Amicus Curiae Brief — Secretary, Dept. of Education v. Felton

H Office Supreme Court, U.S. |

FilLED

OCT 15 (964

STEVAS,

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

YOLANDA AGUILAR, et al.,

Appellants,

Ve

BETTY-LOUISE FELTON, et al.,

Appellees.

7 -

Consolidated With Nos. 84-238, 84-239

On Appeal from the United States

Court of Appeals for the Second Circuit

BRIEF OF THE UNITED STATES CATHOLIC

CONFERENCE AS AMICUS CURIAE

IN SUPPORT OF APPELLANTS

——_——_

WILFRED R. CARON

General Counsel

U.S. CATHOLIC CONFERENCE

1312 Massachusetts Ave., N.W.

Washington, D.C. 20005

(202) 659-6690

MARK E, CHOPKO

Assistant Gerera: Counsel

Of Counsel

WILSON - EPES PRINTING Co.. INC. « 789-0G96 - WASHINGTON, D.C. 20001

J

TABLE OF CONTENTS

INTEREST OF AMICUS .............. spnnnsenensenennpbedtennsienelate

SUMMARY OF ARGUMENT .........................................

ARGUMENT

I. THE ESTABLISHMENT CLAUSE WAS DE-

SIGNED TO PREVENT THOSF ENTANGLE-

MENTS BETWEEN CHURCH AND STATE

WHICH CLEARLY AND DIRECTLY IN-

VOLVE RELIGIOUS BELIEF, PRACTICE

ee IIIS cceccescescciensscecscoseretestvunsctinstsinanientnsiis

A. A Program Authorized by Congress and

Implemented by State and Local Govern-

ments Is Not Unconstitutional Under the

Establishment Clause, Unless It Is Clearly

Incompatible With the Clause —.....................

B. The Establishment Clause Reflects the Pre-

cise Intent and Judgment of the Framers,

Based on History and Experience, That

There Should Be No Governmentally Pre-

ferred Church and That the Government

Should Not Become Involved in Religious Be-

lief, Practice or Governance ...................... a

C. “Excessive Entanglement” Must Draw Its

Meaning F »m History and Experience. It

Exists When Government Is Involved in Re-

ligious Belief, Practice, and Governance.

When It Is Not So Rooted, It Can Lead To

The Invalidation of Government Programs

Which Do Not Threaten Authentic Constitu-

alae eeeacinbiatens

D. The Establishment Clause Was Intended to

Buttress the Free Exercise Clause. Applica-

tions Which Burden Religious Liberty Are

Necessarily Erroneous .......................------------+-

10

15

20

ii

TABLE OF CONTENTS—Continued

Page

Il. THE THREE-PART TEST SUGGESTS A

TWO-PART PURPOSE AND-EFFECT ANAL-

YSIS. “EXCESSIVE ENTANGLEMENT”

PROVIDES A MEANS TO _ DISCERN

WHETHER A PARTICULAR ACTION HAS

A PRIMARY EFFECT THAT ADVANCES

OR INHIBITS RELIGION ...................-..------------- 22

lll. THE DECISION BELOW DOES NOT AC-

CORD WITH THE DECISIONS OF THIS

COURT, ESPECIALLY THOSE WHICH

STRESS FIDELITY TO CONSTITUTIONAL

VALUES AS ILLUMINATED BY HISTORY.

THE “EXCESSIVE ENTANGLEMENT” CRI-

TERION WAS MISUNDERSTOOD AND MIS-

APPLIED ............-----.000----ce-cs--eecncssnoseensnenensnnswnsnnnsss 24

CONCLUSION ........---------cs--s--eceeneceseeeennsennnsnnnnennnesnsceenonses 29

iii

TABLE OF AUTHORITIES

CASES: Page

Americans United for Separation of Church and

State v. Blanton, 433 F. Supp. 97 (M.D. Tern.)

(three judge court), aff'd mem., 434 U.S. 803

|) ee eatin 18

Board of Education v. Allen, 392 U.S. 236 (1968).. 16

Brown v. Board of Education, 347 U.S. 483

I ON ES cs ene 16

Committee for Public Education and Religious

Liberty v. Nyquist, 418 U.S. 756 (1973) ............. 3

Committee for Public Education, Etc. v. Regan,

SS 22, 28

Engel v. Vitale, 370 U.S. 421 (1962) .................... .. 10, 20

Everson v. Board of Education, 330 U.S. 1 (1947).. 20

Felton v. Bell, 739 F.2d 48 (2d Cir. 1984) ........ 6, 7, 24-28

Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1809) ....5, 8, 28

Heart of Atlanta Motel v. United States, 379 U.S.

es sssnsenuionstinéicinn 6,9

Hunt v. MeNair, 413 U.S. 734 (1978) ..................... 9, 28

Jones v. Wolf, 448 U.S. 595 (1979) .................. erS 18

Kedroff v. St. Nicholas Cathedral, 344 U.S. 94

EES ESS EE, ae EO 18

Larkin v. Grendel’s Den, 459 U.S. 116 (1982) _.... 15

Leqal Tender Cases, 79 U.S. (12 Wall.) 457

i os pwenvpens 5, 6, 9, 28

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

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

a cubutasasuscnanenenmnzansons passim

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

a cstenee ae Y | SF F

Maruland & Virginia Churches v. Sharpsburg

Church, 396 U.S. 367 (1970) ......... reer 18

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316

a cecesmuaneumpnonennene 6,9

McDaniel v. Paty, 435 U. S. 5 _ 20, 21

Meek v. Pittenger, 421 U.S. 349 (1975) .............. 17, 18, 19,

21, 28

Meyer v. Nebraska, 262 U.S. 390 (1923) 0000000... 17

Mueller v. Allen, U.S. ——, 103 S.Ct. 3062

Er 3, 7, 18, 23, 25

”

iv

TABLE OF AUTHORITIES—Continued

Page

Pierce v. Society of Sisters, 268 U.S. 510 (1925) .... 17

Public Funds for Public Schools v. Marburger, 358

F. Supp. 29 (D.N.J. 1973) (three judge court),

aff'd mem., 417 U.S. 961 (1974) ...........-.---..-------- 25

Reemer v. Board of Public Works of Maryland,

rT Bt Se §) ae. 4, 5, 15, 17, 22, 23, 28

School District of Abington Township v. Schempp,

IRS ye 9, 15, 16, 21, 22

School District of Grand Rapids v. Ball, cert.

granted, 104 S.Ct. 1412 (1984) (No. 83-990) ......3, 7, 22

Serbian Eastern Orthodox Diocese v. Milivojevich,

BA TE, GI Ci i eice cistern cniseitenseneccsnceseincomce 18

Sherbert v. Verner, 374 U.S. 398 (1963) -................ 20, 21

Speiser v. Randall, 357 U.S. 513 (1958) ................. 20, 21

Tilton v. Richardson, 403 U.S. 672 (1971) ............ 9

Torasco v. Watkins, 367 U.S. 488 (1961) ................. 10, 20

Vermont Yankee Nuclear Power Corp. v. Natural

Resources Defense Council, 435 U.S. 519 (1978)... 6, 9

Walz v. Tax Commission of New York, 397 U.S.

2), ae 15, 17, 22

Wheeler v. Barrera, 417 U.S. 402 (1974) ................. 25

Wisconsin v. Yoder, 406 U.S. 205 (1972) ............. 16, 17, 20

Wolman v. Walter, 433 U.S. 229 (1977) ........ 17, 18, 19, 28

Zorach v. Clausen, 343 U.S. 306 (1952) .............-.-... 14

CONSTITUTIONAL AND

STATUTORY PROVISIONS:

United States Constitution, amend. 1 ...................... passim

OO I Fe TI cricscscrnsentnsnssencssmnetccanennepesenaswesvennnnniio 25

lf | Rene wine 25

EB i acrtncitccncnccsencoveinncennsecnnninesstancecmeanenennes 25

TFG, BEI asec eciececisvscscccccsesenscesenenssenesonenanetoceneness 25

Pub. L. No. 97-35, 95 Stat. 464, Title y, Subtitle

D (1981), codified at, 20 U.S.C. § 3801 et seq....... 2

Bp WEBS... 0 I csi qriccenscseceencessescnetsinnesiteninineiveonenannen 2

Northwest Ordinance, Art. III, Ch. VIII, 1789

I na icenaneeaannedenianeniaianla 14

v

TABLE OF AUTHORITIES—Continued

LEGISLATIVE MATERIALS: Page

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

reprinted in [1965] U.S. Code Cong. & Ad.

I a as 25, 26

S. Rep. No. 376, 32d Cong., Ist Sess. (1853) ......... 10, 13,

14, 20

1 Annals of Congress (Gales & Seaton eds. 1789).. 11, 13

MISCELLANEOUS:

C. Antieau, A. Downey, E. Roberts, Freedom from

Federal Establishment (1968) —........-.00..00000000002.. 14

W. Bower, Church and State in Education (1944). 16

Corwin, The Supreme Court As National School

Board, 14 Law & Contemp. Probs. 3 (1949)... 11,13

Debates on the Adoption of the Federal Constitu-

tion (2d ed. J. Elliott ed. 1836) ........000000000... 11

W. Dunn, What Happened to Religious Education?

SR ate YA es ee ee Rie 8 oo . 18, 16

B. Long, Genesis of the Consticution of the United

AIRES NR Se ae aOR ee EO 10

M. Malbin, Religion and Politics—The Intention of

the Authors of the First Amendment (1978) ....... 11,13

R. McCarthy, et al., Disestablishment a Second

RRR AEP bea Ri aa 16

A. Stokes, Church and State in the United States

ee ee Canes . <5 See aes 13, 20

J. Story, Commentaries on the Constitution of the

I (cA 11

A. de ’Tocqueville, Democracy in America (1831).. 16

U.S. Office of Education, Program Guide No. 44

I a ee 27

L. Whipple, Ovr Ancient Liberties (deCapo ed.

a ee 10

Wilson, The School Aid Decisions: A Chronicle of

Dashed Expectations, 3 J. Law & Edue. 101

SRA ee a a a 24

Young, Constitutional Validity of State Aid to

Pupils in Church-Related Schools—-Internal Ten-

sion Between the Estabiishment and Free Frer-

cise Clauses, 38 Ohio St. L.J. 783 (1977) ............ 18

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

No. 84-237

YOLANDA AGUILAR, et al.,

~ Appellants,

BETTY-LOUISE FELTON, et al.,

Appellees.

Consolidated With Nos. 84-238, 84-239

On Appeal from the United States

Court of Appeals for the Second Circuit

BRIEF OF THE UNITED STATES CATHOLIC

CONFERENCE AS AMICUS CURIAE

IN SUPPORT OF APPELLANTS

INTEREST OF AMICUS

The United States Catholic Conference (“USCC”) is

a nonprofit corporation whose members are the active

Catholic Bishops in the United States. The interests of

the USCC include the areas of education, social welfare,

health and hospitals, family life, immigration, poverty

assistance, youth activities, and communications, with

emphasis on the preservation of religious liberty. When

_ deemed appropriate and permitted by court rules or prac-

. tiee, the USCC offers its views in litigation touching is-

sues pertinent to its activities, particularly when they

affect the organizations and people of the Catholic

Church in the United States.

2

Over the past nineteen years, pursuant to Chapter 1

of the Education Consolidation and Improvement Act

and its predecessor, Title I of the Elementary and Sec-

ondary Education Act,' the New York City Board of

Education has provided remedial education to economi-

cally and educationally deprived children in both public

and private schools, including religiously affiliated schools.

With respect to the latter, after comprehensive study

and experimentation with other formats, the City of

New York concluded that an on-premises program of

remedial instruction maximizes the educational benefits

made available by Congress. The United States Court

of Appeals for the Second Circuit has held that this

on-premises program violates the Establishment Clause

of the First Amendment,*? thereby frustrating the will

of Congress and its implementation by New York City.

A reversal of that decision would enable school districts

to decide how best to implement Congress’ goal of quality

education for all children without regard to the public

or private character of their schools.

Through their counsel, all parties consent to the ap-

pearance of this amicus.

SUMMARY OF ARGUMENT

The Court’s most recent decisions have contributed

new cogency to Establishment Clause analysis through

1On July 1, 1982, the Elementary and Secondar, Education Act

(ESEA) of 1965 was amended and superseded by che Education

Consolidation and Improvement Act (ECIA) of 1981. Pub. L. No.

97-35, 95 Stat. 464, Title V, Subtitle D (1981). Chapter 1 of the

ECIA incorporated by reference most provisions of Title I of the

ESEA which were the subject of this lawsuit when filed in 1978

and includes identical provisions governing participation of private

school students. See 20 U.S.C. § 3803 (1982). Although the ESEA

was amended and superseded by the ECIA during the pendency of

this action, the parties and the court of appeals have referred to

the program as “Title I.” This amicus will do likewise.

2 U.S. Constitution Amendment 1 provides in pertinent part that

“Congress shall make no law respecting an establishment of

religion .. .”

8

an appropriate and essential emphasis on the authentic

purposes of the Establishment Clause, according to “what

history reveals was the contemporaneous understanding

of its guarantees.”* Lynch v. Donnelly, US. —,

104 S.Ct. 1355, 13859 (1984). See Mueller v. Allen, -——

US. , 103 S.Ct. 3062, 3069 (1983).

In service to the Court, in Mueller v. Allen, supra,

this amicus examined the precise generative and legisla-

tive history of the Establishment Clause, as well as the

“primary effect” component of the three-part test in light

of this history. In School District of Grand Rapids v.

Ball,t this amicus has applied its analysis in Mueller

with particular emphasis on the “secular purpose” cri-

terion as the analytical vehicle for giving due recogni-

tion to government’s responsibility to forge and imple-

ment policy for the public welfare, unimpeded by vague

and conjectural constitutional objections. It also sug-

gested an analytical identity between the “primary ef-

fect” and “excessive entanglement” criteria. Here this

amicus focuses more particularly on the meaning of “ex-

cessive entangelement”, and its analytical identity with

“primary effect”, as but an alternate means to judge

whether state action impermissibly advances or inhibits

religion.

The Establishment Clause was intended to prevent the

new federal government from prescribing, approving or

interfering in religious belief, practice, or governance.

The Establishment Clause and the Free Exercise Clause

’ Chief Justice Burger in his separate opinion in Committee for

Public Education and Religious Liberty v. Nyquist, 413 U.S. 756.

802 (1973) indicated that “experience and history” rather than

“legic” form the premise for this Court’s treatment of Establish-

ment Clause issues. This theme is reinforced by this Court's

opinion in Lynch v. Donnelly, reemphasizing the importance of

history in constitutional analysis. —— U.S. , 104 S.Ct. 1355,

1359 (1984).

* School District of Grand Rapids v. Ball, cert. granted, 104 S.Ct.

1412 (1984) (No. 83-990).

4

were united to achieve those ends. However, “hermetic

separation” of church and state was not required. Roe-

mer v. Board of Public Works, 426 U.S. 736, 745-46

(1976). Church and state have served and continue to

serve many important public interests in common, in-

cluding education, ard their involvement with each

other to this day are many and varied. To distinguish

valid from invalid involvements, this Court has developed

the well-known three-part test of purpose, effect and en-

tanglement. Lemon v. Kurtzman, 403 U.S. 602, 612-13

(1971) [hereinafter Lemon].°

The reliance of the court below on “excessive entangle-

ment” calls for a critical reassessment of that branch of

the three-part test. That phrase connotes only particu-

lar kinds of church-state involvement which are “fraught

with the sort of entanglement that the Constitution for-

bids.” Lemon, 403 U.S. at 620. In light of the au-

thentic objectives of the Establishment Clause, entangle-

ment becomes excessive, hence invalid, when the state be-

comes involved in matters of religious belief, practice,

or governance. When that occurs, the state is in a posi-

tion to sponsor or interfere with religion. See Koemer v.

Board of Public Works, 426 U.S. at 747-48. Such state

actions raise the spectre of establishment as that term

was understood by the Framers, with consequent poten-

tial burdens on individual! liberty. In the absence of such

involvement, there is no state activity that may properly

be considered as “excessive entanglement” in a proper

constitutional sense. Uniess “excessive entanglement” is

firmly grounded in authentic constitutional values, it can

cause the invalidation of important government pro-

grams despite the absence of genuine mischief.

5 As stated in Lemon v. Kurtzman [hereinafter Lemon], the

three part test is: first, the statute must have a secular legislative

purpose; second, its principal or primary effect must be one which

neither advances nor inhibits religion; and third, the statute must

not foster excessive government entanglement with religion. 403

U.S. 602, 612-13 (1971) Lemphasis added].

5

There is an intimate connection between “primary

effect” and “excessive entanglement”. This Court in

Roemer came very close to making the connection out-

right when it referred to “primary effect” and “exces-

sive entanglement” as, respectively, the “substantive”

and “procedural” sides of the same effects analysis. See

426 U.S. at 755-63. Under either criterion, the court

must evaluate whether the state action “sponsors” (ad-

vances) or “excessively interferes with” (inhibits) re-

ligion. Jd. at 747-48. Both are directed at the same ills,

namely establishment with its inherent threat to reli-

gious liberty. Further clarification of this Court’s evalu-

ative criteria could simplify the analytical process and

avoid results, like that on review here, whereby impor-

tant legislative programs are stricken without basis in

authentic constitutional values.

In words especially suited to this case, Chief Justice

Marshall counselled: “But it is not on slight implica-

tion and vague conjecture that the legislature is to be

pronounced to have transcended its powers, and its acts

to be considered as void. The opposition between the

constitution and the law should be such that the judge

feels a clear and strong conviction of their incompatabil-

ity [sic] with each other.” Fletcher v. Peck, 10 U.S. (6

Cranch) 87, 128 (1809). Acts of the Congress should

not be invalidated absent “clear incompatibility” with

the Constitution. Legal Tender Cases, 79 U.S. (12

Wall.) 457, 530-31 (1871). In its more recent Establish-

ment Clause decisions, the Court has stressed that a dec-

laration of unconstitutionality should occur only when,

by realistic measure, the state is clearly and directly

involved in religion. See, e.g., Lynch v. Donnelly, 104

S.Ct. at 1361. “[T]he measure of constitutional adjudi-

cation is the ability and willingness to distinguish be-

tween real threat and mere shadow.” Marsh v. Cham-

bers, US. , 103 S.Ct. 3330, 3337 (1983). “It

is incumbent, therefore, upon those who affirm the un-

constitutionality of an act of Congress to show clearly

that it is in violation of the provisions of the Constitu-

6

tion. It is not sufficient for them that they succeed in

raising a doubt.” Legai Tender Cases, 79 U.S. at 5381.

These principles rest upon important constitutional

and policy grounds. The constitutional authority to re-

solve public debates over which actions should be under-

taken to promote the public welfare is entrusted pri-

marily to the legislative branch. McCulloch v. Maryland,

17 U.S. (4 Wheat.) 316, 420-21, 423 (1819). The Con-

gress’ resolution of the public interest should never

lightly be set aside, especially when there is room for

legitimate disagreement in setting the course of public

policy. E.g., Vermont Yankee Nuclear Power Corp. v.

Natural Resources Defense Council, 435 U.S. 519, 557-

58 (1978); Heart of Atlanta Motel v. United States, 379

U.S. 241, 261-62 (1964).

The court below annulled Congress’ judgments and the

City’s carefully considered implementation of Title I,

and dismantled a remedial educational program which

the court conceded “has done so much good and little,

if any, detectable harm.” Felton v. Bell, 739 F.2d 48

(2d Cir. 1984), S.G. App. 52a.* It did so because it per-

ceived “excessive entanglement” in one minor aspect of

the program whereby public school supervisors review

the classroom work of Title I teachers. S.G. App. 35a-

36a, 38a-39a. That supervision, among other things, is

for the professional evaluation and development of the

teacher. Because it also serves to assure that Title I

courses are not used to advance religious views of the

host school, the court said “this very surveillance con-

stitutes excessive entanglement, even if it has succeeded

in preventing the fostering of religion.” Jd. at 39a. It

also suggested that even if the supervision were not

“excessive entanglement”, it was insufficient to assure

with certainty that there would be no fostering of reli-

gion by Title I teachers. Jd. Completing the conundrum,

6The opinion below is reproduced in the Solicitor General’s

Appendix. See note 29, infra.

7

the court stated further that to achieve that level of cer-

tainty would create “excessive entanglement”. /d.

There is no evidence in this case of actual or probable

state involvement in religious belief, practice, or govern-

ance, the effect of which would threaten establishment or

preference of religion, or religious liberty. The court’s

finding of “excessive entanglement” on this record is

sheer conjecture which lacks even a trace of identifiable

evidentiary support. Its determination can be explained

solely by the religious nature of the schools involved.

That result cannot be reconciled with the mutuality of

objective of the Establishment Clause and the Free Ex-

ercise Clause. The decision below should be reversed.

ARGUMENT

I

THE ESTABLISHMENT CLAUSE WAS DESIGNED

TO PREVENT THOSE ENTANGLEMENTS BE-

TWEEN CHURCH AND STATE WHICH CLEARLY

AND DIRECTLY INVOLVE RELIGIOUS BELIEF,

PRACTICE OR GOVERNANCE.

The Court’s most recent decisions have contributed

new cogency to Establishment Clause analysis through

an appropriate and essential emphasis on the authentic

purposes of the Establishment Clause, according to

“what history reveals was the contemporaneous under-

standing of its guarantees.” Lynch v. Donnelly, 104 S.

Ct. at 13859. See Mueller v. Allen, 103 S.Ct. at 3069.

In service to the Court, in Mueller v. Allen, supra,

this amicus examined at length the precise generative

and legislative history of the Estabishment Clause as

well as the “primary effect’? component of the three-

part test in light of this history. In School District of

Grand Rapids v. Ball, supra, this amicus has applied

the historical analysis of its Mueller brief, with particu-

lar emphasis on the “secular purpose” criterion as the

analytical vehicle for giving due recognition to govern-

ment’s authority to forge and implement policy for the

public welfare, unimpeded by vague and conjectural con-

8

‘stitutional objections, and suggested an analytical iden-

tity between the “primary effect” and “excessive en-

tanglement” criteria. Here this amicus builds on its

earlier analyses and focuses more particularly on the

meaning of “excessive entanglement” and its analytical

identity with “primary effect”, as but an alternate

means to judge whether state action impermissibly ad-

vances or inhibits religion.

A. A Program Authorized by Congress and Imple-

mented by State and Local Governments Is Not

Unconstitutional Under the Establishment Clause,

Unless It Is Clearly Incompatible With the Clause.

In words especially suited to this case, Chief Justice

John Marshall counselled:

The question whether a law be void for its repug-

nancy to the constitution, is, at all times, a ques-

tion of much delicacy, which ought seldom, if ever,

to be decided in the affirmative in a doubtful case.

The court, when impelled by duty to render such a

judgment, would be unworthy of its station, could

it be unmindful of the solemn obligations which that

station imposes. But it is not on slight implication

and vague conjecture that the legislature is to be

pronounced to have transcended its powers, and its

acts to be considered as void. The opposition between

the constitution and the law should be such that the

judge feels a clear and strong conviction of their

incompatability [sic] with each other.

Fletcher v. Peck, 10 U.S. at 128. The enduring wisdom

of this admonition unites the principles of federalism,

separation of powers, and judicial restraint. It fortifies

the jurisprudential core for the three-part test. It re-

inforces the Court’s renewed insistence that public acts

for the common good shall be upheld save in those rare

cases when government has so clearly and directly

trenched upon the Est blishment Clause that the Court

is obliged by constitutional duty to defeat its legitimate

social objectives.

9

Although Chief Justice Marshall wrote in regard to a

state constitution, this Court long ago approved his cau-

tion and held that acts of Congress should not be in-

validated absent “clear incompatibility” with the Consti-

tution. Legal Tender Cases, 79 U.S. at 530-31. In its

more recent Establishment Clause decisions, the Court

has stressed that a declaration of unconstitutionality

should not be predicated on mere possibilities, but only

when, by realistic measure, the state is directly and sub-

stantially involved in religion. Tilton v. Richardson, 403

U.S. 672, 679 (1971) (plurality). See also Lynch v.

Donnelly, 104 S.Ct. at 1861; School District of Abington

Township v. Schempp, 374 U.S. 203, at 308 (1963)

(Goldberg, J., concurring). “{T]he measure of constitu-

tional adjudication is the ability and willingness to dis-

tinguish between real threat and mere shadow.” Marsh

v. Chambers, supra, quoting, Abington Township v.

Schempp, supra. “It is incumbent, therefore, upon those

who affirm the unconstitutionality of an act of Congress

to show clearly that it is in violation of the provisions of

the Constitution. It is not sufficient for them that they

succeed in raising a doubt.” Legal Tender Cases, 79 U.S.

at 581. See generally Hunt v. McNair, 413 U.S. 734, 736

n.8 (1973).

These principles rest upon important constitutional and

policy grounds. The constitutional authority to resolve

public debates over which actions should be undertaken

to promote the public interest is entrusted primarily to

the legislative branch. McCulloch v. Maryland, 17 U.S. at

421-21, 423. The Congress’ resclution of the public in-

terest should never lightly be set aside, especially when

there is room for legitimate disagreement in setting the

course of public policy. E.g., Vermont Yankee Nuclear

Power Corp v. Natural Resources Defense Council, 435

U.S. at 557-58 (nuclear power development); Heart of

Atlanta Motel v. United States, 479 U.S. at 261-62

(civil rights enforcement). The Congress must decide the

wisdom of a particular approach. Appropriate judicial

10

restraint serves the doctrine of separation of powers, a

vital constitutional value which should be made to yield

only in the clearest case of a supervening constitutional

mandate.

B. The Establishment Clause Reflects the Precise In-

tent and Judgment of the Framers, Based on

History and Experience, That There Should Be

No Governmentally Preferred Church and That

the Government Should Not Become Involved in

Religious Belief, Practice or Governance.

The lamentable European and colonial experience with

the entanglement of church and state, and the resulting

loss of religious liberty, was a dominant influence on the

Framers of the First Amendment. See Engel v. Vitale,

370 U.S. 421, 425-429, 432-33 and n.16 (1962); Torasco

v. Watkins, 367 U.S. 488, 490 (1967).7 The Religion

Clauses were designed to protect religious liberty by

guaranteeing that no religion could gain the special favor

of the government, and by assuring equality and not

mere tolerance of the various religious groups. Equality

also required the state to avoid engagement in the re-

ligious functions of churches, and to that extent be

separated from them.‘

The meaning and precise objectives of the Establish-

ment Clause clearly emerge when its terms are con-

sidered in light of history, in particular the legislative

drafting process. The prohibition of an establishment or

preference of one or more religions by the new federal

government was the precise concern of four of the five

7L. Whipple, Our Ancient Liberties, 66-68 (DeCapo ed. 1972).

Colonial intolerance was compounded by royal action from time

to time as religious fortunes changed in the mother country.

James II, for example, denied freedom of worship and closed or

diverted colonial churches by Royal decree. RB. Long, Genesis of the

Constitution of the United States 106 (1926).

8 Whipple, supra note 7, at 72. See also Report of the Senate

Judiciary Committee, S.Rep. No. 376, 32d Cong., Ist Sess. 1-2

(1853).

11

States which requested such an amendment when they

ratified the Constitution.* That was the precise objective

stated and restated by Madison as sponsor in the House."®

There was no tension or doubt related to these objectives,

but the choice of words to achieve them did engender

certain anxieties born of other concerns.

Reference to “national” religion contained in an earlier

draft of the clause (see infra note 13) evoked fears of an

implication that the new government would be “national”

and not “federal.”’' More important for present pur-

poses was the concern that through the Religion Clauses

the new government might interfere with the autonomy

of the states in religious matters, particularly states

which countenanced preferred religion to one degree or

another.” The Religion Clauses that emerged from this

® During the ratification process some states expressed concern

because the Constitution did not explicitly protect the civil liberties

of the people. New Hampshire, New York, North Carolina, Rhode

Island and Virginia specifically addressed the issue of religious

freedom in their ratifying acts. Four states (New Hampshire

excepted) also addressed the issue of a prohibition against an

established religion, in terms of preferring one religion over others.

I Debates on the Adoption of the Federal Constitution 328 (2d ed.

J. Elliott ed. 1836) (New York), id. 334 (Rhode Island), III id.

659 (Virginia), and IV id. 244 (North Carolina). However, many

including Madison believed that religion was not the province of the

new government and that further clarification was not needed.

III id. 330. The religious diversity of the new country made

preference politically untenable, argued Madison. Id. See generally

1 Annals of Congress 731 (Gales & Seaton eds. 1789).

“© 1 Annals, supra note 9, at 432-34, 730-31.

11Comments during debtes, id. at 731. More than one com-

mentator has noted the importance of the national-state issue to

the development of the Establishment Clause. See Corwin, The

Supreme Court As National School Board, 14 Law and Contemp.

Prebs. 3, 10 (1949); M. Malbin, Religion and Politics-The Inten-

tion of the Authors of the First Amendment, 7 (1978); J. Story,

Commentaries on the Constitution of the United States, 731 (1833).

12 Except for Madison, the most active participants in the House

debate (Gerry, Huntington, and Livermore) came from states

(Connecticut, Massachusetts, and New Hampshire) that maintained

a religious establishment in one form or another.

12

process were a House-Senate compromise.’ The lan-

guage finally selected satisfied the major objectives of the

recommending states 2: noted by Madison, but respected

the other concerns of his peers.

The phrase “respecting an establishment” had two pur-

poses, first to prevent Congress from establishing or

favoring a national religion, and second to prevent Con-

13

HOUSE LANGUAGE

Madison’s Proposal—June 8

The civil rights of none shall be

abridged on account of religious

belief or worship, nor shall any

national religion be established,

nor shall the full and equal

rights of conscience be in any

manner, or on any pretext, in-

fringed.

Select Committee—July 18

No religion shall be established

by law, nor shall the equal rights

of conscience be infringed.

Livermore’s Language—

August 15

Congress shall make no laws

touching religion, or infringing

the rights of conscience.

Ames Language—August 20

Congress shall make no law

establishing religion, or to pre-

vent the free exercise thereof,

or to infringe the rights of con-

science.

Final Text—August 24

Congress shall make no law

establishing religion or prohibit-

ing the free exercise thereof,

nor shall the rights of con-

science be infringed.

SENATE LANGUAGE

September 3

Congress shall make no law

establishing one religious sect

or society in preference to

others, nor shall the rights of

conscience be infringed.

Congress shall not make any

law, infringing the rights of

conscience, or establishing any

Religious Sect or Society.

Congress shall make no law

establishing any particular de-

nomination of religion in pref-

erence to another, or prohibiting

the free exercise thereof, nor

shall the rights of conscience be

infringed.

Congress shall make no law

establishing religion or prohibit-

ing the free exercise thereof.

Final Text—September 9

Congress shall make no law

establishing articles of faith or

a mode of worship or prohibit-

ing the free exercise of religion.

COMPROMISE

Congress shall make no law

respecting an establishment of religion,

or prohibiting the free exercise thereof ....

13

gress from interfering with a state’s policies with regard

to religion."* The phrase “respecting an establishment”

cannot reasonably be read to mean merely concerning or

touching upon religion. Indeed, that was the terminology

of a proposal by Mr. Livermore which was eventually

rejected by the House."* The word “establish” was con-

sistently used to refer to federally preferred religion in

the amendments recommended by the states, by Madison

in the House debates, and in versions of the measure in

both House and Senate.

There is nothing in the records of the First Congress

to indicate that the use of the word “respecting” was

intended to alter the meaning of “an establishment of

religion.” The language of the Clause does not concern

itself with religion in general, but with the particular

problem of an establishment of religion. There was no

concern expressed during the House debates that Con-

gress might enact a law beneficial to religion or religious

institutions. 1 Annals of Congress, 730-31 (Gales &

Seaton eds. 1789).** Had this been the concern, it could

141 Annals, supra note 9, at 730-31; see Corwin, supra note 11,

at 11. “Respecting an establishment” meant more than the act

of preference but a restraint on Congress’ control over practices

and beliefs. I A. Stokes, Church and State in the United States,

539-40 (1950). Simply put, the “national government was not to

play the part of a theologian.” W. Dunn, What Happened to

Religious Education? 47 (1958). As noted Congress was prohibited

from passing laws affecting state establishments. Malbin, supra

note 11, at 16.

15 Note 13, supra. Although Livermore’s proposal passed on

August 15, 1789 without any recorded debate, it was not the lan-

guage eventually adopted by the House. 1 Annals, supra note 9,

at 731, 765, 778.

16 As much as the Framers were “utterly opposed to any con-

straint upon the rights of conscience,” they “had no fear or

jealousy of religion itself, nor did they wish to see us an irreligious

people ... [T]hey did not intend to spread over all the public

authorities and the whole public action of the nation the dead and

revolting spectacle of atheistical apathy.” S. Rep. No. 376, supra

14

have been dealt with simply by providing that “Congress

shall make no law respecting religion”, withove intro-

ducing the more limited concept of “an establishment of

religion.” *’

As noted, the drafting process reflected the Framers’

experience with the historical realities of church-state

entanglement. About half a century later, the Senate

Judiciary Committee also reflected that experience when

it rejected a citizens’ petition urging that provisions for

legislative and military chaplains should be abolished as

an “establishment of religion”. In its Report in 1853, the

Committee explained that “establishment of religion . . .

referred, without doubt, to that establishment which

existed in the mother country.” S. Rep. No. 376, 32d

Cong., Ist Sess. 1 (1853). It meant:

The connexion [sic] with the state of a particular

religious society, by its endowment, at the public

expense, in exclusion of, or in preference to, any

other, by giving to its members exclusive political

rights, and by compelling the attendance of those

who rejected its communion upon its worship, or

religious observances.

Id. This description provides a strong summary and

important interpretation of the historical church-state

involvement which led to the Establishment Clause. This

description strikingly parallels that found in recent deci-

note 8, at 4. See Zorach v. Clausen, 343 U.S. 306, 312 (1952).

Similarly, in Marsh v. Chambers, this Court reviewed actions of

the First Congress which were beneficial to religion. U.S. ,

103 S.Ct. 3330, 3333 (Chaplains), 3334 n.9 (Thanksgiving Holi-

day) (1983). See also Northwest Ordinance, Art. IlI, Ch. VIII,

1789 Stat. 50, 53; C. Antieau, A. Downey, E. Roberts, Freedom

From Federal Establishment, 126 (1963).

17 It has been observed that if the authors of the Establishment

Clause intended only the objective of prohibiting preferred or

established religion, they could have simply so provided rather

than choose the language they did. Lemon, 403 U.S. at 612. How-

ever, as demonstrated, such terminology was rejected by the First

Congress for the reasons discussed in text, supra.

15

sions such as Lynch v. Donnelly, 104 S.Ct. at 1366

(O’Connor, J., concurring) and Larkin v. Grendel’s Den,

459 U.S. 116, 126-27 (1982).

C. “Excessive Entanglement” Must Draw Its Meaning

From History and Experience. It Exists When

Government Is Involved in Religious Belief, Prac-

tice, or Governance. When It Is Not So Rooted,

It Can Lead To The Invalidation of Government

Programs Which Do Not Threaten Authentic Con-

stitutional Values.

Because of the numerous mutual interests and result-

ant contacts between churches and the state,’* hermetic

separation has never been and could never be required by

the Court. Roemer v. Board of Public Works, 426 U.S.

at 745-46; Abington Township v. Schempp, 374 U.S. at

294-296 (Brennan, J., concurring). As this Court said

in Lynch v. Donnelly, “(t]he concept of a ‘wall’ of separa-

tion is a useful figure of speech ... [b]ut the metaphor

itself is not a wholly accurate description of the practical

aspects of the relationship that in fact exists between

church and state.” 104 S.Ct. at 1359. In measuring con-

formity to the mandate of the Establishment Clause, this

Court has required a determination whether challenged

action results in “excessive government entanglement

with religion.” Walz v. Tax Commission of New York,

397 U.S. 664, 674 (1970). The test, the Court said, is

“inescapably one of degree”. Jd. However, accommoda-

tion of activities of churches, especially in education, has

been a reality since colonial times without serious threat

18 Church and state share common interests in education, hos-

pitals, child welfare, matrimony, public welfare and other areas

too numerous to mention. Wherever church and state share an

interest, involvement of one with the other is likely to follow.

When churches engage in activities affecting the common good of

the community, some state oversight to promote and protect the

public interest is expected and, where reasonable, valid. But

clearly churches exist to advance religious practices and beliefs;

in thse matters the state rarely, if ever, has a valid interest. Sce

Lynch V. Donnelly, 104 §.Ct. at 1866 (O’Connor, J., concurring).

16

of “excessive entanglement” in an authentic constitu-

tional sense.

Churches provided the vast bulk of education through

the first quarter of the Nineteenth Century. Abington

Township v. Schempp, 374 U.S. at 238, n.7 (Brennan, J.,

concurring).'® Even when public secular schools began

to flourish, most of the education was still performed by

clergy. Id., citing, A. de’Tocqueville, Democracy in Amer-

ica 309, n.4 (1881).*° The evolution of secular education

in the Nineteenth Century did not occur because of the

Establishment Clause or similar considerations.** As pub-

lic schools began tv share the educational burden with

church schools, there remained, and still remain, many

state involvements with church-related education without

any violation of the First Amendment. Board of Educa-

tion v. Allen, 392 U.S. 236, 245-46 (1968).

The state has an indisputable interest in education.

Brown v. Board of Education, 347 U.S. 488, 493 (1954) ;

see Wisconsin v. Yoder, 406 U.S. 205, 213-14 (1972). It

appropriately assures itself that all schools, including

19 In New England, where church-state connections were strong-

est, town churches operated the schools. In the more religiously

diversified middle atlantic colonies, the various sects each ran

their own schools. In the agrarian south, the wealthy were tutored

at home; the less fortunate were educated at Anglican charity

schools. W. Bower, Church and State in Education, 23-24 (1944).

See W. Dunn, supra note 14, 14-17.

20 The funds for these schools came from taxes, sales of public

lands, private donations, and tuition. R. McCarthy, et. al., Dis-

establishment a Second Time, 53-54 (1982). See Dunn, supra

note 14, at 68-69 (discussing e.g., New York).

21 It was generated by political and cultural conditions: the rapid

expansion of the country and its population, the increased ethnic

and religious diversity, the enhanced civic education needs of a

growing country, and secularization of the culture. Bower, supra

note 19, at 25-28. Bower notes that the most significant factor was

the increasing sectarianism in education which led to its displace-

ment by state systems.

17

church-affiliated schools, adequately serve the public in-

terest in education. In Pierce v. Society of Sisters, this

Court recognized the states’ authority:

reasonably to regulate all schools, to inspect, super-

vise, and examine them, their teachers and pupils; to

require that all children of proper age attend some

school, that teachers shall be of good moral charac-

ter and patriotic disposition, that certain studies

plainly essential to good citizenship must be taught,

and that nothing be taught which is manifestly

inimical to the public welfare.

268 U.S. 510, 534 (1925) [emphasis added]. See Meyer

v. Nebraska, 262 U.S. 390 (1923). On the other hand,

the state may not involve itself to such an extent that its

action infringes fundamental constitutional rights, such

as the parental prerogative in choosing a particular

school, or religious practice or belief. Pierce v. Society of

Sisters, supra; Wisconsin v. Yoder, supra.

The ultimate problem at which “excessive entangle-

ment” is addressed is the nature of “the resulting rela-

tionship between the government and the religious au-

thority.” Lemon, 403 U.S. at 615 [emphasis added].

When a state aids church-affiliated schools, this Court

has said that the mechanism to assure that the aid will

not be diverted to promote a particular religious belief

is a “relationship pregnant with involvement.” Walz,

397 U.S. at 675. It could result in “sustained and de-

tailed administrative relationships” having the effect of

involving the state in matters of religious belief, practice,

or governance. Id.; see Lemon, 403 U.S. at 621; Meek v.

Pittenger, 421 U.S. 349, 369-70 (1975). On the other

hand, churches “need not be quarantined from public

benefits that are neutrally available to all.” Roemer v.

Board of Public Works, 426 U.S. at 746. In Wolman v.

Walter, Justice Powell noted that the Court had never

invalidated a program merely because it had a beneficial

effect on religious-affiliated education, when “the aid is

wholly secular in character and is supplied to the pupils

ct

18

rather than the institutions.” 433 U.S. 229, 262 (1977) ;

see id. at 247, n.14.% State administration of a neutral

secular program would not threaten “state inspection and

evaluation of the religious content of a religious organiza-

tion . . . fraught with the sort of entanglement that the

Constitution forbids.” Lemon, 403 U.S. at 620. See

Mueller v. Allen, 103 S.Ct. at 3070, n.10; Meek v. Pit-

tenger, 421 U.S. at 368, n.17. See note 22 infra.

The requirement of impermissible religious involvement

suggests analogy to the cases which deal with the adjudica-

tion of church-related disputes. This Court has insisted

that the First Amendment places ecclesiastical matters

beyond the civil courts. E.g., Kedroff v. St. Nicholas

Cathedral, 344 U.S. 94 (1952). Civil authority may not

decide religious doctrine, even in resolving what would

otherwise be a secular dispute. Serbian Eastern Orthodox

Church v. Milivojevich, 426 U.S. 696, 703 (1976) ; Mary-

land & Virginia Churches v. Sharpsburg Church, 396

U.S. 367, 369 (1970) (Brennan, J., concurring). There

is the “danger that the state will become entangled in

essentially religious controversies in violation of the First

Amendment.” Serbian Church, supra [emphasis added].

Thus, this Court has approved a neutral legal principles

approach to “free civil courts completely from entangle-

| ment in questions of religious doctrine, polity, and prac-

tice.” Jones v. Wolf, 443 U.S. 595, 603 (1979) [emphasis

added]. This rationale for judicial abstention provides a

useful basis for a consistent adjudication of cases which

22 For this reason Wolman v. Walter, 433 U.S. 229 (1977) is seen

as a turning away from some of the strict implications of Meek v

Pittenger, 421 U.S. 349 (1975). Young, Constitutional Validity cf

State Aid *o Pupils in Church-Related Schools—Internal Tension

Between the Establishment and Free Exercise Clauses, 38 Ohio

St. LJ. 783, 789 (1977). Similarly, equal opportunity for aid

that is secular in character and available to all children does not

raise the same sort of constitutional issue as would aid expressly

limited to religious schools or students. Americans United v.

Blanton, 433 F. Supp. 97 (M.D. Tenn.) (three judge court), aff'd

mem. 434 U.S. 803 (1977).

19

deal with legislative and executive involvements in the

educational and other activities of churches and other

religious organizations.

The tendency toward control of religion is the key to

identifying those entanglements at which Madison and

others directed ihe Religion Clauses. They include gov-

ernment involvement, even at the threshold, with estab-

lished or preferred religion which itself could threaten

religious liberty. See Lynch v. Donnelly, 104 S.Ct. at

1366 (O’Connor, J., concurring). Properly applied, the

“excessive entanglement” criterion can serve legitimate

Establishment Clause values. Its aim should be the kinds

of involvements which history and experience teach can

lead to retrenchment of religious liberty. It should not

be the gratuitous foes of educational programs which are

untainted in fact by constitutional excess. Where church-

state interaction or cooperation does not concretely pre-

sent the tlireat that the state may promote or control

religious belief, practice or governance, it cannot be

deemed “excessive entanglement” in a proper constitu-

tional sense. See Walz, 397 U.S. at 669. For such in-

volvements to exceed constitutional bounds, this amicus

suggests there must be

(a) actual government assertion of authority,

(b) over religious activity,

(ce) which actually tends to establish or prefer re-

ligion, or adversely affect religious liberty.

A lesser or ambiguous standard, especially where church

and state together serve important public interests, leads

to the invalidation of programs which serve a legitimate

public interest, despite the absence of proven excursions

beyond authentic constitutional bounds.**

23 Examples of such instances include portions of Meek v.

Pittenger, 421 U.S. at 365 (loan of maps, charts, and laboratory

equipment) and Wolman v. Walter, 433 U.S. at 253-54 (field trips).

20

D. The Establishment Clause Was Intended to But-

tress the Free Exercise Clause. Applications Which

Burden Religious Liberty Are Necessarily Erro-

neous.

As part of the Bill of Rights, the Establishment Clause

was intended to safeguard individual liberty.** The same

is true under the Fourteenth Amendment which applies

the Establishment Clause to the states. See Everson v.

Board of Education, 330 U.S. 1, 15-16 (1947). As noted

above, it reflects the experience of its Framers that

officially preferred or established religion generates re-

ligious intolerance and infringes upon personal liberty.

S. Rep. 376 (1853), supra, at 4; Abington Township v.

Schempp, 374 U.S. at 208, 221-22; Engel v. Vitale, 370

U.S. at 429, 430-32; Torasco v. Watkins, supra. That

Clause was not meant to drive a wedge between church

and state, but-rather to avoid those relationships between

the two which pose a realistic threat of impairing re-

ligious freedom. See, e.g., Lynch v. Donnelly, 104 S.Ct. at

1364.

The invalidation of governmental educational programs

which do not tend toward an established or preferred

religion can itself effectively burden religious freedom in

violation of the Free Exercise Clause. See Sherbert v.

Verner, 374 U.S. 398, 404 (1963) ; cf. Speiser v. Randall,

357 U.S. 513, 518 (1958) (denial of tax exemption for

engaging in certain speech penalizes free speech). The

government may not constitutionally condition the avail-

ability of a benefit on whether the potential recipient

makes or refrains from making a particular religious

choice. McDaniel v. Paty, 435 U.S. 618, 626, 633 (1978)

24In Wisconsin v. Yoder, this Court stated “the Religion Clauses

had specifically and firmly fixed the right to free exercise of religious

beliefs, and buttressing this fundamental right was an equally

firm, even if less explicit, prohibition against the establishment of

any religion by government.” 406 U.S. 205, 214 (1972). Stokes

suggests that the Establishment Clause is the more important of

the Religion Clauses for the protection of personal liberty. I

Stokes, supra note 14, at 539.

21

(plurality) ; Sherbert v. Verner, 374 U.S. at 406. Cf.

Speiser v. Randall, supra. When the Establishment

Clause is made to burden religious liberty in that fashion,

despite the absence of a concrete threat to authentic

Establishment Clause values, the effect is an unconstitu-

tional burden on Free Exercise. McDaniel v. Paty, supra.

Under the First Amendment, government may not un-

duly influence or inhibit parents’ freedom to choose be-

tween private and public schools. Abington Township v.

Schempp, 374 U.S., at 242. (Brennan, J., concurring).

When there is no clear incompatibility between the Estab-

lishment Clause and en educational program available to

all, invalidation under the Clause impermissibly burdens

parents’ freedom to choose a religious school for their

children by denying them the general public benefit.

Meek v. Pittenger, 421 U.S. at 386-387 (Burger, C.J.,

dissenting). A declaration of unconstitutionality in those

circumstances can be a disability on church-affiliated edu-

cation solely because of the religious nature of the school.

Such a result is fundamentally inconsistent with the

First Amendment.

Both components of the Religion Clauses were meant to

work to the same end. If the Establishment component is

applied to reach results which cannot be justified in terms

of religious liberty, it fails in fidelity to the intended

constitutional purpose. This is certainly the case when

it is used to invalidate governmental accommodation of

activities conducted by religious institutions which serve

the public interest and which pose no actual threat to

religious freedom.

22

II

THE THREE-PART TEST SUGGESTS A TWO-PART

PURPOSE AND-EFFECT ANALYSIS. “EXCESSIVE

ENTANGLEMENT” PROVIDES A MEANS TO DIS-

CERN WHETHER A PARTICULAR ACTION HAS

A PRIMARY EFFECT THAT ADVANCES OR IN-

HIBITS RELIGION.

In its brief in School District of Grand Rapids, this

amicus discussed (at 4, 16-25) the practical function of

the three-part test as a two-part purpose-and-effect analy-

sis. The general principle of the cases is that legisla-

tive action does not violate the Establishment Clause if

its “primary effect” neither advances nor inhibits re-

ligion. Committee for Public Education, Etc. v. Regan,

444 U.S. 646, 653 (1980). The proper job of the “pri-

mary effect” component in Establishment Clauses analy-

sis is to identify those governmental actions which pose

a realistic threat of an establishment of religion, with

a consequent burden on religious liberty. So too, as dis-

cussed above, for “excessive entanglement” to be a useful

and principled analytical device there must be actual in-

volvement by the government in religious affairs which

tends actually (1) to establish or prefer a religion, or

(2) otherwise to burden the free exercise of religion.

These objectives themselves do not suggest a separate

substantive criterion, but one which is subsumed under an

“effects” analysis that entails more than one avenue of

review.

Until 1970, this Court addressed Establishment Clause

issues only in terms of purpose and effect. E.g., Abington

Township v. Schempp, 374 U.S. at 222. In Walz, this

Court identified entanglement as a means of assuring

that “the end result—-the effect—is not an excessive gov-

ernment entanglement with religion.” 397 U.S. at 674

[emphasis added]. Later, when a plurality examined the

meaning of entanglement in Roemer v. Board of Public

Works, it did so by examining virtually the same factors

as for “primary effect”. 426 U.S. at 755-63. It was

stated that the difference between “excessive entangle-

23

ment” and “primary effect” lies in the fact that the

former is essentially a procedural issue and the latter a

substantive one. Jd. at 755. Because both appear, how-

ever, to be opposite sides of the same “effects” coin, in

his concurring opinion Justice White questioned whether

“excessive entanglement” was a criterion truly distinct

from “primary effect”. Jd. at 769. For all the reasons

put forth earlier, this amicus respectfully suggests that

important analytical difficulties in Establishment Clause

cases would be mitigated by an acceptance of Justice

White’s insight.

Under the Establishment Clause, “[n]eutrality is what

is required.” Jd. at 747. Under the “primary effect”

component, courts examine whether the principal result

of state action either advances or inhibits religion.

Mueller v. Allen, 103 S.Ct. at 3066, 3067. The govern-

ment’s efforts to support actions undertaken by churches

that advance the public interest “may not lead it into

such an intimate relationship with religious authority

that it appears either to be sponsoring or excessively

interfering with that authority.” Roemer, 426 U.S. at

747-48 [emphasis added]. The “sponsoring” element (ad-

vancement) raises the prospect of establishment in an

authentic constitutional sense. See Argument I, B, supra.

The “excessively interfering” aspect (inhibition) raises

both establishment and free exercise concerns depend-

ing upon the nature of state action. See Arguments I, C

and I, D supra. Although the underscored language

quoted above from Roemer describes the “effect” of state

action, the presence of “excessive entanglement” in the

analysis is unmistakable.

Some discussions of the “excessive entanglement” cri-

terion do not make clear its relationship to “primary

effect”, i.e. to the requirement that it is the threat of

government’s impermissible involvement in religion that

stigmatizes “comprehensive, discriminating, and continu-

ing state surveillance”. Lemon, 403 U.S. at 619. Terms

like “surveillance” lack constitutional significance unless,

as in Roemer, the focus is upon conduct which clearly

24

trenches upon authentic Establishment Clause values.

Further refinement of the substantive function of “ex-

cessive entanglement” in relation to “primary effect”

would provide clearer guidance not only for the courts,

but for those who must make legislative and administra-

tive judgments.”

This amicus respectfully suggests that “excessive en-

tanglement” should be understood precisely as another

measure of whether state action has the primary effect

of unconstitutionally advancing or inhibiting religion.

“Excessive entanglement” and “primary effect” are al-

ternative means of identifying the same problems, 7.e.

state action which tends to establish religion or burden

religious liberty.

Ill

THE DECISION BELOW DOES NOT ACCORD

WITH THE DECISIONS OF THIS COURT, ESPE-

CIALLY THOSE WHICH STRESS FIDELITY TO

CONSTITUTIONAL VALUES AS ILLUMINATED

BY HISTORY. THE “EXCESSIVE ENTANGLE-

MENT” CRITERION WAS MISUNDERSTOOD AND

MISAPPLIED.

The Court of Appeals invalidated the Title I program

in New York City because it decided, erroneously, that the

program excessively entangled church and state. Felton

v. Bell, 739 F.2d 48 (1984), at S.G. App. 37a-38a and

53a.*%* The decision was a product of both an unduly

25 It has been noted that the seemingly anomolous results under

the three-part test create a practical dilemma for those who must

shape and administer public policy. See Wilson, The School Aid

Decisions: A Chronicle of Dashed Expectations, 3 J. Law & Educ.

101 (1974). What is a reviewable misunderstanding of constitu-

tional principle in the judicial process can operate as an unwar-

ranted restraint upon legislative and executive judgment, with

protracted social effects.

26 The reference “S.G. App.” refers to the Appendix to the juris-

dictional statement of the Solicitor General in No. 84-238, con-

solidated with Nos. 84-237 and 84-239. Appendix A is the decision

below; Appendix C is the decision of a three judge court approv-

ing the program in 1980.

on Pe ee

—

ee —_

25

narrow view of this Court’s rulings in Meek v. Pittenger,

supra, Wolman v. Walter, supra, and two less germane

cases,’ and a failure to adjudicate the issues by a princi-

pled application of this Court’s more recent decisions.**

The court thought it was not “to make an independent

interpretation of the constitutional text or to engage in

creative distinctions but to do its best to follow what the

[Supreme] Court has said.” S.G. App. 15a. It thought its

“task [was] to analyze the precedents and apply them as

best we can: The responsibility for modifying or. over-

ruling them, if that is to be done, rests elsewhere.” S.G.

App. 43a, n.25. This amicus respectfully submits that

due regard for the decisions of this Court would have

led to a contrary result in the court below.

The Title I program is based on Congress’ finding that

there is “a close relationship between conditions of pov-

erty and lack of educational development and poor aca-

demic performance.” §S. Rep. No. 146, 89th Cong., 1st

Sess. (1965), reprinted in [1965] U.S. Code Cong. &

Admin. News 1446, 1450. By authorizing grants for

remedial and supplementary education, Congress intended

to help children who live in areas where there is a high

concentration of poor and whose educational aptitude is

below average for their age. 20 U.S.C. §§ 2722, 2732-34.

Under Title I, school districts are required to provide

publicly sponsored instruction on an equal basis to eligible

children in both public and private schools. [1965] U.S.

Code Cong., supra, at 1456, 1457. Congress contemplated

that in some instances public school teachers would even

provide special educational services (defined as “thera-

27 Wheeler v. Barrera did not reach the First amendment issue.

417 U.S. 402, 426 (1974). Public Funds for Public Schools v.

Marburger is distinguishable on several grounds, including the

fact that assistance was provided directly to non-public schools, not

directly to the children. 358 F. Supp. 29 (D.N.J. 1973) (three judge

court), aff'd mem., 417 U.S. 961 (1974).

28 F.g., Lynch v. Donnelly, supra, Mueller v. Allen, supra, and

Marsh v. Chambers, supra.

26

peutic, remedial, or welfare services”) outside of public

school facilities. Jd. [emphasis added]. Because particu-

lar needs vary across the country, Congress also provided

that each local school district should design a program

that would best remedy its specific problem. Jd. at 1454.

New York City designed its program to meet its par-

ticular needs for remedial and supplementary instruction.

S.G. App. 10a-lla, and n.5. After experimenting with

off-premises and after-hours programs, the City deter-

mined that on-premises instruction was necessary to

maximize educational benefits and minimize costs. Jd. at

7a-8a. The effectiveness of this approach was borne out

by a study, conducted in the 1977-78 school year, which

demonstrated (among other things) that if the format

were reversed and instruction were provided in public

schools, over 40% of the program budget would be

expended on transportation and other non-instructional

items. S.G. App. 8a-9a; S.G. App. C 72a. In order to

fund an off-premises program, it would have been neces-

sary to cut 36% of the private school children enrolled in

the program. Jd. at 73a.

All Title I program teachers are employed by the New

York City Board of Education, and they are under its

exclusive control. Jd. at 74a.*° Each teacher reports to a

field supervisor who, in turn, reports to a field co-

ordinator. A supervisor or coordinator, or both, attempt

at least one on-premises visit per month to evaluate a

teacher’s professional performance; to discuss any prob-

lems, complaints or concerns that might have been raised

by the teacher, the City or the schools; and to monitor

compliance with program guidelines. Supervision also

occurs in monthly in-service sessions when private schools

are closed for a holiday. S.G. App. 12a-13a. Supervisors

29 On-premises instruction in private s<nools occurs in classrooms

specifically reserved by the private schools for the purpose. S.G.

App. 13a. The classrooms are designated by signs as Title I class-

rooms and have been purged of all religious symbels. S.G. App. C

74a.

er ee

27

are not involved in the affairs of the private school.

They do have contacts of a routine, administrative nature,

including the review of Title I guidelines with private

school administrators prior to the school year. Jd. at 13a-

14a. Title I “creates the unusual situation in which an

educational program may operate within the private

school structure but be totally removed from the ad-

ministrative control and responsibility of the private

school.” U.S. Office of Education Program Guide No. 44

(1968), quoted below, S.G. App. 14a.

The court below annulled Congress’ judgments and the

City’s carefully considered implementation of Title I, and

dismantled a remedial educational program which the

court conceded “has done so much good and little, if any,

detectable harm.” S.G. App. 52a. It did so because it

perceived “excessive entanglement” in one minor aspect

of the program whereby public school supervisors re-

view the classroom work of Title I teachers. /d. at 35a-

36a, 38a-39a. That supervision, among other things, is

for the professional evaluation and development of the

teacher. Because it also serves to assure that Title I

courses are not used to advance religious views of the

host school, the court said “this very surveillance consti-

tutes excessive entanglement, even if it has succeeded in

preventing the fostering of religion.” /d. at 39a. It also

suggested that even if the supervision were not “exces-

sive entanglement,” it was insufficient to assure with

certainty that there would be no fostering of religion by

Title I teachers. Jd. Completing the conundrum, the

court also held that te achieve that level of certainty

would create “excessive entanglement.” Jd.

There is no evidence in this case of actual or probable

state involvement in religious belief, practice, or gov-

ernance, the effect of which would threaten establishment

or preference of religion, or religious liberty. Chief

Justice Burger’s remarks in Meek seem particularly apt

here:

28

there is absolutely no support in this record or for

that matter, in ordinary human experience for the

concern some see with respect to the “dangers” lurk-

ing in extending common, non-sectarian tools of the

educational process—especially remedial tools—to

students in private schools.

421 U.S. at 385 (dissenting opinion). The court’s finding

of “excessive entanglement” on this record is sheer con-

jecture which lacks even a trace of identifiable evidenti-

ary support.

The Title I program does not begin to approach the

threshold of unconstitutional entanglement. It neither

advances nor inhibits religion, nor does it threaten to do

so in any way. The Constitution demands more than a

groundless fear that publicly employed professionals may

be “captured” by the “sectarian environment.” S.G. App.

3la n.13, 36a n.15.% It requires proof of action which

threatens authentic constitutional values, not an im-

possible contra-burden of proof that there will never be a

problem. Compare Legal Tender Cases, 79 U.S. at 531

and Hunt v. McNair, supra, with 8.G. App. 38a. The de

cision below is a product of “vague conjecture” (Fletcher

v. Peck, 10 U.S. at 128) which fails to make the manda-

tory distinction between “real threat and mere shadow”

(Marsh v. Chambers, 103 S.Ct. at 3337).

On this record, the invalidation of the Title I program

is explained solely by the religious nature of the schools

involved. That result cannot be reconciled with the

3° Although there is scme discussion in both Roemer, 426 U.S.

at 754, and Wolman, 433 U.S. at 247, about actions of public em-

ployees in a sectarian environment, such a conclusion is, first,

difficult to justify on the record here and, second, impossible to

reconcile with the constitutional requirement of clear incompati-

bility. The analysis that this amicus suggests is more in line with

this Court’s conclusion in Committee for Public Education, Ete. v.

Regan, that it would not surmise the inevitability of bad faith

leading to future excesive entanglement where the plan under re-

view disclosed none. 444 U.S. 646, 660-61 (1980).

eee. —~

29

mutuality of objectives of the Establishment Clause and

the Free Exercise Clause.

CONCLUSION

The judgment of the court of appeals should be re-

versed.

Respectfully submitted,

WILFRED R. CARON

General Counsel

U.S. CATHOLIC CONFERENCE

1312 Massachusetts Ave., N.W.

Washington, D.C. 20005

(202) 659-6690

MARK E. CHOPKO

Assistant General Counsel

Of Counsel