Amicus Curiae Brief — Aguilar v. Felton

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IN THE Woy 15 1984

Supreme Court of The United Statesdnoe:, — srvevas

OCTOBER TERM, 1984 | CLERK

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YOLANDA AGUILAR, et al.,

Appellants,

V.

BETTY-LOUISE FELTON, et al.,

Appellees.

SECRETARY, U.S. DEPARTMENT OF EDUCATION,

Appellant,

Vv.

BETTY-LOUISE FELTON, et al.,

Appellees.

CHANCELLOR OF THE BOARD OF EDUCATION

OF THE City OF New YOpPK,

Appellant,

V.

BETTY-LOUISE FELTON, et al.,

Appellees.

——

BRIEF AMICUS CURIAE FOR THE ANTI-

DEFAMATION LEAGUE OF B’NAI B’RITH

IN SUPPORT OF APPELLEES

JUSTIN J. FINGER

Counsel of Record

Anti-Defamation League of

B'nai B'rith

823 United Nations Plaza

New York, New York 10017

Attorney for Amicus Curiae

Of Counsel:

MEYER EISENBERG

JEFFREY P. SINENSKY

Jitt L. KAHN

RutTi TEITEL

Anti-Defamation League of B’nai B'rith

823 United Nations Plaza

New York, New York 10017

TABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF AUTHORITIES

INTEREST OF THE AMICUS CURIAE

SUMMARY OF ARGUMENT

ARGUMENT

I. NEW YORK CITY’S TITLE I PROGRAM

ADVANCES RELIGION BY SPONSORING

PUBLICLY FINANCED EDUCATIONAL

ACTIVITIES ON PAROCHIAL SCHOOL

PREMISES

A. New York City’s Title I Program Is Uncon-

stitutional On Its Face

B. New York City’s Title | Program Benefits

Religion By Advancing the Religious Values

of Church Schools

. By Providing Public Instruction in Church

Schools, Government Appears To Be En-

dorsing Religion and Religious Teaching ...

Il. NEW YORK CITY’S TITLE I PROGRAM

EXCESSIVELY ENTANGLES GOVERN-

MENT WITH RELIGION

A. Government Is Excessively Entangled with

Religion when Public and Parochial Activi-

ties Are Merged and when Constant Sur-

veillance Is Required to Maintain the Secu-

lar Content of Public Instruction

. The Surveillance Required By New York

City’s Title I Program Is Distinguishable

from that Routinely Required in Public

Schools and Can Be Avoided By Alternative

Programs ...

Ill. THE DIRECT AND SUBSTANTIAL GOV-

ERNMENT AID TO PAROCHIAL

SCHOOLS DERIVED FROM NEW YORK

CITY’S TITLE I PROGRAM CAN BE DIS-

TINGUISHED FROM GOVERNMENT

AID THAT HAS PREVIOUSLY BEEN

HELD PERMISSIBLE

CONCLUSION

il.

QUESTION PRESENTED

Is a government program which funds and administers

remedial education services provided by public employees or. the

premises of church schools during regular school hours

unconstitutional?

ill.

TABLE OF AUTHORITIES

Cases PAGE

Board of Education v. Allen, 392 U.S. 236 (1968) ..... 15

Brandon v. Board of Education, 635 F.2d 971 (2d Cir.

1980), cert. denied, 454 U.S. 1123 (1981) occ. §

Brown v. Board of Education, 347 U.S. 483 (1954) ... 4

Committee for Public Education and Religious Liberty

Vv. Nyquist, 413 U.S. 756 (1973) cooccccccccccceccscccsceseees 17

Everson v. Board of Education, 330 US. | (1947) ..... 14, 15

Larkin v. Grendel's Den, __. U.S. ___., 103 S. Ct. 505

REESE RTS eae 4

Lemon v. Kurtzman, 403 U.S. 602 (1971) ... 2, 11, 12, 15, 17

Levitt v. Committee for Public Education and Religious

Liberty, 413 US. 472 (1973) .....cccccccccoccesceccecsesssevese. 17

Lynch v. Donnelly, _-. U.S. ___, 104 S. Ct. 1355

EEE ee 2, 10, 17

Marsh v. Chambers, U.S. __, 103 S. Ct. 3330

ESET a, ee 2

McCollum v. Board of Education, 333 US. 203

EEE Sacer a 2, 8, 17

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

Mueller v. Allen, US. —_., 103 S. Ct. 3062

SERGE Te SRR a ee ee 2, 16, 17

School District of Abington Township v. Schempp, 374

i cceteemacens 8

Sherbert v. Verner, 374 U.S. 398 (1963) cocccccccccccccccceee. 2,7

Thornton v. Caldor, No. 83-1158 (Sup. Ct. argued Nov.

I tall isdlattcclndiiaideiinthdssantscintoniniesececsocesoenernecee 2

Wheeler v. Barrera, 417 U.S. 402 (1974) cocccccccce. 3, 4, 13, 14

Widmar v. Vincent, 454 U.S. 263 (1981) cocccccccccccccccceee 2, 8,9

Wolman v. Walter, 433 U.S. 229 (1977) coccccccccccccccceeees passim

Zorach v. Clauson, 343 U.S. 306 (1952) cocccccccccccccccceee 7, 8,17

Constitutional and Statutory Authorities

U.S. Constitution, Amendment I ............ccccccccccecceseeeeeeees passim

New York Constitution, Art. X1, § 30 o.cccccccccccccccccceceeees 13

ES 13

Other Authority

S. Rep. No. 146, 89th Cong., Ist Sess. (1965) ............ 13, 16

———

IN THE

Supreme Court of the United States

Nos. 84-237, 84-238, 84-239

YOLANDA AGUILAR, et al.,

Appellants,

Vv.

BeETTY-LOUISE FELTON, et al.,

Appellees.

SECRETARY, U.S. DEPARTMENT OF EDUCATION,

Appellant,

Vv.

BETTY-LOUISE FELTON, et al.,

Appellees.

CHANCELLOR OF THE BOARD OF EDUCATION

OF THE CiTy OF NEw YORK,

Appellant,

v.

BETTY-LOUISE FELTON, et al.,

Appellees.

>

ON APPEAL FROM THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

BRIEF AMICUS CURIAE OF THE

ANTI-DEFAMATION LEAGUE OF B’NAI B’RITH

The Anti-Defamation League of B’nai B'rith submits,this brief

in support of the appellees and respectfully submits}that the

judgment of the United States Court of Appeals for th Second

Circuit should be affirmed.

2

INTEREST OF THE AMICUS CURIAE

The Anti-Defamation Le? cue of B’nai B’rith was founded over

seventy years ago to combat racial and religious prejudice and

discrimination in the United States. The Anti-Defamation

League has always adhered to the principle that these goals, as

well as the strength, stability and integrity of our democracy, can

only be served by vigorous support of the First Amendment,

mandating separation of church and state and guaranteeing the

free exercise of religion.

In support of these beliefs the Anti-Defamation League has in

the past filed briefs amicus curiae in this Court supporting both

the mutual independence of government and religion, and the

First Amendment rights of religious minorities. E.g., Thornton v.

Caldor, No. 83-1158 (Sup. Ct. argued Nov. 7, 1984); Lynch v.

Donnelly, __. U.S. ——, 104 S. Ct. 1355 (1984); Marsh v.

Chambers, U.S. ___, 103 S. Ct. 3330 (1983); Mueller v.

Allen, ___. U.S. ——_, 103 S. Ct. 3062 (1983); Widmar v. Vin-

cent, 454 U.S. 263 (1981); Wolman v. Walter, 433 U.S. 229

(1977); Meek v. Pittenger, 421 U.S. 349 (1975); Lemon v.

Kurtzman, 403 U.S. 602 (1971); Sherbert v. Verner, 374 US.

398 (1963); McCollum v. Board of Education, 333 U.S. 203

(1948).

The rights of minority religions are no less at stake in establish-

ment clause cases than in free exercise cases. History has demon-

strated that the inevitable result of a union of government and

religion is the destruction of religious freedom for those who

believe differently from the majority. The Anti-Defamation

League, therefore, has consistently advocated a strict interpreta-

tion of the establishment clause, in order to protect “our remarka-

ble and precious religious diversity as a nation.” Lynch v.

Donnelly, 103 S. Ct. 1355, 1371 (Brennan, J., dissenting).

SUMMARY OF ARGUMENT

This case presents to the Court a narrow issue of constitutional

law. Neither congressional authority and commitment to funding

remedial educational services for economically and educationally

3

deprived children, nor the responsibility of local educational

agencies to provide public and nonpublic students with compara-

ble remedial services, is at issue. In supporting appellees’ chal-

lenge to the constitutionality of New York City’s Title I program,

Amicus submits that the City has chosen to provide those services

in a manner which is not required by federal law and which

violates the establishment clause. Cf. Wheeler v. Barrera, 417

U.S. 402, 419 (1974) (“the State is not obligated by Title I to

/ provide on-the-premises instruction.” ).

| The constitutionality of New York City’s Title I program is

f governed by this Court’s decisions in Meek v. Pittenger, 421 U.S.

349 (1975) and Wolmanv. Walter, 433 U.S. 229 (1977), holding

that government financed remedial instruction, guidance counsel-

“ee therapeutic services provided on parochial school prem-

Mes. violate the First Amendment. New York City’s Title I

program falls squarely within this prohibition and should be ruled

unconstitutional on its face.

Providing Title I services in parochial schools in conformity

with the parochial schools’ schedule and school calendar substan-

tially enhances the school’s ability to attract students, thereby

promoting its religious mission. The religious atmosphere under

which public employees are required to teach pervades the pub-

licly funded classes, further diffusing the schools’ religious

influence.

In addition, New York City’s Title I program requires interac-

tion between public and religious authorities which constitutes

excessive entanglement prohibited by the First Amendment. The

impermissible entanglement between government and religion

occasioned by the program can be eliminated by implementing

alternative plans for Title I services which would involve off-

premise teaching and counseling.

The availability of Title I services for educationally deprived

children from low income areas on the premises of church-spon-

sored schools, presents an appealing case in which personal sym-

pathies may be in conflict with our obligation to uphold

establishment clause principles. .4micus recognizes that only a

_

Ln ae, n.d _

i

4

thorough reformulation of New York City’s Title I program will

cure the constitutional defects inherent in the provision of pub-

licly funded education services on the premises of religious insti-

tutions. Amicus believes, however, that in order to maintain the

letter and the spirit of the First Amendment, the program must be

struck down.

The establishment clause principles which have guided this

country and this Court for over 200 years must be applied even-

handedly. This fundamental precept is crucial in cases in which

this Court’s decision will have a significant and lasting effect on

the institution of public education in the United States. See

Brown v. Board of Education, 347 U.S. 483 (1954).

ARGUMENT

POINT ONE

NEW YORK CITY’S TITLE I PROGRAM ADVANCES

RELIGION BY SPONSORING PUBLICLY FINANCED

EDUCATIONAL ACTIVITIES ON PAROCHIAL SCHOOL

PREMISES

A. New York City’s Title I Program Is Unconstitutional On

Its Face

The provisions of New York City’s Title I program compel a

holding of facial unconstitutionality. By providing remedial

instruction classes, guidance and counseling sessions in the perva-

sively religious atmosphere of church-sponsored elementary and

secondary schools, the City has extended the religious function of

the parochial school to encompass the publicly funded services.

Although appellants (defendants below) have stressed the

eighteen year history of New York City’s program as evidence

that Title I has not fostered religion, this Court need not engage

in an examination of the plan’s day-to-day implementation in

order to hold New York City’s Title I program unconstitutiona!.

See, e.g., Meek v. Pittenger, 421 U.S. 349 (1975); Wolman v.

Walter, 433 U.S. 229 (1977). While in Wheeler v. Barrera, 417

5

U.S. 402, 426 (1974), the Court refused to rule on the constitu-

tionality of a Title I plan not yet formulated, Stating ‘the First

Amendment implications may vary according to the precise con-

tours of the plan that is formulated,” in contrast, the Title |

program before the Court today is in place and operating. It can,

therefore, be examined in detail.

Although the majority in Meek, 421 U.S. 349, 372. did not rest

its decision on “effect” grounds, the Court noted the “potential for

impermissible. fostering of religion” which exists when public

employees provide services in church-related schools:

To be sure, auxiliary-services personnel, because not

employed by the nonpublic schools, are not directly sub-

ject to the discipline of a religious authority. But they are

performing important educational services in schools in

which education is an integral part of the dominant secta-

rian mission and in which an atmosphere dedicated to the

advancement of religious belief is constantly maintained.

Meek, 421 U.S. at 371 (citations omitted ).

The remedial instruction offered under Title | is equally, if not

more, important than the services challenged in Meek. Because

the instruction is intended to improve a child’s overall school

performance, frequent conferences between Title | professionals

and the parochial school authorities are essential. These meetings

must necessarily include discussion and evaluation of the paro-

chial student’s behavior, progress and/or problems in areas of

education under the control of religious authorities. In addition,

Title I professionals in some areas concentrate instruction on

skills easily transferrable to other classes and activities. In order

for Title I professionals to provide effective assistance to their

students, a thorough understanding of the nature and require-

ments of other school courses is necessary. The conferences

between public employees and parochial authorities are not

supervised or observed by Title I field supervisors. They provide

frequent opportunity for public employees to absorb the religious

values and influence of the host school and to pass it on, uncen-

sored, to their students.

6

The Second Circuit was unpersuaded by the appellants’ claim

that no recorded complaint has been made of interference by

parochial authorities with Title I services or that public teachers

have engaged in religious activity. The court of appeals, in fact,

slip op. at 35, found a “lack of any incentive for complaint”:

The nonpublic schools, which had to apply for Title I

assistance, are happy to have it, even, perhaps all the

more, if an occasional teacher or counselor has strayed

into religious paths. Similar considerations apply to the

students; they have chosen to have, or at least have become

used to having, some degree of religious content in their

instruction, and are unlikely to notice or complain if some

of this should find its way into the remedial classroom or

counseling center. The same considerations apply to the

parents. Teachers and counselors will not complain of

their own conduct even assuming they recognize, as they

may not always do, that they have crossed the line.

Slip op. at 35-36.

B. New York City’s Title I Program Benefits Religion By

Advancing the Religious Values of Church Schools

In Wolman v. Walter, 433 U.S. 229, 247 (1977), the Court

upheld public funding of remedial, therapeutic and guidance

services for parochial students only where the services were pro-

vided under circumstances reflecting “religious neutrality.” A

primary consideration in defining neutrality was the situs of the

services. The Wolman Court interpreted Meck, 421 U.S. at 371,

as “acknowledg[ing] the danger that publicly employed person-

nel who provide [analogous] services . . . might transmit religious

instruction and advance religious beliefs in their activities. But...

this danger arose from the fact that the services were performed

in the pervasively sectarian atmosphere of the church-related

school.” Wolman, 433 U.S. at 247 (citation omitted). It was the

environmental pressures which the Court found might alter

teachers’ behavior. Recognizing that the danger identified in

Meek originated from the religious nature of the institution, not

the students, 433 U.S. at 247-248, the Wolman Court held that

remedial and therapeutic services provided to parochial school

students at off-site neutral premises will not have the effect of

advancing religion in violation of the establishment clause.

Attempts by the City and the church schools to reduce the

religious atmosphere of the parochial host schools fail to neutral-

ize the effect of the Title I program, according to the finding of

the court of appeals below. Church schools are instructed by the

City to remove religious symbols from classrooms used for Title |

instruction. Further, religious school authorities have argued

that the schools in the program are not the “pervasively religious”

institutions described in Meek, 421 U.S. at 356. Notwithstand-

ing, the absence of religious symbols in Title I classes is immate-

rial in light of the religious symbolism which remains in hallways,

meeting rooms and other classrooms. Further, neither the

removal of religious symbols nor self-serving assertions by school

and religious authorities can change the essentially religious

nature of the schools. After reviewing the evidence, including

affidavits from religious school administrators, the Second Cir-

cuit stated: “Indeed, the picture that emerges is of a system in

which religious considerations play a key role in the selection of

students and teachers, and which has as its substantial purpose

the inculcation of religious values.” Slip op. at 42 (footnote

omitted ).

The benefit to parochial schools in this case goes far beyond

permissible accommodation. See Sherbert v. Verner, 374 USS.

398 (1963). Im Zorach v. Clauson, 343 U.S. 306, 313-314

(1952), this Court held that released time for religious instruc-

tion off the premises of public schools posed no establishment

problems, stating: “When the state encourages religious instruc-

tion or cooperates with religious authorities by adjusting the

schedule of public events to sectarian needs, it follows the best of

our traditions. For it then respects the religious nature of our

people and accommodates the public service to their spiritual

needs.” The Zorach Court went on to state, however, that

“[g]overnment may not finance religious groups ner undertake

religious instruction nor blend secular and sectarian education

8

....” 343 U.S. at 314. The facts of the case before the Court

today fall squarely within the prohibitions articulated in Zorach.

Mingling public and parochial classes on the premises of church

schools cannot be regarded as simply “respecting” the religious

nature of children who are eligible for Title I assistance and

attend parochial schools. Rather, the City’s Title I program

constitutes the “blend” of church and state education of the type

proscribed in Zorach.

C. By Providing Public Instruction in Church Schools,

Government Appears To Be Endorsing Religion and

Religious Teaching

This Court’s establishment clause analysis has consistently

reflected a heightened concern for government financed religious

activities which involve elementary and secondary school chil-

dren. See, e.g., School District of Abington Township v.

Schempp, 374 U.S. 203 (1963); McCollum v. Board of Educa-

tion, 333 U.S. 203 (1948). Cf Widmar v. Vincent, 454 US.

263, 274 n.14 (1981). Recognizing this concern in Brandon v.

Board of Education, 635 F.2d 971 (2d Cir. 1980), cert. denied,

454 U.S. 1123 (1981), the Second Circuit declared:

Our nation’s elementary and secondary schools play a

unique role in transmitting basic fundamental values to

our youth. To an impressionable student, even the mere

appearance of secular involvement in religious activities

might indicate that the state has placed its imprimatur on

a particular religious creed. This symbolic inference is

too dangerous to permit .. . . Misconceptions over the

appropriate roles of church and state learned during one’s

school years may never be corrected.

635 F.2d at 978 (citations omitted).

New York City’s Title I program entails considerably more

than “the mere appearance of secular involvement.” Jd. The

City has, in effect, inserted important and highly visible elements

of a public school program, operated by public school personnel

and funded by public money, into the curriculum of religious

el ee ae

9

schools, thereby supporting and advancing religion in violation of

the First Amendment.

The distinction between elementary and secondary schools, on

the one hand, and colleges and universities, on the other, is clearly

demonstrated by the Court’s opinion in Widmar v. Vincent, 454

U.S. 263, 274, n.14 (1981), where the majority stated: “Univer-

sity students are, of course, young adults. They are less impres-

sionable than younger students and should be able to appreciate

that the University’s policy [of allowing religious groups access to

campus facilities] is one of neutrality toward religion.” Unlike

the students in Widmar, however, the students in New York

City’s Title I program are elementary and secondary age level

children.

For these young and impressionable students, importing public

school teachers into the parochial schools and providing classes on

the religious school premises places the imprimatur of the state

upon the parochial schools. Students may be unable to distin-

guish the state as the administrative sponsor of the remedial

reading and arithmetic classes, in contrast to other reading and

arithmetic classes sponsored by the parochial school. The Title I

classes are integrated into the school schedule and are held in the

same buildings as the students’ regular classes. Moreover, it is

unlikely that students at this age would be aware that the state

pays the salary of some of their teachers, but that others are paid

by parochial authorities, much less the constitutional significance

of this difference.

Attempts by religious authorities to emphasize neutral aspects

of New York City’s church schools do not negate the powerful

symbolic benefit to religion derived from on-premise Title |

instruction. In striking dows: Massachusetts’ unconstitutional

delegation of legislative veto power to churches, this Court

declared “the mere appearance of a joint exercise of legislative

authority by Church and State provides a significant symbolic

benefit to religion in the minds of some by reason of the power

conferred.” Larkinv. Grendel's Den, _. U.S. —__, 103 S. Ct.

505, 511 (1982). The import of community reaction to relations

10

between government and religion was also noted in Lynch v.

Donnelly, _— U.S. —~, 104 S. Ct. 1355, 1367 (1984)

(O’Connor, J., concurring).

The state has effectively endorsed the religious mission of the

religious schools by entering into a joint education program on

the premises of church schools. The perception of the student and

adult community is that New York City has placed its imprima-

tur on religious institutions.

POINT TWO

NEW YORK CITY’S TITLE I PROGRAM EXCESSIVELY

ENTANGLES GOVERNMENT WITH RELIGION

A. Government Is Excessively Entangled with Religion

when Public and Parochial Activities Are Merged and

when Constant Surveillance Is Required to Maintain

the Secular Content of Public Instruction

This Court’s decisions on the unconstitutionality of publicly

funded education services on parochial school premises are con-

trolling. Meek, 421 U.S. 349. Cf. Wolman, 433 U.S. 229. Like

the programs at issue in these cases, New York City’s Title I

program creates excessive entanglement between government

and religion by merging secular and parochial instruction and by

promoting associations between public and parochial employees

for conferences in a pervasively religious atmosphere. Further,

an obligation is imposed on the state to scrutinize the religious

activities, content and values of secular personnel and instruction

because the remedial services are provided on the premises of

religious institutions.

Appellants have claimed that Title I supervisors ensure the

nonreligious content of Title I instruction. Ensuring religious

neutrality, in this case, however, requires excessive entanglement

of the state employees with religion. This Court has articulated

the constitutional necessity of such supervision:

To be certain that auxiliary teachers remain religiously

neutral, as the Constitution demands, the State would

EE LA, SL ET aes

11

have to impose limitations on the activities of auxiliary

personnel and then engage in some form of a continuing

surveillance to ensure that those restrictions were being

followed.

Meek, 421 U.S. at 372 (footnote omitted). This is because the

“State must be certain, given the Religion Clauses, that subsi-

dized teachers do not inculcate religion.” Meek, 421 U.S. at 371,

quoting Lemon v. Kurtzman, 403 U.S. 602,619 (1971). Relying

on Lemon, the Meek Court reiterated that the “prophylactic

contacts required to ensure that teachers play a strictly nonideo-

logical role . . . necessarily give rise to a constitutionally intolera-

ble degree of entanglement between church and state. 421 U:S.

at 370.

To the extent that New York City’s Title I supervision is con-

stant and intrudes on religious activities, therefore, it constitutes

impermissible excessive entanglement. Moreover, many areas of

interaction between public and parochial teachers are completely

unsupervised and present unrestricted opportunity for unconstitu-

tional blending of secular and sectarian instruction. See this

brief, Point I supra. The Supreme Court has stated, as the court

of appeals in this case noted, that a court cannot rely on the “good

faith and professionalism of secular teachers and counselors func-

tioning in church-related schools” to maintain a strictly nonreli-

gious posture. Meek, 421 U.S. at 369.

In Wolman v. Walter, 433 U.S. 229 (1977) this Court empha-

sized that the entanglement dangers recognized in Meek arise

from the religious nature of the host school, and ruled that pub-

licly funded therapeutic and remedial services could be provided

to parochial students in religiously neutral locations. New York

City’s church-sponsored schools are obviously not religiously neu-

tral. Neither the removal of some religious symbols nor the

assertions of school authorities as to the religious nature of the

schools can neutralize the essentially religious environment, or

obviate the need for constant government surveillance.

12

B. The Surveillance Required By New York City’s Title I

Program Is Distinguishable from that Routinely

Required in Public Schools and Can Be Avoided By

Alternative Programs

Supervision of New York City’s Title | professionals must

ensure that remedial instruction, guidance and counseling serv-

ices remain religiously neutral, and that public employees remain

independent of religious authorities and influence when they are

working in religious institutions. The Solicitor General has

argued, see Brief for the Secretary of Education 37, that the

surveillance required of public authorities over Title I instruction

and professionals “is no different, in principle, from the ‘surveil-

lance’ that may be necessary to ensure that teachers in the public

schools comply with this Court’s school prayer decisions.” The

Solicitor General’s argument is totally without merit. The obli-

gation to maintain the secular independence of public school

personnel operating within church-sponsored schools involves far

greater entanglement with religion than efforts by public school

authorities to maintain a religiously neutral environment in the

nonreligious public schools. Instructing public school teachers

that daily recitation from the Bible and state composed prayer

has been ruled unconstitutional by this Court requires no contact

with religious activities or religious authorities and takes place in

a nonreligious environment. In sharp contrast, supervision of

Title I professionals in church schools requires detailed observa-

tion of classroom activity, teacher conduct, and ongoing, continu-

ous contact between public and parochial personnel. Most

important, the activity which must be monitored by the state, as

well as the surveillance, takes place in a religious environment.

See Lemon, 403 U.S. 602; Meek, 421 U.S. 349.

The degree of surveillance required under Meek, which rises to

the level of unconstitutional entanglement with religion, can eas-

ily be avoided by an alternative Title I plan. Thus, a decision by

this Court striking down the present plan need not result in any

educational deprivation to parochial students. In developing

alternative plans it should be noted that the requirements of Title

13

I do not specify equality in services as regards public and paro-

chial school students. Although equality in expenditures is

required, 20 U.S.C. 2740(a), Congress left formulation of Title |

programs to the discretion of the local educational agency,

encouraging school districts “to employ imaginative thinking and

new approaches to meet the educational needs of poor children.”

S. Rep. No. 146, 89th Cong., Ist Sess., reprinted in 1965 U.S.

Code Cong. & Ad. News 1446, 1455.

Any alternate plan must take into consideration the constitu-

tional parameters in this area. In Wheeler v. Barrera, 417 US.

402, 421 (1974), the Court noted that Congress recognized “that

in some States certain programs for private and parochial schools

would be legally impossible because of state constitutional restric-

tions, most notably in the church-state area.” In New York City,

the court of appeals noted, an early proposal to include parochial

school students in Title I classes held in public schools with public

students was rejected in part because of concern that it would

violate the New York Constitution, Art. XI, § 3. Slip op. at 7.

This Court stated in Wheeler that it is the responsibility of the

local educational agencies to devise a constitutional means of

providing Title I services to parochial school students. Although

the Court recognized that it “may well be a significant challenge,”

417 US. at 423, Justice Blackmun’s language was instructive:

Of course, the cooperation and assistance of the officials of

the private school are obviously expected and required in

order to design a program that is suitable for the private

school . . . and the overall program is not to be defeated

simply because the private school refuses to participate

unless the aid is offered in the particular form it requests.

Wheeler, 417 U.S. at 424. Justice Blackmun also noted alterna-

tive programs listed in the Senate Report accompanying passage

of Title I in 1965:

Among the examples there listed are teacher aides and

instructional secretaries; institutes for training teachers in

14

special skills; supplementary instructional materials; cur-

riculum materials center for disadvantaged children; pre-

school training programs . . . enrichment programs on

Saturday morning and during summer; instructional

media centers to provide modern equipment and materi-

als; programs for the early identification and prevention of

dropouts; home and school visitors and social workers;

supplemental health and food services; classrooms

equipped for television and radio instruction; mobile

learning centers; educational summer camps; summer

school and day camps; shop and library facilities available

after regular school hours; work experience programs;

Saturday morning special opportunity classes; home ori-

ented bookmobiles; afterschool study centers. . . .*

Wheeler, 417 U.S. at 425, n.20.

Clearly, alternatives to programs on church school premises

exist which obviate the need for impermissibly entangling surveil-

lance, should New York City choose to implement an alternative

Title | program.

POINT THREE

THE DIRECT AND SUBSTANTIAL GOVERNMENT AID TO

PAROCHIAL SCHOOLS DERIVED FROM NEW YORK

CITY’S TITLE I PROGRAM CAN BE DISTINGUISHED

FROM GOVERNMENT AID THAT HAS PREVIOUSLY

BEEN HELD PERMISSIBLE

In Everson v. Board of Education, 330 U.S. 1, 17 (1947), the

Court upheld a state statute which authorized reimbursement to

parents for expenses incurred in busing their children to parochial

schools, while noting that “some of the children might not be sent

to the church schools if the parents were compelled to pay their

children’s bus fares out of their own pockets.” Similarly, the

Court noted the fact that “[p]erhaps free books make it more

likely that some children choose to attend a sectarian school,” in

* Amicus does not necessarily endorse all of the above-mentioned

approaches to Title I services. They are offered, as in Wheeler, simply

to demonstrate that numerous alternative programs can be considered.

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15

Board of Education v. Allen, 392 U.S. 236, 244 (1968). The

cost of bus fares and textbook loans, of course, does not compare

with the expense of remedial mathematics and English instruc-

tion, guidance and clinical services provided under Title I. More-

over, the Court’s decisions in Everson and Allen rest on grounds

which are easily distinguishable from the case at issue. In Ever-

son, the Court was concerned that reimbursing bus fares of public

school students, while denying the same benefit to parochial

school students, would evidence government hostility to religion.

Everson, 330 U.S. at 17-18. By contrast, invalidating Title I

instruction on parochial school premises would merely prompt the

City to devise a constitutional means of providing remedial serv-

ices to parochial school students.

In both Everson and Allen, the Court relied on the secular

nature of the state aid to parochial schools, i.e., bus rides and

nonreligious books. Allen, 392 U.S. at 244-245. In upholding

textbook loans, the A//en Court relied on the fact that the statute

in question would not involve the state with the teaching of relig-

ion in parochial schools. Allen, 392 U.S. at 248. While it is

difficult to change the secular nature of a book or a bus ride, the

aid provided under Title I, i.e., teachers, guidance and counseling

professionals, cannot be so easily contained. Teachers, unlike

books, can absorb the religious atmosphere in which they work

and, in turn, reflect that bias to students, with unconscious inat-

tention to establishment concerns. Lemon v. Kurtzman, 403 US.

602, 619 (1971) (“Unlike a book, a teacher cannot be inspected

once so as to determine the extent and intent of his or her personal

beliefs and subjective acceptance of the limitations imposed by

the First Amendment.”). Moreover, as Meek makes clear, we

cannot rely on the “good faith and professionalism” of teachers,

Meek, 421 US. at 369, to ensure the religious heutrality of public

instruction in church schools.

In addition, remedial education instruction is infinitely more

valuable to school children than state financed bus fares or text-

book loans. In the Senate Report accompanying the Elementary

16

and Secondary Education Act of 1965, the Labor and Public

Welfare Committee stated:

Title I can »e considered as another very potent instru-

ment to be used in the eradication of poverty and its

~ effects. Under title I of this legislation the schools will

become a vital factor in breaking the poverty cycle by

providing full educational opportunity to every child

regardless of economic background.

S. Rep. No. 146, 89th Cong., Ist Session, reprinted in 1965 U.S.

Code Cong. & Ad. News 1446, 1450. Remedial instruction and

services received through Title I funding may determine a child’s

future success in higher education or employment. Many parents

of children eligible under Title I would not send their children to

parochial schools if the remedial services were not available on

the premises. The availability of such services enhances the

attraction of parochial schools and may well augment student

enrollment, fostering the school’s religious mission. Undoubtedly,

the parochial school students receiving the services, and their

parents, are aware of the substantial benefit of receiving Title I

instruction during the regular school day on the premises of their

own parochial schools. No additional cost, traveling or time is

required of the parochial school students. In addition, the availa-

bility of on-site remedial education services operates as a power-

ful enrollment inducement for parochial schools.

These benefits are more substantial and more direct than the

tuition tax deductions at issue in Mueller v. Allen, _ U.S. —,

103 S. Ct. 3062 (1983). In Mueller, the state was not directly

involved with religious institutions. Tuition aid was funneled

through parochial school parents, which, the Court held,

“reduced Establishment Clause objections.” Mueller, 103 S. Ct.

at 3069. The Mueller Court ruled that the “attenuated financial

benefits flowing to parochial schools” under the challenged Min-

nesota statute, do not violate the prohibitions of the First Amend-

ment. In the case at issue, however, public funding flows directly

from the government into the parochial schools in the form of

remedial instruction and counseling services Public employees

IM,

aces ae

17

are present on parochial school premises to administer the pro-

gram, unlike Mueller, where tuition tax deductions were evalu-

ated by public employees in state offices. Although the majority in

Mueller rejected statistical evidence demonstrating the ultimate

beneficiaries of the tuition tax program, such statistics are not

necessary here. The involvement of church-related sclicols in the

Title | program is undisputed, and the availability of Title I

services on the premises of the parochial schools is a “blend [of]

secular and sectarian education” which is prohibited by the estab-

lishment clause. Zorach v. Clauson, 343 U.S. 306, 314.

In Lynch v. Donnelly, — U.S. —, 104 S. Ct. 1355, 1366

(1984), citing with approval to McCollum v. Board of Educa-

tion, 333 U.S. 203 (1948); Lemon v. Kurtzman, 403 U.S. 602

(1971); Levitt v. Committee for Public Education and Religious

Liberty, 413 U.S. 472 (1973); Committee for Public Education

and Religious Liberty v. Nyquist, 413 U.S. 756 (1973); Meek v.

Pittenger, 421 U.S. 349 (1975), this Court stated: “Taken

together these cases abundantly demonstrate the Court’s concern

to protect the genuine objectives of the Establishment

Clause.” Amicus submits that this Court’s precedential rulings

on government aid to religious schools compel a decision invali-

dating New York City’s Title I program as it relates to parochial

schools.

18

CONCLUSION

For the foregoing reasons, Amicus respectfully submits that

the judgment of the United States Court of Appeals for the

Second Circuit, holding New York City’s Title I program uncon-

stitutional, should be affirmed.

Respectfully submitted,

JUSTIN J. FINGER

Counsel of Record

Anti-Defamation League of

B'nai B'rith

823 United Nations Plaza

New York, New York 10017

Attorney for Amicus Curiae

Of Counsel:

MEYER EISENBERG

JEFFREY P. SINENSKY

Jitt L. KAHN

Rut! TEITEL

Anti-Defamation League of B’nai B'rith

823 United Nations Plaza

New York, New York 10017

Sea Ci* ——

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