Amicus Curiae Brief — Aguilar v. Felton

("7 "

Nos. 84-237, 84-238, and 84-239 Office - Supreme Court, U.S,

IN THE NOV 15 1064

Supreme Court of the United States

ZXANDER L. STEVAS:

OCTOBER TERM, 1984 CLERK

>_>

YOLANDA AGUILAR, et al.,

Appellants,

Ve

BETTY-LOUISE FELTON, et al.,

Appellees.

SECRETARY, UNITED STATES DEPARTMENT OF EDUCATION,

Appellant,

Ve

BETTY-LOUISE FELTON, et al.,

Appellees.

CHANCELLOR OF THE BOARD OF EDUCATION OF THE CITY OF NEW YORK,

Appellant,

Vv.

BETTY-LOUISE FELTON, et al.,

Appellees.

ON APPEAL FROM THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE AMERICAN CIVIL LIBERTIES UNION, THE

AMERICAN JEWISH CONGRESS, THE NATIONAL EDUCATION

ASSOCIATION, AND THE NATIONAL COALITION FOR PUBLIC

EDUCATION AND RELIGIOUS LIBERTY, et al., AMICI CURIAE,

IN SUPPORT OF APPELLEES.

NATHAN Z. DERSHOWITZ BURT NEUBORNE

National Coalition for Public CHARLES S. SIMS

Education and Religious Liberty American Civil Liberties Union

150 East 58th Street 132 West 43 Street

New York, New York 10155 New York, New York 10036

(212) 513-7676 (212) 944-9800

MICHAEL ‘SIMPSON MARC D. STERN

National Education Association American Jewish Congress

1201 Sixteenth Street, NW 15 East 84th Street

Washington, D.C. 20036 New York, New York 10028

(202) 822-7309 (212) 879-4500

nin

TABLE OF CONTENTS

QUESTION PRESENTED.......2.2.

INTEREST OF AMICI CURIAE.......

INTRODUCTORY STATEMENT

ARGUMENT:

THE ESTABLISHMENT CLAUSE

FORBIDS THE USE OF PUBLIC

SCHOOL TEACHERS TO TEACH

SECULAR SKILLS IN RELIGIOUS SCHOOLS

A. The Provision of Public

School Teachers to Parochial

Schools to Teach Secular

Skills Constitutes Forbidden

Aid to the Religious

Institution and Cannot Be

Fairly Characterized as Mere

Aid to the Child....

The Use of Public School

Teachers to Provide

Instruction in Secular

Skills on the Premises

of a Religious School

Constitutes a Per Se

Entanglement of Church and

State In Violation of the

Establishment Clause......

1. The Danger of Religious

Influence on Secular

Programs. >. . > — > > 7 > > > > > _ > > >

2. The Danger of Secular

Influence on Religous

PLOGLAMS. ceeecccccecceesssesseeeseds

CONCLUSION, *eee#es *eeeneeneee#es 0 00eeeeessseneneneee

TABLE OF AUTHORITIES

Cases Pages

Board of Education v.

Allen,

Pn rr CPD... cco cece eeces 7, 9, 16

Committee for Public

Education v. Nyquist,

SM bs ) Fee ee passim

Committee for Public

Education v. Regan,

444 U.S. 646 (1980)..... eccccce 8, 9, 10, 28

Everscen v. Board of

Education,

ie SEMPER e ace eee eeeeeceeeeeee passim

Hunt v. McNair,

ie CEU P Rho g og eccecoceces Ve 40, 43

Larkin v. Grendel's Den,

(jj MME. «ace e eg oeeseseoeseeees 24

Lemon v. Kurtzman,

| © “Se - Mela.) See seseeeoeces passim

Levitt v. Committee for

Public Education,

Dt EEE Eh ecco eeccesecosels Lay 20

Meek v. Pittenger,

421 U.S. 349 (1975). .ccccceeeeeveeee passim

Mueller v. Allen,

77 LeEd.2d 721 (1983). ceeeeeeeeeeee Dd, 8, 10

NLRB v. Catholic Bishop

of Chicago,

440 U.S. 490 (1979) cccccccccccccccces 35, 36

- ili -

Pierce v. Society of Sisters,

268 U.S. 510 (1925). cece eeeevees

Public Funds for Public

Schools v. Byrne,

590 F.zd 514 (3rd Cir.

aff'd mem.,

442 U.S. 907 (1979) ccweeceneeeneecvees

Public Funds for Public

Schools v. Marburger,

358 F. Supp. 29

(D.N.Y. 1973),

aff'd mem.,

417 U.S. 961 (1974) cece e eee e renee rveves

Rescue Army v. Municipal Court,

331 U.S. 549 (L947). cece seevees

Roemer v. Board of Public

Works,

426 U.S. 736 (1976) cece eeeeeeecevccees

School District of Grand

Rapids v. Ball,

cert. pending,

NO. 83-990. ce eee e eee rene resesees

Sloan v. Lemon,

413 U.S. 825 (1973) .ceeeeeees

Tilton v. Richardson,

403 U.S. 672 (LOT lL) cee weeveenenneveves

United Americans for

Public Schools v.

Franchise Tax Board,

419 U.S. 890, aff'g

No. C-73-0090 (N.D.Cal.

10

38

10

34

40

Walz v. Tax Commission,

oe ® a Me | rr PPerrrTT TTT TTrTrT. 5,

Wheeler v. Barrera, 7

Bae Wetec Ge Caerelececece seaeeetee GS, 29, 3U,

Wolman v. Essex,

342 F. Supp. 399

($.D. Ghio), aft’d.

ee

409 U.S. 808 (1972)..... Coc ecerrccesececces 8

Wolman v. Walter,

GS5 Geo BES CEDIaicoceéoecece TrTrTrrre passim

Statutory and Constitutional Provisions

Title I of the Elementary and

Secondary Schools Act of 1965,

Pub. L. No. 89-10, 79 Stat. 27,

20 U.S.C. § 2701 Ct SOGeeweeeeeeeeeaes 4, 18

Title VI, Civil Rights Act of 1964,

42 U.S.Ce §$ ZOU. ccccccccccccescececes aes 40

United States Constitution,

Amendment Lewes ceecereesececesesevees passim

Other Authorities

Chicago Tribune,

October 28, 1984,

SEC. 2, De Leccccccccccccccccesecsesesecs 40

QUESTION PRESENTED

Whether the government may undertake

part of the educational function of religious

schools by compensating and stationing public

school teachers in religious schools to teach

basic reading and mathematics skills without

thereby violating the Establishment Clause.

INTEREST OF AMICI CURIAE

Amici are organizations dedicated both

to preserving the guarantees of religious

liberty set forth in the First Amendment and

to strengthening and maintaining public

education as a bulwark of our nation's

democratic well-being. Amici, each of whom

is listed in the margin, have been involved

either directly or as amici curiae in many of

the leading Free Exercise Clause and

Establishment Clause cases in this Court and

throughout the country.'

The American Civil Liberties Union; the American

Jewish Congress; the National Education Association;

the National Coalition for Public Education and

Religious Liberty, on behalf of the following

constituent organizations: the American Association

of School Administrators, the American Ethical Union,

Americans for Religious Liberty, the American Humanist

Association, the Baptist Joint Committee on Public

Affairs, the Board of Church and Society of the United

Methodist Church, the Central Conference of American

Rabbis, the Minnesota Civil Liberties Union, the

Missouri Baptist Christian Life Commission, Monroe

Citizens for PEARL, Nassau-Suffolk PEARL, the Michigan

Council About Parochial Education, the National

Association of Catholic Laity, the National Council of

Jewish Women, the National Service Conference of the

American Ethical Union, Preserve Our Public Schools,

[cont'd. on next pg]

1

+ ee

act

ee

ES EE ee

With the consent of the parties,

indicated by letters lodged with the clerk,

we file this brief amici curiae to bring our

experience to bear on a case in which the

Court must once again decide the

permissibility of government aid to religious

schools. In our view, the resolution of this

case may well determine whether the

separation of church and state that the Court

has heretofore steadfastly protected will be

seriously undermined.

Public Funds for Public Schools of New Jersey, the

Ohio Association for Public Education and Religious

Liberty, the Union of American Hebrew Congregations,

the Unitarian Universalist Association; the Citizen's

Union (New York), the New York Society for Ethical

Culture, the United Community Centers (New York), the

United Parents At ociation of New York City, and the

Women's City Club of New York.

INTRODUCTORY STATEMENT

The New York City Board of Education

assigns hundreds of public school teachers to

some 231 parochial schoois to teach basic

reading and mathematical skills to children

with below-average educational skills in

localities with a high concentration of

children from lower-income families. The

classes, financed by Federal funds authorized

by Title IT of the Elementary and Secondary

Education Act of 1965,% are integrated into

the parochial school curriculum; are taught

on parochial school premises by public school

teachers who confer with their parochial

school colleagues on the progress of each

child; and are, quite properly, viewed as a

valuable educational component of the total

parochial school experience. Indeed, the

success of the Title I program significantly

: Pub. L. No. 89-10, 79 Stat. 27, as amended, 20

U.S.C. § 2701 et seq. (1982).

aids the ultimate success of the parochial

school's educational mission.

This case is not about whether the

delivery of such "remedial" educational

services to economically and educationally

deprived children attending parochial schools

provides educational benefits to such

children. Of course it does. Nor is it

about whether society may encourage the

delivery of such services by granting income

tax deductions to donors who elect to support

such a program, see Walz v. Tax Commission,

397 U.S. 664 (1970), or by granting certain

broadly based tax benefits to parents who

must bear a portion of its cost. Compare

Committee for Public Education v. Nyquist,

413 U.S. 756 (1973), with Mueller v. Allen,

77 L~Ed.2d 72 (1983). Nor is this case even

about whether such services may be provided

by the government to all poor children,

including children enrolled in religious

o §& «

schools, in a public setting. Compare Meek

v. Pittenger, 421 U.S. 349 (1975) with Wolman

v. Walter, 433 U.S. 229 (1977).

The only issue raised by this case is

whether the government may aid a religious

school in performing its core educational

function by stationing public school teachers

in religious schools to teach reading and

mathematics skills. Amici believe that when

the government sends public school teachers

into religious schools to teach secular

skills, the program cannot be characterized

as a permissible form of "aid to the child,"

as opposed to forbidden "aid to the religious

institution," without dissolving the

intellectual underpinning of the

distinction. Moreover, the physical mixing

of church and state which New York City's

program entails endangers both the

independence of the benefitted religious

institution and the secular nature of the

Title I educational program.

ARGUMENT

THE ESTABLISHMENT CLAUSE FORBIDS

THE USE OF PUBLIC SCHOOL TEACHERS

TO TEACH SECULAR SKILLS IN

RELIGIOUS SCHOOLS

A. The Provision of Public

School Teachers to

Parochial Schools to Teach

Secular Skills Constitutes

Forbidden Aid to the

Religious Institution and

Cannot Be Fairly Character-

ized as Mere Aid to the Child.

This is at least the twentieth time in

recent years that the Court has confronted

the problem of defining the restraints

imposed by the Establishment Clause on

attempts to channel public resources to

support religious education.? In an

3 Everson v. Board of Education, 330 U.S. 1 (1947);

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

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

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

U.S. 734 (1973); Levitt v. Committee for Public

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

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

Lemon, 413 U.S. 825 (1973); Wheeler v. Barrera, 417

U.S. 402 (1974); Meek v. Pittenger, 421 U.S. 349

(1975); Roemer v. Board of Public Works, 426 U.S. 736

(1976); Wolman v. Walter, 433 U.S. 229 (1977); New

[cont'd. on next pg]

understandable attempt to respect the core

values of the Establishment Clause while

accommodating the constitutionally protected

right to choose a religious education*, the

Court has attempted to distinguish between

permissible government aid to the parents or

children involved and forbidden aid to the

religious institution itself. See, e.g.,

Committee for Public Education v. Nyquist,

York v. Cathedral Academy, 434 U.S. 125 (1977);

Committee for Public Education v. Regan, 444 U.S. 646

(1980); Mueller v. Allen, 77 L.Ed.2d 721 (1983);

School District of Grand Rapids v. Ball, cert.

granted, 52 U.S.L.W. 3631 (U.S. Feb. 22, 1984) (No.

83-990). See also Wolman v. Essex, 342 F. Supp. 399

(S.D. Ohio), aff'd mem., 409 U.S. 808 (1972); Sos ydar

v. Wolman, 353 F. Supp. 744 (S.D. Ohio 1972), aff'd

mem. sub nom. Grit v. Wolman, 413 U.S. 901 (1973);

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

Supp. 29 (D.N.J. 1973), aff'd mem., 417 U.S. 961

(1974); United Americans for Public Schools v.

Franchise Tax Board, 419 U.S. 890 (1975), aff'g

No. C-73-G090 (N.D. Cal.); Public Funds for Public

Schools v. Byrne, 590 F.2d 514 (3rd Cir.), aff'd men.,

442 U.S. 907 (1979).

‘ The constitutional basis of a right to opt for a

religious education flows from both the Free Exercise

and Due Process Clauses. See Pierce v. Society of

Sisters, 268 U.S. 510 (1925).

413 U.S. at 780-87. Such a distinction is in

some respects artificial, since any aid to

parents and children inevitably aids the

institution they have chosen to attend by

freeing resources for use in other aspects of

the religious school's program. Id. at 783.

Nonetheless, distinguishing as it does

between social benefits such as bus rides and

diagnostic testing, on the one hand, and the

core educational function of religious

school, on the other, the line corresponds to

the Court's correct sense of a vital

Establishment Clause distinction between

permitted and forbidden government assistance

to religious education.

This distinction has permitted tangible

aid to religious education in the form of bus

transportation,> text book loans to

students,° tax benefits for contributions and

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

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

[cont'd. on next pg]

broadly based educational payments to

religious schools,’ assistance to parochial

schools in administering and grading state-

required standardized tests and in

administering and evaluating diagnostic

tests,® provision of therapeutic services,?

and provision of auxiliary educational

services to all children in a public

setting. !9

But see Public Funds for Public Schools v. Marburger,

358 F. Supp. 29 (D.N.J. 1973), aff'd mem., 417 U.S.

261 (1974).

7

v. Allen, 77 L.Ed.2d 721 (1983).

8 Wolman v. Walter, 433 U.S. 229 (1977); Committee for

Walz v. Tax Commission, 397 U.S. 664 (1970); Mueller

Public Education v. Regan, 444 U.S. 646 (1980).

? Wolman v. Walter, supra.

7 os. The Court has also approved federal con-

struction grants to sectarian colleges, Tilton v.

Richardson, 403 U.S. 672 (1971), state backing for

bonds issued by sectarian colleges, Hunt v. McNair,

413 U.S. 734 (1973), and grants to sectarian colleges

for maintenance of physical plant, Roemer v. Board of

Public Works, 426 U.S. 736 (1976), on the ground that

religiously affiliated colleges are not generally

pervasively religious. See Hunt v. McNair, 413 U.S.

at 743-44.

Conversely, whenever the State has

attempted to assist religious schools in

performing the basic teaching function which

is the raison d'etre of a religious school,

this Court has recognized that the Estab-

lishment Clause required the invalidation of

the program. See generally Nyquist, 413 U.S.

at 783-86. If public school teachers may

enter the parochial schools to teach secular

skills as part of the parochial school

curriculum under the rubric of permissible

"aid to children," no discernible, much less

principled, Establishment Clause check will

exist on massive aid to parochial schools.

Accordingly, this Court has repeatedly

invalidated attempts to subsidize the core

teaching function of parochial schools.

At the very outset of the Court's school

aid jurisprudence, all nine justices quite

plainly agreed that aid to the educational

function of such schools would be

unconstitutional. Everson v. Board of

Education, 330 U.S. 1 (1947). Later, when

Pennsylvania and Rhode Island sought to

subsidize parochial school teachers for time

spent teaching secular subjects, this Court

invalidated the program. Lemon v. Kurtzman,

403 U.S. 602 (1973). When New York sought to

pay parochial school teachers for preparing

tests for use in teaching secular courses,

this Court invalidated the program. Levitt

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

472 (1973). When Pennsylvania sought to pay

for instructional materials and aids to be

used in connection with secular subjects in

the parochial school curriculum, this Court

declared the program unconstitutional. Meek

v. Pittenger, 421 U.S. 349 (1975). See also

Wolman v. Walter, supra. Indeed, in Meek v.

Pittenger, supra, this Court explicitly

upheld a program that provided auxiliary

educational services to all students on non-

religious school premises, but struck down a

program designed to deliver auxiliary

educational services to parochial students in

parochial schools as an integral part of the

parochial school curriculum,

While the line between permissible “aid

to children" and forbidden aid to a religious

school has, at times, been a wavering one,

this Court has consistently recognized that

the on-premises teaching function is at the

heart of any educational enterprise.

Accordingly, this Court has refused to permit

public subsidization of the on-premises

teaching function of a religious school,

recognizing that, quite apart from the

substantial risk of unconstitutional

entanglement, see infra at 22-41, such

subsidization constitutes unmistakable

government aid to a religious institution in

violation of the Establishment Clause. As

the Court held in Meek, "it would simply

ignore reality to attempt to separate secular

educational functions from the predominantly

religious role performed by ... church-

related ... schools." 421 US. at 365. See

also Wolman v. Walter, 433 U.S. at 249-51;

Meek v. Pittenger, 421 U.S. at 363-66;

Committee for Public Education v. Nyquist,

413 U.S. at 781-83; Everson v. Board of

Education, 330 U.S. at 21-24 (Jackson, J.,

dissenting).

Appellants argue that, so long as aid is

couched in a form that minimizes the danger

of entanglement, the Establishment Clause

poses no obstacle to the use of public school

teachers to teach "remedial" secular skills

on the premises of a parochial school as an

integral part of the curriculum, However,

even apart from the question of entanglement,

public subsidization of the on-premises

teaching function of a parochial school has

repeatedly been held unconstitutional, and

judgment for the appellants would accordingly

require overruling Meek, Wolman, and Nyquist.

If the use of public school teachers for

on-premises teaching in a religious school is

valid in a Title I “remedial” context, it

must also be valid in an enrichment context;

in a program for gifted children; or as part

of a government takeover of broad segments of

the secular curriculum, ranging from physical

education to mathematics. Indeed, if the

benevolent fiction of viewing aid to non-

educational aspects of religious schools as

aid to children is extended to the use of

public school teachers for the on-premises

teaching of secular skills in religious

schools, then there would exist no logical or

principled stopping point prior to the

creation of joint educational enterprises,

with public school teachers undertaking to

teach broad areas of the secular curriculum

and religious educators accepting

responsibility for religious instruction.

Certainly neither the United States nor the

other appellants suggest one.!'!

'l whe Court should not content itself to permit this

benign, apparently circumscribed program to pass

constitutional muster, and ignore the Establishment

Clause problems that would be presented by a program |

sending public school teachers into religious schools :

to teach further portions or all of the secular |

curriculum. In a landmark case for modern

Establishment Clause doctrine, the Chief Justice wrote

for the Court that the development of a coherent body

of Establishment Clause principles requires the court

to be sure that a small step in a certain direction

will not lead to an undesirable destination:

[I]n constitutional adjudication some

steps, which when taken were thought to

approach ‘the verge,' have become the

platform for yet further steps. A certain

momentum develops in constitutional theory

and it can be a ‘downhill thrust' easily

set in motion but difficult to retard or

stop. Development by momentum is not

invariably bad; indeed, it is the way the

common law has grown, but it is a force to

be recognized and reckoned with. The

dangers are increased by the difficulty of

perceiving in advance exactly where the |

‘verge’ of the precipice lies.

Lemon v. Kurtzman, 403 U.S. at 624. See also Wolman

v. Walter, 433 U.S. at 251 n. 18 (recognizing

tension between Board of Education v. Allen and

“continued adherence to the principles announced in

our ee. cases" and declining, therefore, to extend

Allen). In short, the Court should not lightly

dismiss the prospect of finding itself ona

“slippery slope.”

It strains credulity and “ignores

reality" to suggest that direct public aid to

the secular curriculum represents aid only to

the child, but not to the institution

itself. State provision of teachers of

reading and mathematics subsidizes the core

educational function that is the sine qua non

of the operation of any scnool, public or

parochial. Paying for a mathematics teacher

is a far cry from paying for bus

transportation. Contrary to the appellants’

urgings, the Court's previous cases rest on

this understanding that the religious schools

as a whole have a religious purpose and

function which is inevitably aided by

government assistance to the core educational

endeavor, not on the narrow and crabbed view

that the only danger was that a particular

teacher would deliberately cross the line.

See, e.g., Meek v. Pittenger, 421 U.S. at

369-72.

Petitioners attempt to draw, but notably

not to justify on any principled basis, a

line that would permit aid in the present

context but would not necessarily sanction

aid to wider segments of the secular

curriculum in religious schools. Petitioners

seek to assure the Court that permitting

public school teachers to teach secular

skills on the premises of a religious school

pursuant to the Title I program does not

implicate the remainder of the secular

curriculum because Title I skills are

"remedial" and must by law supplement, and

not supplant, the existing curriculum. 20

U.S.C. §§ 2734(f£), 2736(c). However, such an

attempt to differentiate “remedial" or

"auxiliary" teaching from the “regular"

educational function of any school is both

educationally indefensible and wholly

impractical, as well as without any logic in

constitutional principle.

As an educational matter, no clear line

exists between remedial teaching and the

regular curriculum, especially at the level

of teaching basic skills. When a first-grade

teacher teaches a child to read, it is

impossible to divide the process between

regular and remedial teaching. If the

government may fund the so-called remedial

phase of the process, what principle will

preclude it from funding any subsequent

phase? Both blend indistinguishably into an

educational whole.

Moreover, from a practical standpoint,

the concept of remedial teaching, even if it

could be isolated and identified, is

logically indistinguishable from a host of

teaching functions, such as enrichment

programs designed to deepen the traditional

curriculum; programs to teach intellectually

gifted children; programs designed to enhance

artistic and mechanical skills; and programs

designed to increase vocational choice.

Thus, attempts to carve the teaching function

into slivers, some of which can be viewed as

part of the regular curriculum and some of

which would be viewed as Supplemental or

auxiliary, is nothing more than a blueprint

for the gradual public takeover of an

undefinable percentage, and perhaps all, of

the teaching responsiblity of a religious

school.

Whatever the undeniable social utility

of increasing the quality of education in our

nation's religious schools, it cannot be

achieved by diverting teachers from the

public schools to teach secular skills in

religious schools under the fiction that the

teachers are merely aiding children and not

subsidizing a religious institution. While

the concept of aid to children, as opposed to

aid to religious institutions, may have

principled meaning as applied to benefits

like bus transportation and health care, it

begins to lose principled meaning the closer

one gets to the core teaching function.

Indeed, even the provision of textbooks and

off-premises instructional services places a

good deal of tension on the distinction.

Wolman v. Walter, 433 U.S. at 25l n. 18.

Were the concept of “aid to children" to be

even further extended to accommodate the use

of public school teachers to provide

instruction in basic secular skills on the

premises of the religious school itself, the

distinction would cease to have meaning, and

virtually any form of aid to the secular

curriculum of a parochial school would be

valid, so long as it followed the appropriate

semantic formula of “aid to the child.”

Of course, to argue that public school

teachers may not be despatched to parochial

schools to teach secular skills to

disadvantaged children is not to suggest that

such teaching should not occur. However, the

combination of indirect subsidization through

the use of charitable constributions and

broad-based tax benefits and the existence of

mechanisms to permit the delivery of such

services to all children in a public setting

renders it unnecessary to erode the

Establishment Clause to achieve a socially

desirable end. We can have both respect tor

the Establishment Clause and effective

instruction of disadvantaged children in

parochial schools. !2

12 Although appellants urge that they tried measures

short of placing public school teachers in religious

schools, the record makes clear that such efforts were

half-hearted at best. Title I was passed in 1965; the

present program was in effect by 1966.

B. The Use of Public School

Teachers to Provide In-

struction in Secular

Skills on the Premises

of a Religious School

Constitutes a Per se

Entanglement of Church and

State In Violation of the

Establishment Clause.

In part A, supra, amici have argued that

paying public school teachers to teach

secular skills on the premises of a parochial

school must be viewed as government aid to a

religious institution. This Court has also

recognized that even if such a program could

be described as "aid to the child" and not

forbidden aid to a religious institution, it

nevertheless falls afoul of the Establishment

Clause because it results in the entanglement

of church and state.

The entanglement prong of this Court's

three-part test in Establishment Clause cases

is designed to advance two significant

policies. First, it safeguards the

independence of religious institutions by

assuring that secular officials do not

acquire the power to influence or interfere

with the decisions of religious bodies; and,

second, it assures that religious bodies do

not exercise influence in the administration

of government programs. The stationing of

public school teachers on parochial school

premises to teach secular subjects to

parochial school students compromises both

values.

l. The Danger of Religious

Influence on Secular

Programs.

The bulk of this Court's entanglement

analysis has centered on assuring that the

administration of secular programs involving

religious institutions remains free from

religious influence. See, e.g., Larkin v.

Grendel's Den, 459 U.S. 116, 125-27 (1982);

Wolman v. Walter, 433 U.S. at 254; Meek v.

Pittenger, 421 U.S. at 367-72; Lemon v.

Kurtzman, 403 U.S. at 618-19. Whenever a

program has exhibited the potential for

religious influence in the administration of

a secular program, this Court has invalidated

it.

In Lemon v. Kurtzman, Supra, this Court

invalidated a 15 percent state subsidy of

parochial teachers' salaries, designed to

reflect time spent teaching clearly secular

subjects, on the ground that the religious

nature of the institutions involved created a

danger that religious impulses would

influence the teaching of the secular

program. !3 403 U.S. at 615-20. In Committee

for Public Education v. Nyquist, this Court

invalidated state grants to parochial schools

for the maintenance of physical plant because

the religious nature of the institution

13 While the Court's analysis in Lemon centered on

entanglement, the case is equally explicable as an

example of this Court's refusal to permit public aid

to the on-premises teaching function of a parochial

school.

created a danger that the grants would be

used, not solely for the upkeep of secular

facilities, but for the maintenance of

religious facilities as well. 413 U.S. at

774-780. '4 In Levitt v. Committee for Public

Education, payments to parochial schools for

teacher-prepared texts were invalidated

because of the danger that religious concerns

would influence decisions about the content

of the tests. 413 U.S. at 480-81.'> In Meek

v. Pittenger, and Wolman v. Walter, payments

to parochial schools for instructional

materials and teaching aids were invalidated

for the same reasons. Indeed, the Court in

Meek ruled that the provision of auxiliary

14 whe Court's concern with entanglement in Nyquist is

equally explicable as a refusal to permit aid to a

religious institution, regardless of the aid's

intended use,

15 Levitt is yet another example of this Court's

refusal to countenance aid to the core teaching

function of a parochial school, no matter what form

the aid takes.

services to parochial school students on the

premises of the parochial school was invalid

because, despite the secular nature of the

services, the religious nature of the

institution created an inevitable risk that

religious influence would affect the secular

program. The Title I program at issue in

this case is, therefore, as the Second

Circuit ruled, directly governed by Meek, and

cannot be upheld without overruling that

decision.

This Court's understandable concern in

Lemon that the administration of a secular

teaching program in the context of a

religious school poses an inevitable risk

that secular teaching would influence

religious concerns has touched off a

legislative search for a fail-safe method of

aiding the so-called secular aspects of

parochial education without risking religious

intrusion into the process. Given this

Court's recognition that when secular

services are delivered by employees of

religious schools, the danger of religious

influence on the secular program is

unavoidable,'® the focus has shifted to

public delivery of the services.'’ Where the

services are delivered to all children in a

public setting (or are otherwise incapable of

religious influence) this Court has sustained

the programs.'8 Where, however, as here, the

services are delivered on the premises of the

religious school in a form that is clearly

subject to religious influence, this Court

has invalidated the program. Meek vy.

16 See, e.g., Wolman v. Walter, 433 U.S. at 254; Meek

v. Pittenger, 421 U.S. at 366; Committee for Public

Education v. Nyquist, 413 U.S. at 786-87 Lemon v,

Kurtzman, 403 U.S. at 618-19.

v7 See, e.g., Everson v. Board of Education, supra;

Wolman v. Walter, supra; Committee for Public

Education v. Regan, supra.

18 Everson v. Board of Education, 330 U.S. at 17-18;

Wolman v. Walter, 433 U.S. at 239-44; Committee for

Public Education v. Regan, 444 U.S. at 657-59,

Pittenger, supra; Wolman v. Walter, Supra.

Appellants argue that, despite the

conceded danger of improper religious influ-

ence on a secular educational program

whenever children are taught on the premises

of a parochial school, New York City's

program is acceptable because (1) little

evidence exists in the record that religion

has played a role in the Title I program in

New York City, and (2) since the teaching is

performed by public employees who are, often,

not adherents of the religion that sponsors

the school, the danger of religious influence

is so small that it can be ignored. This

argument cannot withstand analysis.

In the first place, although appellants

repeatedly refer to the record as undisputed,

the record in this case is not nearly

sufficient to warrant the conclusions

appellants seek to draw. Relying on Meek v.

Pittenger's clear holding that the

Establishment Clause does not permit the

public provision of teachers in religious

schools,'?

counsel below took the position

that the particular facts of the day-to-day

experience of such teachers in New York's

classrooms was irrelevant. Thus, plaintiffs

neither submitted their own evidence as to

the actual influence of the religious setting

on the religious school Title I teachers, or

the extent to which the Title I teachers

inhibited religious activities, nor cross-

examined defendants' testimony in that

regard. Accordingly, this record could

hardly support a new rule of constitutional

law. See Rescue Army v. Municipal Court, 331

U.S. 549 (1947). At the least, if the Court

believes that it may wish to reconsider the

firm rule of Meek and its predecessors, a

19 See also Wheeler v. Barrera, 417 U.S. at 428

(Powell, J., concurring) (doubting constitutionality

of utilizing public school teachers in religious

schools).

remand is necessary for a fuller factual

record. Cf. Wheeler v. Barrera, supra.29

Moreover, even those teachers who do not

share the religion of the parochial school to

which they are assigned will feel a degree of

constraint in assuring that lessons are not

incompatible with, or offensive to, their

religious “hosts". In addition, to the

extent that an effective Title I "remedial"

program requires coordination with the

general curriculum, Title I teachers must --

and do -- meet regularly with the parochial

school staff to dovetail the “remedial"

programs with the remainder of the

20 Amici, of course, do not urge such a remand,

believing that enforcement of the values of the

Establishment Clause requires a clear, prophylactic

line such as the Court has previously enunciated. A

rule which would impose on litigants seeking to

enforce vital constitutional rights the enormous

burden and expense of litigating the facts of the

secular nature of education in hundreds of parochial

$chool classrooms in large cities such as New York is

a prescription not only for entanglement, but also for

meaningless, because unenforceable, constitutional

guarantees,

curriculum, posing yet another likelihood

that the administration of the Title I

program will be influenced -- in perfect good

faith -- by the religious themes and values

that pervade the curriculum of any religious

school. Finally, entanglement is inevitable

(even if wholly unexplored in this record) by

virtue of the discipline that the religious

school imposes on students in Title I

programs: as set forth infra at 39-40,

religious schools (like others) suspend

students for breaches of school rules. Where

those suspensions are based on infractions of

religious duties, either such religious

violations will result in forced absence of

students from Title I classes -- and the

effective conditioning of access to a public

program on a religious test -- or

coordination will have to take place to

ensure that the student is allowed to attend

the “secular"™ class alone. The Court has

frequently condemned programs leading to such

"Scylla-Charybdis" choices. See, e.g.,

Committee for Public Education v. Nyquist,

413 U.S. at 788.%' Thus, despite New York

City's attempt to avoid the danger of

entanglement, any attempt to teach secular

subjects on the premises of a parochial

school, even by public school teachers, poses

an unacceptably high risk of religious

involvement in the secular program.

2. The Danger of Secular

Influence on Religious

Programs.

The bulk of this Court's concern in the

area of entanglement has been with assuring

21 Appellants also overlook the fact that approxi-

mately 30 percent of the teachers involved in New

York's program -- many of whom teach in the same Title

I school year after year -- are of the same religious

affiliation as the schools in which they teach, posing

the very real danger of a good faith and wholly

understandable tendency to blur the line between the

pervasively religious atmosphere of the school and the

wholly secular goals of the Title I program. See,

e.g., Lemon v. Kurtzman, 403 U.S. at 617-19; Wolman v.

Walter, 433 U.S. at 247-48, 254.

that secular programs are not influenced by

religious criteria. As this case

demonstrates, the Court's concern has

resulted in attempts to evolve a mechanism

for public aid to parochial education that

minimizes the possibility of religious

influence by excluding religious personnel

from the program and entrusting its |

administration to public school teachers.??

As amici have argued, such an “on-premises"

program constitutes forbidden aid to the

religious institution and creates an

unacceptable risk of religious influence on

the secular program. But even if the

benevolent fiction of "aid to the child" is

expanded to cover on-premises teaching in a

parochial school, and even if the

substitution of public school teachers for

parochiai school teachers mitigates the

22 See also School District of Grand Rapids v. Ball,

supra,

danger of religious influence on the secular

program, the cure is far worse than the

disease, because, by stationing public school

teachers in a religious school, New York

City's program threatens the autonomy of the

religious institutions themselves.

This Court has, thankfully, had little

experience with government attempts to

implant secular officials in religious

institutions to carry out purely secular

functions; but the widespread use of the

practice in less fortunate societies bears

unsettling witness to the threat to religious

autonomy entailed by such a program. In NLRB

v. Catholic Bishop of Chicago, 440 U.S. 490,

501 (1979), this Court recognized "the

critical and unique role of the [parochial]

school teacher in fulfilling the mission of a

church-operated school" whose very raison

d'etre is the propagation of a religious

faith.?? This Court construed the National

Labor Relations Act narrowly to avoid

importing a secular influence into the

parochial school. New York City's Title I

program, by placing a public school teacher

on the premises of a parochial school to

teach secular skills, constitutes a greater

threat to religious autonomy than the

prospect of a labor union in Catholic

Bishop. The threat is magnified because no

principled basis exists to distinguish

between government responsibility for

"remedial" teaching, as in Title I, and

government takeover of broad categories of

the parochial school curriculum, ranging from

programs for gifted children to programs

designed to enrich the traditional

curriculum. The fact that some religious

institutions are, apparently, prepared to

23 see also Everson v. Board of Education, 330 U.S. at

22-24 (Jackson, J., dissenting) (discussing Cannon Law

regarding religious education of Catholic children).

risk their autonomy in order to receive a

financial benefit does not mitigate the

danger. History teaches that religious

autonomy is at least as vulnerable to the

financial carrot as it is to the stick.?4

Even though New York City school

officials have commendably adopted certain

prophylactic measures designed to minimize

certain entanglement problems, these measures

themselves create impermissible

entanglement. Under the New York City plan,

public officials must never cease monitoring

all aspects of the Title I program in

parochial schools to safeguard against the

24 While it may be true that secular interference

under Title I in parochial schools occurs only at the

invitation of the parochial scool, many such schools,

which must operate on razor-thin budgetary margins,

could not afford to refuse substantial governmental

support of the secular curriculum, regardless of the

degree of governmental control that would accompany

the aid. A parochial school that steadfastly refused

public support of the secular curriculum even as other

neighboring schools accepted such support would soon

find itself uncompetitive, in terms of educati«nal

quality, tuition fees, or both.

many subtle forms of religious influence on

public school teachers in the ineluctably

religious environment of a parochial

school. “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." Lemon v.

Kurtzman, 403 U.S. at 619. The ongoing

monitoring obligations of the public

officials do not diminish simply because the

public school teachers are teaching

"“remediai” rather than “regular” classes.

Public Funds for Public Schools v. Marburger,

358 F. Supp. 29, 40 (D.N.J. 1973), aff'd

mem., 417 U.S. 961 (1974). The threat of

inadvertent fostering of religion persists no

matter what label is attached to the secular

course taught by the public school teacher in

a parochial school and no matter how

carefully public officials have structured

the program. The inherent potential for

fostering religion requires constant

oversight. Tilton v. Richardson, 403 U.S. at

683. Ironically, the city's obligation to

avoid Establishment Clause problems requires

the city to assume a watchdog role that, if

properly undertaken, itself creates obvious

and impermissible entanglement.

Moreover, once Title I funds are made

available to a parochial school in the form

of an on-premises public school teacher, the

parochial school's legal autonomy is

seriously compromised. For example, the

school's ability to give preference in

admissions to children of a particular

religion is jeopardized, to say nothing of

the degree to which employment practices may

mirror church doctrine. At a minimum, the

school's ability to influence the religious

judgments and activities of both parents and

children is severely limited. Thus, the

widely reported practice of one inner-city

Chicago parochial school, which receives

fully twenty percent of its annual budget in

the form of Title I and Title II grants, of

requiring its students and their parents to

attend mass, and suspending the students for

the failure of such attendance of parent or

child, car hardly be lawful. / See Chicago

Tribune, October 28, 1984, Sec. 2, p. l. It

has the direct effect of conditioning a

student's access to the federally funded

program on the child's and the child's

parents' adherence to specified religious

practices. Cf. Lemon v. Kurtzman, 403 U.S.

at 602 (White, J., dissenting) (government

aid to religious schools would violate

Establishment Clause if religious instruction

required or religious qualifications

imposed); 42 U.S.C. § 2000d (prohibition of

discrimination on basis of religion in

federally funded programs).

The combined effect of the physical

presence of governmental officials on the

premises of a religious institution and the

loss of legal autonomy triggered by the

receipt of federal funds, creates an

unacceptably high degree of secular intrusion

into the religious sphere.

CONCLUSION

As amici have argued, this case is not

about whether poor/children in parochial

schools should receive remedial educational

services. The sole issue is whether those

services may be provided by a public school

teacher who is stationed on the premises of

the parochial school itself. Since such a

physical inter-mixture of public and

parochial education (1) constitutes forbidden

aid to a religious institution, (2) creates a

risk that religious criteria will affect the

secular program, and (3) threatens the

autonomy of the religious institution, it

violates the Establishment Clause.

Respectfully submitted,

BURT NEUBORNE,

Counsel of Record

CHARLES S. SIMS

American Civil Liberties

Union

132 West 43 Street

New York, New York 10036

(212) 944-9800

MARC D. STERN

American Jewish Congress

15 East 84th Street

New York, New York 10028

(212) 879-4500

NATHAN Z. DERSHOWITZ

National Coalition

for Public Education

and Religious Liberty

150 East 58th Street

New York, New York 10155

(212) 513-7676

MICHAEL SIMPSON

National Education

Association

1201 Sixteenth Street, NW

Washington, D.C. 20036

(202) 822-7309

November 14, 1984