILILTTTTrite 23

Engel v. Vitale, 370 U.S. 421

962 *eeeeeeeeeeeeeeeeeneeeeeeeeee ll

Essex v. Wolman, 342 rs + 399

~——"TS.D. Ohio 1972), aff'd. 409

U.S. 808 (1972)....... Ll, 12, 23, 24

Everson v. Board of Education,

330 U.S. l (1947) wc ccceeeecces 28, 29

Flast v. Cohen, 392 U.S. 83

PROG ccoeecoccoecoeceosooeceeooes 7

Houchins v. fore Inc., 438

U.S. l (197E) ccccccccccccscccceecs 31

Hunt v. McNair, 413 U.S. 734

(1973) wccccccccceceseesssesseseces 21

Lemon v. Kurtzman, 403 U.S. 602

(1971) wcccccccccees OB, 10, 23, 24, 25

Mueller v. Allen, U.S. P

103 S.Ct. 3062 (1983)... ce eeees 26, 27

School District of Abington

pounship Vv. Schempp, 374

. (19 FPPTTTITIILLETT LT ll

vi

Table of Authorities -- Continued Page

Valley Forge Christian College v.

Americans United for Separation

of Church and State, 454 U.S.

om opyrrryryrysryre TEELTTLELEL 7

CONSTITUTION:

United States Constitution

TTT TTT TTT passim

OTHER AUTHORITIES:

La Nove, “Church-State Problems in

New Jersey," 22 Rutgers L.Rev.

219 (Winter 1968).......... cocccse AS

Levy, “School Prayers and the

Founding Fathers," Commentary,

SOR. L9SZecccccccccccccccceces 9, 10

ne ee

1

No. 83-990

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

THE SCHOOL DISTRICT OF THE

CITY OF GRAND RAPIDS, et al.,

Petitioners,

vs.

PHYLLIS BALL, et al.,

Respondent s.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Pursuant to Rule 36.2 of the Rules of

this Court, the organizations named above

file this brief in support of

Respondents. Consent for the filing of

2

this brief has been obtained in writing

from the attorneys of record for the

parties in this case. Their original

letters have been filed with the Clerk of

this Court.

INTEREST OF THE AMICI CURIAE

The Baptist Joint Committee on Public

Affairs consists of representatives elec-

ted by each of eight cooperating Baptist

conventions in the United States:

American Baptist Churches in the U.S.A.;

Baptist General Conference; National

Baptist Convention of America; National

Baptist Convention, U.S.A., Inmc.; North

American Baptist Conference; Progressive

National Baptist Convention, Inc.;

Seventh Day Baptist General Conference;

and Southern Baptist Convention. These

Baptist groups have nearly 30 million

members and reflect the traditional

3

Baptist concern for proper church-state

relations. The Baptist Joint Committee

has as one of its mandates the obligation

to respond ". . . whenever Baptist prin-

ciples are involved in, or are jeopar-

dized through, governmental action. . .

." Among Baptists, religious liberty is

a fundamental and sacred principle. We

believe that the principle of religious

liberty as it is embodied in the First

Amendment to the Constitution of the

United States is at risk in the case at

bar.

The National Council of the Churches

of Christ in the United States of America

is a federation of thirty-three

Protestant and Eastern Orthodox religious

bodies in the United States with aggre-

gate membership totaling approximately

43,000,000. It is governed by a General

Board of 250 members chosen by the member

denominations in proportion to their size

4

and support. The General Board deter-

mines the policies of the organization

through debate, amendment and adoption of

carefully-prepared statements and resolu-

tions brought to it by its subordinate

program divisions. Several of these

policies affirm the principle of reli-

gious liberty, and it is on the basis of

these policies that we enter this case.

Both the Baptist Joint Committee and

the National Council of Churches played

an active role in working out the compro-

mises which made passage of the

Elementary and Secondary Education Act of

1964 possible. Those compromises were

designed to prevent government actions

like those in Grand Rapids. Therefore,

these amici are compelled by conscience

to file this brief.

The American Jewish Committee, a

national organization of approximately

50,000 members, was founded in 1906 to

5

protect the civil and religious rights of

Jews. It is the conviction of this orga-

nization that the civil and religious

rights of Jews will be secure only when

the civil and_ religious’ rights of

Americans of all faiths are equally se-

cure. To fulfill this aspiration, we

strongly support the constitutional prin-

ciple of separation of religion and gov-

ernment. This principle has been the

cornerstone of religious liberty in

America and, historically, has proven to

be of inestimable value to citizens of

all faiths and of none. Accordingly, we

believe that it is not a proper function

of government to subsidize, whether

directly or indirectly, any schools whose

chief reason for being is to propagate a

religious faith. This is why we join in

the submission of this brief.

6

CONSTITUTIONAL PROVISIONS INVOLVED

U.S. Constitution, Amendment I:

Congress shall make no _ law

respecting an establishment of

religion, or prohibiting the free

exercise thereof; or abridging the

freedom of speech, or of the

press; or the right of the people

peaceably to assemble, and to

petition the Government for a

redress of grievances.

STATEMENT OF THE CASE

Amici adopt the statement of the case

set forth in the brief for Respondents

filed with this Court. The issues of

fact have generally been agreed to by the

parties. Only the issue of the constitu-

tionality of the policy of the Grand

‘Rapids Public Schools (GRPS) of sending

teachers hired by GRPS and paid with

public funds into nonpublic schools which

are overwhelmingly sectarian to teach

secular subjects and the issue of stand-

ing need to be resolved.

4

Amici have competencies in First

Amendment issues as they relate to reli-

gious liberty and the separation of

church and state. While it is our firm

belief that the courts below were correct

in their determination that Respondents

had demonstrated standing according to

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

Valley Forge Christian College Vv.

Americans United for Separation of Church

and State, 454 U.S. 464 (1982), we do not

assert special insights on this issue

which would be of assistance to this

Court. Hence, we will not advance

\

arguments on the issue of standing.

SUMMARY OF ARGUMENT

When the instant case was before the

courts below, 546 F.Supp. 1071, 718 F.2d

1389, the issue of standing was settled

quickly and the bulk of the courts'

8

analysis centered on the establishment

clause tests developed by this Court and

clearly stated in Lemon v. Kurtzman, 403

U.S. 602, 612, 613 (1971):

Every analysis in this area

must begin with consideration of

the cumulative criteria developed

by the Court over many years.

Three such tests may be gleaned

from our cases. First, the stat-

ute must have a secular legisla-

tive purpose; second, its prin-

cipal or primary effect must be

one that neither advances. nor

inhibits religion; finally, the

Statute must not foster "an exces-

sive government entanglement with

religion.” (citations omitted).

Amici argue herein simply that the

policy adopted by GRPS to use public

funds to pay salaries of teachers to

teach secular subjects -- both "Shared

Time" and “Community Education" courses

-- in nonpublic schools which are almost

exclusively religious in nature violates

all three of the tests above and should

be considered unconstitutional. More-

over, the child benefit theory is not

applicable to this fact pattern.

ARGUMENT

In recent years revisionist histori-

ans have sought to challenge this Court's

interpretation of the establishment

clause of the First Amendment. General-

ly, these historians have been guilty of

using a limited data base to arrive at a

preconceived notion of what they wish the-

founders meant by the establishment

clause. They assume that those who wrote

and implemented the First Amendment did

not really mean what they said about the

reasons for and the scope of the Amend-

ment. Specifically, they assert that the

establishment clause was intended to

prevent the establishment of, or favoring

of, one religious belief over all

others. Sound scholarship is of a dif-

ferent opinion. As Prof. Levy has point-

ed out, when the First Amendment was

written and adopted there was a plural

10

establishment of religion in the country;

and the prohibition was against aid to or

Support of any religion, not just against

establishment of a single church. See

,

Levy, "School Prayers and the Founding

Fathers,” Commentary, Sept. 1962.

Justice Douglas, in a _ concurring

Opinion in Lemon, supra, at 628, stated

that the analysis of constitutional ob-

jections to the expenditure of public

funds for parochial schools would have to

take into account

the admitted and obvi

the raison d'etre ~ pe

schools is the propagation of a

religious faith. They also teach

secular subjects; but they came

into existence in this country

because Protestant groups were

perverting the public schools by

using them to ropa i

faith. The Cactolies’ mabuenian

rebelled. If schools were to be

used tO propagate a particular

creed or religion, then Catholi

ideals should also be ee

Hence the advent of i

po seo parochial

In large part as a result of the

ll

decisions in Engel v. Vitale, 370 U.S.

421 (1962), and School District of

Abington Township v. Schempp, 374 U.S.

203 (1963), an _ increasing number of

Christian schools -- both church related

and independent -- have been established

to permit parents to choose an education

for their children which involves oral

group prayer, other religious exercises,

and the teaching of as well as about

religion.

The Orthodox Jewish community has

traditionally provided a Hebrew Day

School for its children. Other religious

groups, e.g. the Black Muslims, have also

begun to operate their own schools in

order that their children may receive the

kind of religious instruction the parents

desire.

The basic purpose of denomination-

al education is to _ foster and

maintain the teachings of a denom-

inational religion. The religious

aspect of the curriculum must be

12

the principal and dominant reason

for the existence of such

schools. Essex v. Wolman, 342

F.Supp. 399, 419 (S.D. Ohio 1972),

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

The point is that these schools have

been established and operated -- usually

on a financially sacrificial basis -- for

religious reasons and for’ religious

purposes. Any public programs’ which

provide direct or indirect aid to

religious schools, unless that aid is de

minimis, must be given strict

constitutional scrutiny.

1. The decision below correctly

applies the primary effect and entangle-

ment tests developed by this Court but

inadequately deals with the secular pur-

pose test.

This Court, in developing the three

part establishment clause test -- secular

purpose, principal or primary effect, and

excessive entanglement -- has given the

lower courts reliable guidance for decid-

ing cases which deal with difficult and

emotional controversies. In the instant

13

case, the lower court properly applied

two of those tests to a fact pattern

reflecting another attempt at public

financing of selected programs in sectar-

ian schools and arrived at the sound

decision that the actions of GRPS were

unconstitutional. Amici asert that the

decision was constitutionally correct and

could be faulted only in that it did not

deal fully with the test for a secular

purpose.

a. The Secular Purpose Test

Normally it is not easy to demon-

strate that a legislative body which

grants broad discretionary powers to

develop educational programming for local

school districts to local public school

boards has anything but a secular purpose

in so doing. However, when a local

school district impiements these broad

discretionary powers by assigning teach-

ers paid out of public funds to teach

14

classes in secular subjects in religious

nonpublic schools, a secular purpose is

difficult to discern.

We understand that, generally, legis-

lative bodies -- whether Congress, a

State legislature, or a school board --

make their own determinations on the

constitutionality of their acts and that

courts usually accept as a rebuttable

presumption that they have acted with a

secular purpose. However, in this case

the presumption may be rebutted.

The law generally holds that when it

is evident that specific results will

flow from particular actions the person

who undertakes those actions intends the

results. A clear knowledge of the end

result of an act makes the triggering

action purposeful. Amici will discuss

below the fact that the clearly foresee-

able principal or primary effect of

GRPS's action was the advancement of

15

religion. When that effect has been

demonstrated, amici ask this Court to

consider that the school board knew that

the effect of its action in this case

would be the advancement of religion and

that, therefore, it had an unconstitu-

tional purpose of advancing religion.

In their joint brief (PJB), Pet ition-

ers spend less than 13 lines, using argu-

ment by assertion, to conclude that

"Clearly, the GRPS achieved its secular

educational purposes." (PJB 23) Amici

contend that the mere assertion that the

GRPS exhibited “secular educational pur-

poses" in their actions is not proba-

tive. Rather, amici contend that GRPS

did not operate in a vacuum. Either it

knew purposefully that public funds would

be used to aid religious schools or it

did not measure up to the duty of care

required of directors of a multimillion

dollar public operation. Simply, GRPS

16

acted to add faculty at public expense to

religious nonpublic schools. The argu-

ment that they were public school teach-

ers who remained public school teachers

is without merit. Studies have shown

that the type of relationship established

by GRPS tends to convert public school

teachers into parochial school teach-

ers. La Noue, "Church-State Problems in

New Jersey," 22 Rutgers’ L.Rev. 219

(Winter 1968). Amici believe that GRPS

demonstrated the type of purpose forbid-

den by the establishment clause.

Whatever the motives of the GRPS

might be, the purposes which it had in

instituting the policy of spending public

funds in parochial schools are invalid.

"Good motives cannot save impermissible

actions." Allen v. Morton, 495 F.2d 65,

72 (D.C.Cir. 1973).

b. The Primary Effect Test

The facts in this case reveal that

17

some 470 full-time and part-time teachers

were employed to teach the Shared Time

and Community Education courses in non-

public schools in Grand Rapids. During

the 1978-79 school year 9,494 nonpublic

school children were enrolled in these

courses and public funds totaling

$1,397,577.20 were spent to teach them.

By the i981-82 school year more than

11,000 nonpublic school children were

enrolled and more than double the amount

of public funds was expended --

approximately $3,000,000. In’ addition to

such core course supplements as physical

education, industrial arts, music and

art, courses such as remedial and enrich-

ment mathematics an4 reading have been

taught as part of the Shared Time program

in nonpublic Grand Rapids schools. So

too have highly desirable courses which

enrich the college preparatory curriculum

of the nonpublic school. Among Shared

18

Time courses offered were the following:

Humanities, Language Arts, Home

Economics, Science, Spanish, French,

Latin, Business, Social Studies, Year-

book, Calculus, Creative Writing, Psy-

chology, Journalism, Criminology, and

Advanced Biology. None of these courses

except physical education was required

for graduation from or promotion in any

nonpublic school, but all of them are

courses which secondary schools’ must

offer if they are to provide their stud-

ents with a curriculum which prepares

them for college admission.

By relieving religious schools of the

substantial cost of offering necessary

courses -- optional to the students but

not really optional to the schools -- the

primary effect of the GRPS policy is to

advance religion. The religious schools

are financially freed to offer religious-

ly impregnated core courses, to teach

19

religion, and to provide facilities for

religious education and religious exer-

cises. The nonpublic schools which have

participated in the program financed by

GRPS -- 28 Roman Catholic schools, 7

Christian schools, 3 Lutheran schools, l

Seventh Day Adventist school, and 1 Bap-

tist school -- have been directly aided

thereby in both their secular and their

sectarian educational efforts. It is not

children who have been aided per se.

Children have been aided only incidental-

ly in the process of enlarging the re-

sources available to religious schools

and, thereby, advancing religion.

The Court of Appeals for the Sixth

Circuit (at Joint Petition for Writ of

Certiorari, 35a, 36a) stated the conclu-

sions at which it arrived after a careful

examination of the record and the find-

ings of the District Court:

First, the schools with whom

20

the School Board of Grand ———

has contracted and in which these

classes are taught are religious

institutions created, controlled

and operated (as, of course, they

have a clear right to be) with the

advancement of their various reli-

gious faiths as a primary purpose.

Seconcg, the majority of the

controlling boards, administrators

and teachers in the schools are

adherents to the particular

school's religious mission, as are

the great majority of the parents

of the students and the students

themselves.

Third, the program has in-

creased to the point where it

involves 10% of the classroom time

of the schools concerned and a

total tax expenditure of

$6,000,000.

Fourth, a substantial number

of the teachers employed in the

Shared Time program were previous-

ly employed in the _ parochial

school concerned, and a majority

of teachers employed in the

Community Education classes are

teachers regularly employed in

teaching in the religiously

Oriented program of the _ schools

concerned.

Fifth, such supplementation of~

teachers’ salaries is a direct

benefit to all teachers in the two

programs, and through them to the

schools and to the religious

mission of the schools concerned.

21

Sixth, the District Judge

found, and we agree, that as to

the three schoo. systems con-

cerned, “a substantial portion of

the participating nonpublic

schools' ‘functions are subsumed

in the religious mission...'"Hunt

v. McNair, 413 U.S. 734, 743

(1973).

Amici agree with these conclusions

and emphasize the point that the action

by GRPS “is a direct benefit to all

teachers in the two programs, and through

them to the schools and to the religious

mission of the schools concerned." Be-

cause the GRPS has given direct and sub-

stantial public fund benefits to reli-

gious schools and their religious mis-

sion, that action patently transgresses

the requirement that state action not

advance religion.

c. The Excessive Entanglement Test

The GRPS, in establishing Shared Time

and Community Education programs which

facially attempted to avoid an unconsti-

tutional advancement of religion, estab-

22

lished programs which fail the excessive

entanglement test. Petitioners point to

the programs’ six year record of opera-

tion which they claim shows that the

programs existed without excessive entan-

glement. Amici assert that such a record

could only result from one of two alter-

natives: (1) In order to know that there

had been no excessive entanglement, a

constant monitoring at an unconstitution-

al level was necessary to determine that

the secular courses remained strictly

secular, that the leased classrooms re-

mained “desanctified," and that religious

symbols -- including the wearing of

school uniforms -- had not intruded to

the degree that state approval or spon-

sorship of religion could be inferred by

students, or (2) Monitoring was so nearly

absent that there was a failure to deter-

mine properly that where public funds

were spent religious and secular educa-

23

tion were kept scrupulously separated.

Amici argue that not only the presence

but also the absence of such monitoring

creates constitutional problems for these

programs.

In Lemon, supra, and pbDiCenso Vv.

Robinson, 403 U.S. 602 (1971), cases

dealing with aid to religious schools, it

was held that the administrative rules

established were such that the government

was excessively entangled with

religion. After that decision, Ohio's

legislature passed a tuition reimburse-

ment act under which a portion of tuition

paid to religious schools was returned to

parents who had children enrolled in

those schools. No restrictions were set

by the state to guarantee that the reim-

bursed tuition money would be spent for

non-religious purposes. This lack of

administrative control was held to be a

defect by a three judge court in Essex,

24

Supra at 416, which was affirmed by this

Court:

[T]he State retains a responsibil-

ity Of insuring that the Public

moneys thus provided and which

retain their Public character

throughout the tr

ansaction are

used for constitutionally permis-

In the instant case, if the kind of

arrangement which GRPS had with the reli-

gious nonpublic schools failed to incor-

porate sufficient administrative controls

to insure that public moneys were used

for strictly secular Durposes, that ar-

rangement is defective under the estab-

lishment clause. "{Alny general purpose

aid, lacking non-entangling restrictions

on use, constitutes almost per se viola-

.7

tion of the Establishment Clause." Id

at 414, 415 fn. 20.

Of further importance is the matter

Of which this Court Speke in Lemon,

Supra, at 622:

A broader base of entanglement

25

of yet a different character is

presented by the devisive

political potential of these state

programs.

& * * * *

Ordinarily political - debate

and division, however vigorous or

even partisan, are normal and

healthy manifestations of our

democratic system of government,

but political division along reli-

gious lines was one of the princi-

pal evils against which the First

Amendment was intended to protect.

The tential divisiveness of such

conflict is a threat to the normal

political process. (citations

omitted)

The potential for divisiveness along

religious lines is clear and present in

the GRPS scheme in question in the case

at bar. Approval by this Court of the

GRPS scheme will mean that such programs

will take on lives of their own and will

generate political divisiveness along

religious lines when further course

offerings are sought and shares of a

limited source of public funds are at

issue between public schools and reli-

26

gious schools. Further, approval of this

scheme would engend2r similar schemes all

across :he country. The ensuing contro-

versies between the advocates of free,

quality public education and those of

nonpublic education which is permeated

with religion would create divisiveness

along religious lines the likes of which

this country has not seen. The current

anti-clericalism would be multiplied many

fold.

Thus, it is amici's contention that

the GRPS scheme, as measured by this

Court's establishment tests, is constitu-

tionally defective. Further, we contend

that the fact pattern in this case makes

it clearly distinguishable from Mueller

v. Allen, 103 S.Ct. 3062 (1983). In

Mueller the Court divided 5-4 in holding

certain tax deductions for parents of all

school children to be constitutional even

27

though a preponderance of the deductions

went to parents of children in religious

schools. The Court based its holding on

the grounds that the tax deductions were

generally beneficial to all parents and,

more importantly, any aid went to parents

of the children involved and not to the

parochial schools themselves.

In the instant case, the aid went

Gicectiy to the religious nonpublic

school. This cannot be done without

transgressing the strictures of the es-

tablishment clause. Further, it is not

legally correct to argue that, because

the Shared Time and Community Education

courses were offered in both the public

schools and the nonpublic. religious

schools, the benefits flowed to all chil-

dren and, therefore, Mueller was control-

ling. In Mueller the tax deductions

became available at the same time to all

parents who qualified for those deduc-

28

tions. In the instant fact pattern, the

courses in question had long been avail-

able in the public schools. The GRPS

programs in question came into being in

order to aid nonpublic religious

schools. Because the GRPS~ scheme

amounted to aid to schools, the unconsti-

tutionality of that aid cannot be cured

by drawing parallels between course of-

ferings in public and nonpublic schools.

2. The decision below properly re-

jects the child benefit theory as it was

applied to the fact pattern in the case

at bar.

Petitioners’ argument (PIB 30,31)

that the GRPS's policy of paying for a

part of the education of a child in a

religious school is equivalent to the

child benefit theory enunciated in

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

(1947), and Board of Education v. Allen,

392 U.S. 236 (1968) is specious. That

is, as the Concise Oxford Dictionary

29

(7 ed. 1983) defines the word, it is

"fair or right on the surface but not in

reality."

Everson dealt with the permissibility

of the state choosing to pay for trans-

portation for children to attend church

related schools. The emphasis was on the

state's interest in protecting the safe-

ty, etc. of the children and the conclu-

sion was that the aid went directly to

the parents of the children who were the

beneficiaries of the transportation. The

aid did not go to the schools.

In Allen the Court held that the

benefits of a state statute authorizing

the purchase of textbooks which were then

loaned to children in parochial schools

inured to the children and their parents

and not to the school.

As has been demonstrated and as the

courts below held, the aid in question

went directly to the religious schools in

30

the case at bar and the religious aims of

those schools were advanced. Only as

children were the recipients of the edu-

cation available at the religious schools

could an argument be made for a child

benefit theory. In one sense, everything

that happens in a school is a child bene-

fit in that the children are the recipi-

ents of the offered education. However,

such an interpretation of the child bene-

fit theory makes it so broad it is mean-

ingless and, if such an interpretation is

allowed to be applied to religious

schools, it makes the establishment

clause a nullity.

Under the fact pattern of the instant

case, children were obliged to go to a

sectarian institution in order to obtain

these public benefits. This made the

sectarian institution the vehicle, con-

duit, channel, intermediary, and

proprietor of public resources for the

31

benefit of those children, and of those

only, who met its particular sectarian

criteria for admission. In the process,

these public resources became annexed to

the parochial school, extending i-s in-

Sstitutional scope to the benefit of its

religious sponsors. The children and

their parents were aided only to the

extent that nonpublic religious education

became a bargain at public expense. This

certainly cannot be admissible under this

Court's explication of the establishment

clause.

The child benefit theory may be de-

scribed as good, desirable, and/or expe-

dient in the abstract, but as this Court

observed in Houchins v. KQED, Inc., 438

U.S. 1, 13 (1978), “We must not confuse

what is *good,' ‘desirable,' Or

‘expedient’ with what is constitutionally

commanded by the First Amendment.” To

apply the child benefit theory to this

32

fact pattern runs contrary to the com-

mands of the First Amendment.

CONCLUS IONS

Amici cling to their traditional firm

suppoct of the constitutional requirement

of the separation of church and state.

We believe that both church and state

flourish best when the two are

separated. The financial support, promo-

tion, and preferment, of religion, which

are forbidden by the ‘Constitution, are

clearly at issue here. For these and the

reasons argued above, :amici pray that

this Court sustain the decision of the

Court of Appeals for the Sixth Circuit

and use this oppcertunity to enunciate

clear limits on the channeling of pur-

ported “child benefits” through sectarian

educational institutions.

33

Respectfully submitted,

JOHN W. BAKER

200 Maryland Avenue, NE

Washington, D.C. 20002

(202) 544-4226

Attorney for Amici Curiae

34

CERTIFICATE OF SERVICE

I, John W. Baker, hereby certify that

on June 8, 1984 I mailed first class

postage paid three copies of the fore-

going Brief Amici Curiae to each of the

following Attorneys of Record in this

case:

Albert R. Dilley, Esq.

201 Monroe Avenue N.W., Suite 600

Grand Rapids, Michigan 49503

Louis J. Caruso, Esq.

Solicitor General

760 Law Building--525 West Ottawa St.

Lansing, Michigan 48914

Stuart D. Hubbell, Esq.

400 E. 8th Street

Traverse City, Michigan 49684

John R. Oostema, Esq.

Baxter & Hammond

200 Oldtown Riverfront Building

248 Louis Street, N.W.

Grand Rapids, Michigan 49503

JOHN W. BAKER

200 Maryland Avenue, N.E.

Washington, D.C. 20002

(202) 544-4226

Attorney for Amici Curiae