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

——

orion FILED

gct 4 W 7004 | |

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

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

SECRETARY, UNITED STATES DEPARTMENT OF EDUCATION,

and THE CHANCELLOR OF THE BOARD OF EDUCATION OF THE

City Or New York,

Appellants,

and YOLANDA AGUILAR, and LILLIAN COCON, MIRIAM MARTINEZ

and BELINDA WILLIAMS,

Appellants-Intervenors,

VS.

Betty Louise FELTON, CHARLOTTE GREEN, BARBARA HRUSKA,

MEeERYL A. SCHWARTZ, ROBERT H. Sipe and ALLEN H. ZELLON,

Appellees.

On appeal from the United States Court of Appeals

for the Second Circuit

MOTION FOR LEAVE TO FILE A BRIEF AS

AMICUS CURIAE AND BRIEF OF PARENTS

RIGHTS, INC., AMICUS CURIAE

IN SUPPORT OF THE APPELLANTS

JOHN J. DONNELLY

317 N. 11th Street, Suite 714

St. Louis, Missouri 63101

(314) 241-4041

Attorney for Parents Rights, Inc.

Amicus Curiae

St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477

TABLE OF CONTENTS

Table of Authorities ...........ccccccccccccccecees

Parents Rights, Inc. Motion For Leave To File A Brief

As Ammicus Curite ..... ccc ccc ccccccccccvecess

Interest of the Amicus Curiae..........--.0ee eee eeee

Summary of the Argument .........-----++eeeeeeees

AFguMent ......... eee cece cece eee e eee e cece eeerees

I. The involvement of government with religion in the

application of Title 1 of the Elementary and Secondary

Education Act of 1965 (20 U.S.C. §2701 ef seq.) by the

New York City Board of Education does not result in

excessive entanglement between government and

religion in view of its features and circumstances.......

A. Only ‘‘excessive entanglement’’—not all contact

and relationship between government and religion—is

forbidden by the Religion Clauses of the First Amend-

B. Excessive political entanglement between govern-

ment and religion is not endangered by the New York

application of Title ] .... 2... 6-2 cess cere e ree eeees

1. The involvement of government and religion in

the New York application of Title I does not incur

a serious risk of an impermissible fostering of

religion .... 2... cece cece cece ee eeeeeeeeeee

2. The supervision or surveillance maintained and

required over public school personnel providing

remedial instruction and services in church-related

schools in the application of Title I in New York

does not result in excessive entanglement of

government with religion ......--.+-+++ee+++se:

II. The right of parents to direct the education of their

children allows and requires considerable contacts and

involvement between government and church-related

A. Parents have a right to direct the education of their

children, including use of church-related schools of their

1. Parents have a constitutional right to direct the

education of their children in schools of their

GREED oc vn ccvccecckcesecescecenne

2. The right of parents to educate their children in

schools of their choice includes the right to have

them educated in church-related schools that in-

culcate religion along with secular subjects .......

3. The natural and constitutional right of parents

to direct the education of their children is further

supported by the First Amendment rights of free

exercise of religion and freedom of communication

eee

a) The right is supported by the right of free

Tf

b) The right of parents to educate their

children in church-related schools is further

supported by the freedom of communication

and information required by the First Amend-

4. The constitutional right of parents to direct the

education of their children and have it include

religion along with secular subjects is accompanied

by aright of their children to receive this education

B. The constitutional rights of parents and their children

regarding education require allowance of considerable

15

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15

17

18

18

19

21

contacts and involvement between government and

church-related schools, especially when participation in

general educational benefits is legislated by Congress .. .

1. Congress has legislated, with this Court’s ap-

proval, that children in nongovernmental schools,

including church-related schools, should share

comparably with public school children in the

educational benefits of the federal Elementary and

Secondary Education Act...........ccscceccees

2. Denial of the constitutionality of the New York

Application of Title I of the E.S.E.A., in the

absence of a substantial and compelling reason for

such denial, would unjustly penalize the constitu-

tional rights of parents and children who use

ES Peer errr eT eTeee

a) It is unlawfu! to penalize the exercise of a

constitutional right in the absence of a com-

pelling governmental reason ...............

b) Denial of the comparable educational ser-

vices provided by the New York application

of Title I for children in church-related

schools would penalize the exercise of the

constitutional rights of parents and children. .

c) There is no compelling and substantial

government interest demanding denial of par-

ticipation in the New York application of Ti-

tle | to private school parents and their

Nee ees pease scveccscess

3. The rights of parents who send their children to

church-related schools allow and require a con-

siderable degree of contact and involvement bet-

ween government and church-related schools .....

a= {9 «=

III. The advanced degree of socialization of elementary

and secondary education in the United States requires

allowance of considerable contacts and involvement bet-

ween government and church-related schools .........

A. Socialization, or application of the principle

‘‘From each according to his means, to each according

to his needs,’’ requires allowance of considerable con-

tacts between government and voluntary private institu-

tions, if the latter and the personal freedoms they repre-

CUR GU TIGIITIID . 6 o 6 600 00 0:680606 6566 eeseeseonsens

B. Socialization of elementary and secondary educa-

tion in the United States has proceeded to the extent that

it dominates this field and constitutes the leading exam-

ple of a general trend to socialization ................

C. The high degree of socialization of elementary and

secondary education in the United S*.xes, as well as that

of general socialization requires considerable contact

and cooperation between government and private, in-

cluding church-related schools and their students, to

PTOSC! PSTSOMA FIGMAS .. wc ccc cccncscccccsccces

26

26

27

29

TABLE OF AUTHORITIES

Cases:

Abington Township School District v. Schempp, 374

Oe ee ere 19

Board of Education v. Barnette, 319 U.S. 624 (1942) ... 20

Cantwell v. Connecticut, 310 U.S. 296 (1940) ......... 19

Earley v. DiCenso, joined with Lemon v. Kurtzman,

i I ET PET eer Tee 3,7, 10, 12

Epperson v. Arkansas, 397 U.S. 97 (1968) ............ 19

Everson v. Board of Education, 330 U.S. 1 (1947) ..... 15

Felton v. Secretary, United States Department of

Education, 739 F.2d 48 (1984) ................. 7, 11, 22

Griswold v. Connecticut, 381 U.S. 479 (1965) ....15, 16, 17, 20

Keyishian v. Board of Regents, 385 U.S. 589 (1967) .... 20

Lemon v. Kurtzman, 403 U.S. 602 (1973) ............. passim

Lynch v. Donnelly, 104S.Ct. 1355 (1984). ............ 6, 8

Marsh v. Chambers, 103 S.Ct. 3330 (1983).......... Ny 9

Meek v. Pittenger, 95 S.Ct. 1753 (1975) .............. > fe

Meyer v. Nebraska, 262 U.S. 390 (1923) ............ 15, 16, 17

Mueller v. Allen, 103 S.Ct. 3062 (1983)............... 7

Minersville v. Gobitis, 310 U.S. 586(1940)............ 15

National Coalition for Public Education v. Harris, 489

F.Supp. 1248 (S.D.N.Y., 1980); appeal dismissed

for want of jurisdiction: untimely filed, sub. nom.

National Coalition for Public Education v.

Hufstedtler, 449 U.S. 808 (1980) ............ 9,10, 11, 12

— Yi =x

Nebraska State Board of Education v. Hartington, |

N.W.2d 161; cert. denied 409 U.S. 921 (1972)..... 23

Pierce v. Society of Sisters, 268 U.S. 510 (1925) .. .15, 16, 17, 18

Prince v. Massachusetts, 321 U.S. 158 (1944).......... 15, 18

Roemer v. Board of Public Works, 426 U.S. 736 (1976) . 6

School District of Abington Township v. Schempp, 374

U.S. 203 (1963) See above (Abington...)........ 19

Shapiro v. Thompson, 394 U.S. 618 (1969) ........... 24

Sherbert v. Verner, 374 U.S. 398 (1963) ipaadnde secs ae 23

Speiser v. Randall, 357 U.S. 513 (1958) bab enaeéeansnnes 23

Thomas v. Collins, 323 U.S. 516 (1944) .............. 23

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

Torcaso v. Watkins, 367 U.S. 488 (1961) ............. 23

Walz v. Tax Commission, 397 U.S. 664 (1970)..... 3,4, 5,9, 14

Wheeler v. Barrera, 417 U.S. 402 (1974) ........... 8, 9, 22, 23

Wisconsin v. Yoder, 406 U.S. 205 (1972)............ 15, 17, 18

Zorach v. Clauson, 343 U.S. 306 (1952) .............. 5

Constitution, Statutes and Regulations:

a GE ee eteceddenvesoees 3, 5, 7, 19, 20, 24

FE THEE hc cvccnccccvesctecenesenes 19, 24

U.S. Code: 20 U.S.C. §2701 et seg. (1982) ............ 21

20 U.S.C. §3801 et seq. (1982) ............ 21

— vii —

Education Consolidation and Improvement Act of

1981, 20 U.S.C. §3801 et seg. (1982).............

Elementary and Secondary Education Act of 1965 as

amended, 20 U.S.C. §2701 er seq. (1982).........

34 C.F.R. §200.70 ef seg. (1983)................000ee

ee oe Vie ced bedsasancedecuar

Articles and Books:

Brickman, Historical Background...1 Educational

Freedom, ed. McGarry and Ward (1966).........

Choper, The Religion Clauses of the First Amendment,

41 University of Pittsburgh Law Review, 673

EE eee abaek bee ae ee tlakhhaia te oe ky tare

Gianella, Religious Liberty, Nonestablishment and Doc-

trinal Development. Part II. The Nonestablishment

Principle, 81 Harvard Law Review, 513 (1968) ........

Goldsmith, R., A Study of Savings in the United States

EE eMC d eed et Nee dea eRONERSaTeeeeeRs

Rippie, The Establishment Test of the Religion Clauses

...27U.C.L.A. Law Review 1195 (1980) ........

Miscellaneous:

Digest of Education Statistics, 1979. National Center

for Education Statistics, 1979 ..................

Digest of Education Statistics, 1983-1984. National

Center for Education Statistics, 1983. ...........

Historical Statistics on Government Finances and

Employment, 1973. U.S. Bureau of the Census,

21

21

22

22

17

29

13

29

— vili —

National Income and Product Accounts of the United

States, 1929-1974. U.S. Dept. of Commerce,

Bureau of Economic Affairs, 1977 ..............

O.E.C.D. Observer, The, March, 1979...............

Statistical Abstract of the United States, 1984. U.S.

Bureau of the Census, 1983 ....................

Statistical Summary of Education, 1951-1952. U.S.

ee

Survey of Current Business, National Income Issue:

July 1967 - July 1979. U.S. Dept. of Commerce,

Bureau of Economic Analysis, 1980 .............

United Nations, Universal Declaration of Human

I i eas

— ix —

:

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

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

SECRETARY, UNITED STATES DEPARTMENT OF EDUCATION,

and THE CHANCELLOR OF THE BOARD OF EDUCATION OF THE

City Or New York,

Appellants,

and YOLANDA AGUILAR, and LILLIAN COCON, MIRIAM MARTINEZ

and RELINDA WILLIAMS,

Appellants-Intervenors,

VS.

Betty Louise FELTON, CHARLOTTE GREEN, BARBARA HRUSKA,

Mery. A. SCHWARTZ, ROBERT H. Sipe and ALLEN H. ZELLON,

Appellees.

On appeal from the United States Court of Appeals

for the Second Circuit

MOTION FOR LEAVE TO FILE A BRIEF AS

AMICUS CURIAE AND BRIEF OF PARENTS

RIGHTS, INC., AMICUS CURIAE

IN SUPPORT OF THE APPELLANTS

Parents Rights, Inc. respectfully moves for leave to file the

accompanying brief as amicus curiae in support of Appellants.

Written consent of Counsel for the parties has been requested

but has not been received.

Parents Rights is a national organization consisting of over

20,000 parents and other individuals residing in all fifty states

who seek to support and promote freedom of choice and paren-

ccc aa ae eae

— X--

tal rights in education. The group’s stated purposes are ‘‘to

secure iegal recognition for the right of parents to direct and

control the educaiion of their children; to secure true freedom

of choice for parents in the education of their children; to

undertake and support court action to achieve their goals; to

publish literature and other materials to awaken the public io

the denial of the human rights of the family in education.”’

Members of Parents Rights are concerned with supporting

the natural and constitutional ‘‘rignt coupled with the high du-

ty’’ of parents to ‘‘direct the upbringing and education of

children under their control,’’ with due deference to the interest

of the state in this important field. In this connection they are

also concerned with the implications of this parentai right and

obligation for governmental encouragement, support, and

regulation of education.

,

Members of Parents Rights, Inc., are concerned about the

present case because it ultimately threatens the right and ability

of parents to direct the education of their children. The case

challenges the rights of parents and their children to share com-

parably and equitably in the benefits of general federal legisla-

tion promoting education if they attend schools other than

governmental schools. A contrary decision would not only

deprive such children of needed educational benefits, but would .

also be another pressure on parents to abandon their right to

send their children to schools they consider best for them.

BRIEF AMICUS CURIAE

FOR PARENTS RIGHTS, INC.

INTEREST OF AMICI

The interest of the amici in the instant litigation is set forth in

the accompanying motion to file this brief.

PREFACE

Gratitude is expressed to Professor Emeritus Daniel D.

McGarry and Robert J. Wittmann, as well as to the Thomas J.

White Foundation for help with this brief.

SUMMARY OF ARGUMENT

The limited contacts of government with church-related

schools in the New York application of Title I of the Elementary

and Secondary Education Act do not constitute excessive en-

tanglement of government and religion. Excessive political en-

tanglement is absent because of a broad class of beneficiaries

and the absence of financial subsidization. Excessive ad-

ministrative entanglement is absent because of the features and

circumstances of the program, as well as because of the educa-

tional rights of parents and students being protected and the ad-

vanced degree of socialization of education.

The purpose of the prohibition against excessive ad-

ministrative entanglement, as explained by this Court, is to pro-

tect religion against governmental interference and inhibition.

Opponents maintain that on-premises instruction of students in

non-public schools by public employees is unconstitutional

because government must either run a serious risk of having

public employees inculcate religion in church-related schools, or

exercise extreme surveillance over church-related schools to

avoid this possibility. Either alternative would be unconstitu-

tional, as the first would seriously risk an establishment of

religion, and the second would seriously threaten free exercise

of religion, according to opponents.

=

The features and circumstances of the New York application

of Title I as well as common sense and experience show that

neither is there any serious likelihood of substantial effective in-

culcation of religion by pubiic employees of various persuasions

rendering remedial services in private schools, nor is extreme

surveillance of the schools or their employees present or re-

cuired. The existing supervision, which is sufficient, is of public

school employees by public school employees, and is no more

nor less that that which should be required to prevent inculca-

tion of religion in public schools. Contacts between public

school employees and private school employees are minimal,

and the contacts of government with the church-related institu-

tions are no more than many already existent necessary contacts

of government with such institutions.

The constitutional rights of parents and children require that

considerable contacts between government and church-related

schools and their users be allowed. Many personal rights are

implemented by voluntary private institutions, including

church-related ones. Disallowing general benefits because of

the exercise of such rights, especially when such benefits have

been legislated by Congress, would penalize the exercise of con-

stitutional rights without a substantial and compelling reason.

The increasing socialization of our elementary and secondary

education, according to the principle ‘‘From each according ‘o

his means; to each according to his needs,’’ also requires

allowance of considerable contacts between government and

private educational institutions, such as church-related schools,

if personal freedoms are to survive.

=

ARGUMENT

I. The involvement of government with religion in the ap-

plication of Title I of the Federal Elementary and Secondary

Education Act of 1965 (20 U.S.C. §2701 et seg.), by the New

York City Board of Education does not result in excessive en-

tanglement between government and religion in view of its

features and circumstances.

A. Only ‘‘excessive entanglement’’—not all contact and rela-

tionship between government and religion—is forbidden by the

Religion Clauses of the First Amendment.

The excessive entanglement test for the constitutionality of

relationships between government and religion was clearly

enunciated and explained by this Court in Walz v. Tax Commis-

sion, 397 U.S. 664 (1970) at 668-669 and 674, and in Earley v. Di

Censo, and its companion case Lemon v. Kurtzman, 403 U.S.

602 (1973) at 612-613 and 616-620. The test has been applied in

these and other cases, such as Meek v. Pittenger, 95 S.Ct. 1753

(1975) at 1764-1767 without substantial elaboration of its basic

principles and assumptions.

In stating the excessive entanglement test, this Court said,

‘‘We must also be sure that the end result—the effect —is not an

excessive government entanglement with religion.’’ The Court

then went on to add: ‘‘The test is inescapably one of degree.”’

Lemon v. Kurtzman, as cited, at 674.

The statement of the excessive entanglement test in both Walz

and Lenton was prefaced by an explanation of the First Amend-

ment purposes it was meant to defend. With reference to the

purpose of the Establishment Clause of the First Amendment

and this test, the Court in Walz v. Tax Commission said that

‘“for the men who wrote the Religion Clause of the First

Amendment, the ‘establishment of a religion’ connoted spon-

sorship, financial support, and actual involvement of the

sovereign in religious activity.”” Walz v. Tax Commission, as

cited, at 668.

—_

Consistently with this, this Court in Lemon v. Kutzman listed

as the three main evils against which the Establishment Clause

was intended to afford protection: ‘sponsorship, financial sup-

port, and active involvement of the sovereign in religious activi-

ty.’ ’’ (Citation omitted.) Lemon v. Kurtzman, as cited, at 612.

With reference to the general principle guiding application of

the Religion Clauses and its corollary excessive entanglement

test this Court said: ‘‘The general principle deducible from the

First Amendment and all that has been said by this Court is this:

that we will not tolerate either governmentally established

religion or governmental interference with religion.’’ The Court

then added: ‘‘Short of those expressly proscribed governmental

acts there is room for play in the joints productive of a

benevolent neutrality.’’ Walz v. Tax Commission, 397 U.S. 664

(1970) at 669.

Applying this to the excessive entanglement test, this Court

has said: ‘‘Each value judgment under the Religion Clauses

must, therefore, turn on whether particular acts in question are

intended to establish or interfere with religious beliefs and prac-

tices, or have the effect of doing so. Adherence to the policy of

neutrality that derives from an accomodation of the Establish-

ment and Free Exercise Clauses has prevented the kind of in-

volvement that would tip the balance toward government con-

trol of churches or governmental restraint on religious

practice.’’ Walz v. Tax Commission, as cited at 669-670.

The foregoing statements of the purpose of avoiding excessive

entanglement of government with religion emphasizes protec-

tion of the religious freedom of citizens and their churches, and

relate mainly to avoidance of what has come to be called ad-

ministrative entanglement (see below). This was further ex-

panded in Lemon to include avoidance of political entangle-

ment, which emphasizes protection of the body politic or siate

against excessive intrusion of religion and churches into political

processes. The latter seeks to avoid serious political division

along religious lines. Lemon v. Kurtzman, as cited, at 622-624.

—

Since this particular form of excessive entanglement does not

seem to be especially at issue in the present case, our principal

attention is focused on general and administrative entangle-

ment.

The purposes of non-entanglement as explained by this Court

are mentioned here inasmuch as they can easily be lost sight of

so that the test is misapplied. According to the Court’s explana-

tion, the main purpose of avoiding excessive general and ad-

ministrative entanglement is to protect religion and churches,

while that of avoiding excessive political entanglement is to pro-

tect the state. (See above.)

In explaining the excessive entanglement doctrine, this Court

has made clear that not all contact and involvement of govern-

ment with religion is prohibited—only excessive entanglement.

Thus in Walz the Court, quoting Mr. Justice Douglas writing

for the Court in Zorach, said: ‘‘The First Amendment,

however, does not say that in every and all respects there shall

be a separation of Church and State.’ Jd. (Zorach v. Clauson,

343 U.S. 306 (1952)) at 312.”’ Walz v. Tax Commission, as cited

at 669. After saying that, ‘‘we will not tolerate either govern-

mentally establisiied religion or governmental interference with

religion,’’ the Court as previously mentioned, added: ‘‘Short of

these expressly proscribed governmental acts, there is room of

play in the joints productive of a benevolent neutrality... .’’

Walz v. Tax Commission, as cite‘ at 669. Regarding the ex-

cessive entanglement test itself, the Court admonishes us that,

‘*The test is inescapably one of degree.”’

This Court has also explained that the degree of general or ad-

ministrative involvement of government with religion that

would be excessive would be one, ‘‘that would tip the balance

toward government control of churches or governmental

restraint on religious practice.’’ Walz v. Tax Commission, as

cited, at 669-670. Such excessive involvement has also been

described by this Court as “‘intrusion’’ or as extreme, unwar-

ranted, and resented entry of either church or state ‘‘into the

—_

,

precincts [or affairs] of the other.’’ Lemon v. Kurtzman as

cited, at 614; Lynch v. Donnelly, 104 S.Ct. 1355 (1984) at 1358.

It may be seen from the foregoing that the principle confu-

sion which may arise in applying the excessive general or ad-

ministrative entanglement test is to conceive of it as a protection

against an establishment of religion. According to the explana-

tions of this Court discussed above, the purpose of the general

or administrative entanglement test is to protect religion and

churches from excessive government interference; while that of

the political non-entanglement test is to protect the body politic

from extreme division over religious issues. Accordingly, the

principle of non-entanglement does not include protection

against establishment of religion, which is presumably to be left

to the purpose and primary effect tests, which are better

adapted to accomplishing this in a just and equitable manner.

Based on discussions of this Court, excessive entanglement is

usually divided into two kinds; administrative and political.

Lemon v. Kurtzman, as cited, at 614-620 and 622-623; Roemer

v. Board of Public Works, 426 U.S. 736 (1976) at 748-750; Jesse

H. Choper, ‘‘The Religion Clauses of the First Amendment’’ in

41 University of Pittsburgh Law Review, 673 (1980) at 678-685;

Kenneth F. Ripple, ‘‘The Entanglement Test of the Religion

Clauses...”’ in 27 U.C.L.A. Law Review, 1195, (1980)

1195-1208. Since the absence of excessive general or ad-

ministrative entanglement in the New York application of Title I

is the main concern of this brief, we will first briefly discuss the

absence of excessive political entanglement.

B. Excessive political entanglement between government and

religion is not engendered by the New York application of Title

I.

According to this Court, excessive political entanglement is

that degree of involvement of religion and politics which

threatens to bring about undesirable political division among

citizens along religious lines. Also, according to the Court, such

— po

extreme division may arise when there is a question of providing

governmental financial assistance for church-related education.

Further, according to the Court, such division was one of the

evils which the First Amendment sought to obviate. Lemon v.

Kurtzman, as cited at 622-623.

Such excessive political entanglement and extreme divisive

political potential is absent in the present application of Title I

because of the broad class of beneficiaries that includes disad-

vantaged public school students as well as disadvantaged private

school students, and benefits many more (over seven times) of

the former than of the latter. Felton v. Secretary, United States

Department of Education, 739 F.2d 48 (1984) at 51. Rather

than being a cause of division, the inclusion of private school

students has been a factor for unity and was actually one of the

features that promoted general acceptance and passage of the

original legislation.

As a result of the broadness of the legislation, there has been

no evidence of its resulting in political division for religious

reasons in the several years since its original passage in 1965.

Political division is also avoided because the federal entitlement

program does not come up for annual renewal—one of the

disrupting difficulties of the legislation at bar in Lemon-

Earley. Lemon v. Kurtzman, as cited, at 623-624.

A further factor favoring political peace concerning Title |

and its application in the City of New York is the fact that the

federal subsidization is directed to a public school district and

its employees, and it does not involve any direct subsidization of

private and church-related schools and/or teachers. Further-

more, the services are also rendered to and directly benefit the

disadvantaged children themselves rather than the schools.

Finally, this Court has twice declared that a serious danger of

excessive political entanglement in such cases arises only in the

event of direct financial payments or reimbursements to church-

related schools or their teachers: this limitation was mentioned

in Mueller v. Allen, 103 S. Ct. 3062 (1983) at 3071, n. 11, and

—

was repeated and confirmed in Lynch v. Donnelly, 104 S.Ct.

1355 (1984) at 1364-1365.

C. Several important features and circumstances contribute

to prevent excessive administrative entanglement of government

with religion in the application of Title I of the Elementary and

Secondary Fducation Act in New York City.

Opponents of New York’s application of Title I of the

Federal Elementary and Secondary Education Act argue that it

results in a dilemma for government, either response to which

would be unconstitutional. On the one hand, if the government

does not provide for ‘‘comprehensive, discriminating, and con-

tinuing surveillance and controls,”’ it runs a serious risk of sub-

sidizing an impermissible fostering of religion. On the other

hand, if the government does provide such extreme surveillance

and controls it becomes engaged in excessive entanglement with

religion which seriously threatens the independence and

freedom of religion. Either course, according to the argument

would violate the Religion Clauses of the First Amendment.

It should first be observed, as has been noted above, that ‘‘ex-

cessive involvement”’ is relative: ‘‘a matter of degree,’’ Walz v.

Commission, as cited at 674; Wheeler v. Barrera, 417 U.S. 402

(1974) at 426. Dependent on all the circumstances, this relativi-

ty and allowable degree is also in relation to the various factors,

such as personal rights and public interests involved. With

specific reference to entanglement, this Court has noted that,

‘*the line of separation”’ is a ‘‘variable barrier depending on all

the circumstances of a particular relationship.’’ Lemon v. Kurt-

zman, as cited, at 614. With regard to ‘‘on premises’’ instruc-

tion by public teachers, the Court, implying consitutionality at

least under certain conditions, has noted that, ‘“‘The First

Amendment implications may vary according to the precise con-

tours of the plan formulated.’’ Wheeler v. Barrera, 417 U.S.

402 (1974) at 426. This Court has also said: ‘‘The task of

deciding when the Establishment Clause is implicated in the

context of parochial school aid has proved a difficult

=

one... Usually it requires a careful evaluation of the facts of the

particular case. ...A federal court does not sit to render a deci-

sion on hypothetical facts....’’ Wheeler v. Barrera, 417 U.S.

402 (1974) at 426-427 (citations omitted).

Emphasizing the extreme nature of the degree of general and

administrative entanglement between government and religion

that would make relations between them suspect of being un-

constitutional, this Court has said that it would be, ‘‘that kind

of involvement that would tip the balance toward government

control of churches or government restraint on religious prac-

tice.” Walz v. Tax Commission, as cited, at 669-670.

We will show that neither ‘‘horn’”’ or alternative of the dilem-

ma mentioned above—impermissible fostering of religion or its

inhibition by extreme surveillance—is fulfilled, necessitated, or

gravely threatened.

1. The involvement of government and religion in the New

York application of Title I does not incur a serious risk of an

impermissible fostering of religion. In order to be constitu-

tionally disabling, fears must be reasonable and well grounded

and risks must be grave and real. Exaggerated fears and

minimal risks or mere possibilities are not enough. As this

Court has said, ‘‘the measure of constitutional adjudication is

the ability to distinguish between real threat and mere shadow.”’

Marsh v. Chambers, 103 S. Ct. 3330 (1983) at 3337. This Court

has also said: ‘‘A possibility always exists, of course, that the

legislative objectives of any law or legislative program may be

subverted by conscious design or lax enforcement...but judicial

concern about these possibilities cannot, standing alone, war-

rant striking down a statute as unconstitutional.’’ 7il/ion v.

Richardson, 403 U.S. 672 (1971) at 679 (plurality opinion).

According to the unanimous decision of the three-judge

District Court in National Coalition for Public Education and

Religious Liberty v. Harris, 489 F.Supp. 1248 (1980), the

church-related schools involved in the New York program are

not pervasively sectarian in the way and to the degree attributed

—

/

to the Rhode Island schools in Lemon v. Kurtzman - Earley v.

DiCenso, (as cited, at 615-618); the equipment and material pro-

vided are used and controlled solely By the public schoo! person-

nel; all religous symbols are removed from the classrooms; the

financial assistance provided by the federal governriient goes

directly to the public board of education and its employees for

instruction and services for disadvantaged students; no financial

subsidy is provided for the private schools or their personnel;

the only supervision and surveillance involved or necessary is of

public school employees by public school personnel; actual con-

tacts between public school personnel and private school per-

sonnel are limited, niinimal, and routine; and the program in

the past 14-17 years has not engendered any impermissible in-

culcation of religion at public expense or any excessive entangle-

ment between state and church.

National Coalition for Public Education and Religious Liber-

ty v. Harris, 489 F.Supp. 1248 (1980), appeal dismissed for want

of jurisdiction sub nom. National Coalition for Public Educa-

tion and Religious Liberty v. Hufstedler, 449 U.S. 808 (1980):

489 F. Supp. 1248 (1980) at 1262-1264 and 1267-169. Evidence

in the case thus demonstrates the absence of serious potential

for excessive entanglement and impermissible fostering of

religion by public school personnel entering private church-

related schools is further shown by the following:

The change in the character of church-related schools

themselves in recent years (apart from the ingress of public

school teachers in the application of Title I) is illustrated by the

fact that nationwide, whereas in 1960 the proportion of

religious teachers (nuns, brothers, and priests) to lay teachers

was about 2 to 1, by 1982 it was 1 to 2. Statistical Abstract of

the United States: 1984 (U.S. Bureau of the Census, 104th ed.,

1983) at 156. .

This is but one aspect of the reduction of the supposed ‘‘per-

vasively religious atmosphere’’ penetrating every subject in

these schools when taught by their own regular teachers.

ax fh a

The nature of the public teachers employed and professionals

coming into church-related schools for remedial work in the ap-

plication of Title I make it highly unlikely that they will seek to

inculcate the religion of the school, or maintain a ‘‘pervasively

religious atmosphere in their classes. About three-fourths

(73.5%) of the public teachers coming into the private schools

in the New York application of Title I are of faiths different

from that of the schools in which they are teaching; and about

three-forths (78%) of them are also itinerant. Felton v.

Secretary, as cited, 739 F 2d 48 (1984) at 53 and J.A. 44-45. The

public teachers and professionals have been given detailed in-

structions calculated to prevent them from injecting any religion

into their teaching and services. They are also regularly super-

vised by public school supervisors to see that they are observing

these restrictions. (JA 45-51); Felton v. Secretary, as cited, at

53; and National Coalition for P.E.A.R.L. v. Harris, as cited,

at 1267-1269. Evidence shows that the regulations have been

strictly observed and no known violations on the part of the

public employees have occurred in the several years of the ex-

istence of the program. National Coalition for P.E.A.R.L. v.

Harris, as cited, at 1267-1268. Felton v. Secretary, as cited, at

53-54.

It is difficult to see how and why public teachers would

violate their instructions and commitments to try to inculcate

the religion of the sponsoring bodies of the schools wherein they

teach when they would be needlessly violating these instructions

and commitments, be risking their position and professional

standing with the School Board, be injecting religion in an il-

logical, incongruous, and even ridiculous manner into unrelated

subjects and services, and would in most cases be inculcating

religious views other than their own or religious doctrines con-

cerning which they had insufficient knowledge.

The situation with regard to the teachers applying Title I in

New York is in marked contrast to the original situation with

regard to the religious teachers in the Rhode Island schools,

which apparently prompted the excessive entanglement doctrine

_—

in Earley v. DiCenso - Lemon v. Kurtzman, as cited above,

which situation was projected into subsequent cases such as

Meek vy. Pittenger, also above cited. 95 S.Ct. 1753 (1975). In

Earley - Lemon ‘“‘approximately two-thirds’’ of the teachers

in the church-schools were ‘‘nuns of various religious orders”’

Lemon v. Kurtzman, as cited, at 615. The teachers therein were

teaching a variety of secular subjects, some of which could

possibly lend themselves to supporting a certain religious view-

point. The preponderance of nuns in the Rhode Island schools

enhanced the ‘“‘religious atmosphere”’ of the latter according to

the Court. /d., at 615-617. It was apparently mainly of such

teachers that the Court surmised that *‘a dedicated religious per-

son, teaching in a school affiliated with his or her faith, and

operated to inculcate its tenets, will inevitably experience great

difficulty in remaining religiously neutral.’’ Jd. at 618.

The subject matter taught and services rendered by public

school personnel do not really lend themselves to the inculcation

of religion — at least to its ‘éffective inculcation. No one has

never shown how such subjects ag remedial reading, remedial

English, and remedial mathematics can be made fertile fields for

effective religious inculcation or how they can participate in

religious pervasion. Common sense and the ordinary experience

of both students and teachers dictate and testify otherwise. It

would be illogical, incongruous, ridiculous, and almost certain-

ly unproductive—even counterproductive—for public

employees to drag religion into purely secular remedial courses

and services.

The terms ‘‘religious atmosphere’’ and ‘‘pervasively religious

instruction’ have often been applied to church-related schools

in a somewhat a priori manner. But the supposed ‘‘religious at-

mosphere’”’ of church-related schools and its degree and im-

plications are often assumed or exaggerated. Public school

teachers and other professionals in the New York application of

Title I testified that they did not perceive ‘‘a dominant sectarian

mission’’ in the church-related schools wherein they taught. Na-

tional Coalition for P.E.A.R.L. v. Harris, as cited, at 1263.

Allegations of a ‘‘predominant’”’ or ‘*pervasive religious at-

mosphere’ are based mainly on two things: the asserted sole or

main purpose for the foundation and maintenance of the

church-related schools, and the preponderance of dedicated

religious persons in the schools. Lemon v. Kurtzman, as cited at

615-616; and Meek vy. Pittenger, as cited, at 1758-1759 and

1764-1765. Mention is also made of such things as the presence

of religious symbols and frequent proximity of a church or

chapel, although the influence of the latter would seem to be

comparatively minor.

As has been seen, the ‘‘religious atmosphere’ of church-

related schools as far as the preponderance of religious persons

(nuns, brothers, and priests) is concerned has radically declined

in the last two decades. Today the situation is reversed, with a

preponderance of lay persons and the trend seemingly continu-

ing. Digest of Education Statistics, 1983-4 as above cited, at

156.

As far as the predominant purpose of the foundation and

maintenance of church-related schools is concerned, it is safe to

say that in colonial times, when such schools were the main and

practica!ly exclusive educational institutions on all levels, they

were founded as much (perhaps even more) for secular as for

religious education.

It has been alleged repeatedly that church-related schools are

so pervasively religious with such a dominant ‘‘religious mis-

sion’ in them that secular and religious instruction are ‘‘inex-

tricably intertwined’’ because “‘the religious mission’’ is the on-

ly reason for the church-related school to exist. See, v.g. Meek

v. Pittenger, as cited, at 1758-1759 and 1764-1765. Besides the

fact that this is an exaggeration, a characterization of the essen-

tial and pervasive nature of these schools based on a partial

motive for their founding confuses a leading motive of their

founders with the full nature of their product. Many Christians

seek to follow the injunction of St. Paul: ‘‘Whether you eat or

drink or whatsoever else you do, do all for the glory of God.”’ I

Pe re ao ore Bee

“_— Pe

te ieee, es

Cor., 10:31. But a religious motive or intention does not change

the essential nature of their acts such as eating and drinking

from being physical and secular to being essentially religious. If j

it did, the provision of social security payments to them for such

purposes might be unconstitutional. Despite such motives and |

intentions, by far the principal activity of church-related schools

is provision of secular instruction in secular subjects, even )

though they have been founded and may be maintained partly

or mainly to insure the inclusion of adequate religious instruc-

tion in the education of children.

2. The surveillance or supervision maintaine! and required |

over public school personnel providing remedial instruction and |

services in church-related schools in the application of Title I in

New York does not result in excessive entanglement of govern-

ment and religion.

The existing supervision of public school personnel providing

remedial instruction and services in church-related schools is not

intense and does not result in excessive entanglement of govern-

ment with religion. It is not that kind of excessive involvement

‘*that would tip the balance toward government control of chur-

ches or governmental restraint on religious practives.’’ Walz v.

Tax Commission, as cited, at 669-670. The surveillance or

supervision is limited to supervision of public school employees

by public school employees, and does not extend to the church-

related schools themselves or to their employees and instruction.

There is no substantial relationship developed between govern-

ment and religion. No further surveillance is required because

of the unlikelihood of the public school employees engaging in

religious instruction under the circumstances. There is actually

less likelihood of public school employees communicating to

their students in nonpublic schools their own religious convic-

tions as to the general meaning of life and the best life than of

their doing so in public schools where there are practically no

precautions against this or monitoring in this respect. Whereas

these same employees have very little supervision of their

teaching in public schools insofar as such content is concerned,

=

in the church-related schools they have both instructions and

supervision to avoid any inculcation of a religion or an outlook

on and program for life. Excessive surveillance imperilling

religious freedom is not required by the New York program

because of the very remote possibility of unconstitutional in-

culcation of religion through it, and, even if it were to be re-

quired in whatever degree, such surveillance would not affect

the teaching of religion in the church-related schools. Neither

would it adversely affect the freedom of religion in the school or

substantially diminish the latter’s independence of government.

Il. The right of parents to direct the education of their

children allows and requires considerable contacts and involve-

ment between government and church-related schools.

A. Parents have a right to direct the education of their

children including use of church-related schools of their choice.

1. Parents have a constitutional right to direct the education

of their children in schools of their choice.

This Court has several times affirmed the constitutional right

of parents to direct the education of their children and protected

and promoted the implementation of this right, as in Meyer v.

Nebraska, 262 U.S. 390 (1923) at 400-402; Pierce v. Society of

Sisters, 268 U.S. 510 (1925) at 534-535; Everson v. Board of

Education, 330 U.S. 1 (1947) at 18; Griswold v. Connecticut,

371 U.S. 479 (1965), at 510; Minersville v. Gobitis, 310 U.S. 586

(1940); Prince v. Massachusetts, 321 U.S. 158 (1944) at 166; and

Wisconsin v. Yoder, 406 U.S. 205 (1972) at 213-214.

In Meyer v. Nebraska, 262 U.S. 390 (1923) this Court upheld

the natural and constitutional right of parents to determine and

include courses of instruction, including the German language

(at the time in disrepute), best calculated to prepare their

children for their future life: The Court said:

**Corresponding to the right of control, it is the natural duty

of the parent to give his children educaiton suitable to their sta-

=

tion in life.... That the State may do much, go very far indeed, in

order to improve the quality of its citizens, physically, mentally

and morally is clear, but the individual has certain fundamental

rights which must be respected.’’ Meyer v. Nebraska, as cited,

at 400-401. The Court went on to say: ‘‘In order to submerge

the individual and develop ideal citizens, Sparta assembled the

males at seven into barracks and entrusted their subsequent

education and training to official guardians. Although such

measures have been deliberately approved by men of great

genius their ideas touching the relation between individual and

state were wholly different from those upon which our institu-

tions rest; and it hardly will be affirmed that any legislature

could impose such restrictions upon the people of a state

without doing violence to both letter and spirit of the Constitu-

tion.’’ Jd at 402.

What has come to be a classic statement of the right of

parents to direct the education of their children was made by

this Court in Pierce v. Society of Sisters, 268 U.S. 510 (1925), in

which the Court first reaffirmed the broad principle laid down

in Meyer (supra):

‘**As often heretofore pointed out, rights guaranteed by the

Constitution may not be abridged by legislation which has no

reasonable relation to some purpose within the competency of

the State. The fundamental theory of liberty upon which all

governments in this Union repose excludes any general power of

the State to standardize its children by forcing them to accept

instruction from public teachers only. The child is not the mere

creature of the State; those who nurture him and direct his

destiny have the right, coupled with the high duty to recognize

and prepare him for additional obligations.’’ Pierce v. Society

of Sisters, as cited, at 534-535.

In Griswold v. Connecticut, 381 U.S. 479 (1965), Justice

Douglas, writing for the Court reaffirmed the right of parents to

direct the education of their children and associated it with the

general rights of freedom of communication and information,

also affirmed by the First Amendment, as well as with rights

-

ee eee

—

prescribed by the Fourteenth Amendment: ‘‘By Pierce v. Socie-

ty of Sisters, supra, the right to educate one’s children as one

chooses is made applicable to the States by the force of the First

and Fourteenth Amendments. By Meyer v. Nebraska, supra,

the same dignity is given the right to study the German language

in a private school. In other words, the State may not, con-

sistently with the spirit of the First Amendment, contract the

spectrum of available knowledge.’’ Griswold v. Connecticut, as

cited, at 482.

In Wisconsin v. Yoder, 406 U.S. 205 (1972), this Court went

so far as to approve the excusal of Amish parents and their

children from the obligation of compulsory education laws with

regard to academic secondary education, upholding parental

rights regarding, ‘‘the religious upbringing of their children’’ in

order to ‘‘prepare (them) for additional obligations.’’ Wiscon-

sin v. Yoder, as cited, at 214.

The primary right of parents to direct the education of their

children is also, incidentally, affirmed by the Universal Declara-

tion of Human Rights of the United Nations, to which the

United States is a signatory. Article 26, Section 3 of this

Declaration says: ‘‘Parents have a prior right to choose the kind

of education that shall be given to their children.’’ United Na-

tions, Universal Declaration of Human Rights (Reprint, 1981)

2. The right of parents to educate thier children in schools of

their choice includes the right to have them educated in church-

related schools that include religion along with secular subjects.

Originally most of the schools in this country were church-

related schools which included religion along with secular sub-

jects. These schools were supported by public subsidies as well

as by private donations and fees paid by parents. Brickman,

Historical Background. . .1 Educational Freedom, ed. McGarry

and Ward (1966), 6-8.

For some time, following the advent of public education as

we know it, public schools continued to inculcate a general form

of Protestant Christianity. But eventually the increasingly

Ee ee eee

heterogeneous nature of our communities has caused religious

education to be excluded from public schools. /d., 11-17.

Since the advent of free public education, many parents have

continued to send their chiidren to private church-related

schools because of the features of the secular education provid- :

ed in them as well as in order to provide their children with an

adequate and effective religious education. This is still the dual

purpose of the majority of nonpublic schools in the United

Siates: to provide sound secular instruction accompanied by

religion instruction.

In upholding the right of parents to direct the education of

their children in several cases, this Court has incidentally upheld

their right to educate them in church-related schools. This it has

done both by not restricting the parental right in education, and

also by favorably deciding cases involving church-related educa-

tion and religious-oriented education, as in Pierce v. Society of

Sisters, as cited above; Prince v. Massachesetts, as cited above;

and Wisconsin v. Yoder, as cited above. In such cases, the

Court has specifically referred to the right of parents to provide

their children with a general education that includes religious

along with secular education.

In Prince v. Massachesetts, 321 U.S. 158 (1944), the Court

said:

‘“It is cardinal with us that the custody, care and nurture

of the child reside first in the parents, whose primary func-

tion and freedom include preparation for obligations the

state can neither supply nor hinder.’ Prince v.

Massachusetts, as cited, at 166.

3. The natural and constitutional right of parents to direct the

education of their children is further supported by the First

Amendment rights of free exercise of religion and freedom of

communication and information.

a) This right is supported by the right of free exercise of

religion.

— wn

To recognize the parental right to direct the education of their

children in schools of their choice, but to deny them the right to

send them to church-related schools which include religion in

their curriculum along with secular subjects would be contrary

to the First Amendment’s prohibition against governmental in-

hibition of ‘‘the free exercise of religion’’ as extended to the

states by the Fourteenth Amendment, according to Cantwell v.

Connecticut, 310 U.S. 296 (1940).

This Court in Abington School District v. Schempp, 274

U.S. 203 (1963), in speaking of the ‘‘wholesome neutrality”’

demanded of government by the Religion Clauses after referring

to the Establishment Clause, says of the Free Exercise Clause, as

applied to education:

And a further reason for neutrality is found in the Free

Exercise Clause, which recognizes the value of religious

training, teaching and observance and more particularly,

the right of every person to freely choose his own course

with reference thereto, free of any compulsion from the

state. Abington School District v. Schempp, as cited, at

223.

This Court also stressed governmental neutrality regarding

religion and the teaching of religion in Epperson v. Arkansas,

393 U.S. 97 (1968) at 103.

It is obvious that freedom of parents to transmit their religion

adequately to their children by general education that includes

religion, as well as the right of their children to receive this

education is an integral part of their constitutional right to a

‘*free exercise of religion.’’

b) The right of parents to educate their children in church-

related schools is further supported by the freedom of com-

munication and information required by the First Amendment.

That the freedom of communication and information re-

quired by the First Amendment apply to education and its con-

=

tent, including religion, is confirmed by this Court in various

cases.

As noted above, Justice Douglas, writing for the Court in

Griswold v. Connecticut, above cited, noted that the general

rights of freedom of communication and information affirmed

by the First Amendment were associated with the right of

parents to direct the education of their children, and concluded:

‘‘In other words, the State may not, consistently with the spirit

of the First Amendment, contract the spectrum of available

knowledge.’’ Griswold v. Connecticut, as cited, at 482.

This right of academic freedom is also forcibly proclaimed by

this Court in Keyishian v. Board of Regents, 385 U.S. 589

(1967), wherein the Court says:

“Our nation is deeply committed to safeguarding

academic freedom, which is of transcendent value to all of

us and not merely to the teachers concerned. That freedom

is therefore a special concern of the First Amendment,

which does not tolerate laws that cast a pall of orthodoxy

over the classroom. ‘The vigilant protection of constitu-

tional freedoms is nowhere more vital than in the com-

munity of American schools.’ ’’ (Citation omitted).

Keyishian v. Board of Regents, 383 U.S. 589 (1967) at 603.

In Board of Education v. Barnette, 319 U.S. 624 (1942), this

Court insisted on the same principle, saying: ‘‘If there is any

fixed star in our constitutional constellation, it is that no of-

ficial, high or petty, can prescribe what shall be orthodox in

politics, nationalism, religion, or other matters of opinion... .”’

Board of Education v. Barnette, as cited, at 641.

This right of choice ‘‘in politics, nationalism, religion, or

other matters of opinion,’’ with its associated right of choice of

education, is left to individuals, and in the case of children it is

rendered on their behalf by their parents.

=

4. The constitutional right of parents to direct the education

of their children and have it include religion along with secular

subjects is accompanied by a right of their children to receive

this education.

In our society parents have a right to direct the education of

their children and provide them with a general education that

includes religion along with secular subjects. Most of the rights

of minor children in our society are protected, asserted, and im-

plemented for them by their parents. Among these rights of

children is a right to receive an education that includes religion

as well as secular subjects, if such is chosen by their parents.

This right is ultimately based on the same foundations as the

educational right of their parents.

B. The constitutional rights of parents and their children

regarding education require allowance of considerable contacts

and involvement between government and church-related

schools, especially when participation in general educational

benefits is legislated by Congress.

1. Congress has legislated, with this Court’s approval, that

children in non-governmental schools, including church-related

schools, should share comparably with public school children in

the educational benefits of the federal Elementary and Secon-

dary Education Act.

In the Elementary and Secondary Education Act of 1965, as

amended, Title 1, 20 U.S.C. §2701 ef seq. (1982) and the related

Education and Consolidation Act of 1981, Chapter I, 20 U.S.C.

§3801 et seq. (1982), Congress has legislated that children

enrolled in private schools shall share equitably with children in

public schools in the educational services provided by the Act,

taking into account the number of disadvantaged students from

low income families to be served and their needs. 20 U.S.C.

§3806 (1982). To insure this equity, Congress has legislated that

the expenditures and arrangements for such services shall be

equal, taking into account the number and needs of the

= po

children. Jd. These provisions and requirements are further

stated in the Regulations found in 34 C.F.R. §200 and 45

C.F.R. §116 (1983) which repeat and further expedite the re-

quirement of “‘participation on an equitable basis’’ of such

children. This is to be ‘‘a basis comparable to that used in pro-

viding for the participation of public school children.’’

In Wheeler v. Barrera, 417 U.S. 402 (1974) this Court upheld

the aforesaid Congressional legislation and its requirements for

comparable treatment and benefits for nonpublic, including

church-related school children. In this connection the Court

mentioned, but declined to decide concerning the constitu-

tionality of on-premises instruction by public school teachers,

observing that federal Courts do not sit to decide hypothetical

cases and that ‘‘First Amendment implications may vary accor-

ding to the precise contours of the plan that is formulated.’’

Wheeler v. Barrera, as cited, at 426.

Meanwhile, in the New York application of Title I of the

E.S.E.A., after trying various alternatives, it was found that

both off-premises instruction in public schools after school

hours and on-premises instruction in nonpublic schools after

school hours were poorly attended and had poor results. Cost

studies also demonstrated that busing nonpublic school students

to public schools during school hours would cost almost half

(42%) of the total budget for such students, and thus provide a

lesser amount of educational services for a smaller number of

students as compared to those provided for public school

students. This was due not only to the greatly increased cost,

but also to the loss of time involved in the transfer of students.

It was decided that the most practical and effective—perhaps

the only way to provide comparable services for nonpublic

school students—was to provide on-premises remedial educa-

tional services by public personnel during regular school hours.

Felton v. Secretary, 739 F.2d 48 (1984). In formulating the New

York program, careful attention was paid to prior decisions and

opinions of this Court. The possible constitutionality of such a

ee eee eee ee eee. ee ee ae Se ~~

program seemed to have been intimated in Wheeler v. Barrera,

417 U.S. 402 (1974) at 426, as well as by the judgment and opi-

nion of Justice Brennan in Nebraska State Board of Education

v. Hartington, 195 N.W.2d 161; cert. denied, 409 U.S. 921

(1972) at 926.

2. Denial of the constitutionality of the New York application

of Title I of the E.S.E.A., in the absence of a substantial and

compelling reason for such denial, would unjustly penalize con-

stitutional rights of parents and children who use church-related

schools.

a) It is unlawful to penalize the exercise of a constitutional

right in the absence of a compelling governmental reason.

It is unlawful to penalize the exercise of a constitutional right

without a substantial and compelling governmental reason since

such penalization could inhibit or even completely frustrate the

exercise Of a constitutional right.

In Thomas v. Collins, 323 U.S. 516 (1944) this Court said:

“Only the gravest abuses, endangering paramount interests,

give occasion for possible limitation’’ of such a right as that of

freedom of communication and information. The same princi-

ple would apply to freedom of education. Thomas v. Collins, as

cited, at 530. In Torcaso v. Watkins, 367 U.S. 488 (1961) the

same principle was maintained.

In Speiser v. Randall, 357 U.S. 513 (1958), in declaring un-

constitutional. California’s denial of tax-exemptions for

veterans who refused to subscribe to a loyalty oath, this Court

declared that a burden—direct or indirect—may not be placed

upon the exercise of a constitutional right without a compelling

and substantial governmental interest. Speiser v. Randall, as

cited, at 526-527.

In Sherbert v. Verner, 374 U.S. 398 (1963) this Court reaf-

firmed the same general principle. Sherbert v. Verner, as cited,

at 402-403 and 406-407. In this case, which concerned a Sab-

— oa

batarian who had been denied unemployment benefits because

she refused to work on Saturday, the Court added: ‘‘It is too

late in the day to doubt that the liberties of religion and expres-

sion may be infringed by the denial of or placing of conditions

upon a benefit or privilege.’’ (Citations omitted). /d. at 404.

b) Denial of the comparable educational services provided by

the New York application of Title I for children in church-

related schools would penalize the exercise of the constitutional

rights of parents and children. Parents, as has been seen, have a

right under the Constitution to educate their children in church-

related schools, and their children have a corresponding right to

this education. These rights are based not only on personal

freedoms implied by the Constitution in general, but also on the

free exercise of religion and freedom of communication and in-

formation provisions of the First Amendment, as has been seen.

Parents and their children have a right to share in educational

benefits accorded them by Congress based on the equal protec-

tion and equal treatment provisions of the Fourteenth Amend-

ment. The latter requires that citizens be allowed to share

equally in the benefits afforded by governmental legislation

without ‘‘invidious classifications.’’ The latter principle was

applied by this Court in Shapiro v. Thompson, 394 U.S. 618

(1969), when the Court struck down the requirement of one year

of residency for eligibility for welfare benefits, saying that this

would be ‘‘an invidious discrimination, denying them (those ex-

cluded) equal protection of the laws’’ and would ‘‘chill’’ the

constitutional right of the poor and migratory to travel from

State to state. Shapiro v. Thompson, as cited, at 627.

Denial of a comparable share in general benefits accorded to

students in the case of students in church-related schools would

penalize and handicap both their rights and those of their

parents. It would unnecessarily deprive them of educational

benefits to which they are entitled by law, and would adversely

affect their present and future education as well as their future

prospects. It would penalize the exercise of parental rights since

—

it would impede and financially penalize the parental right and

obligation to educate their children, make it desirable or

obligatory for them to purchase educational services which

would otherwise be supplied without cost, and would also in-

fluence them to abandon their otherwise free choice of schools

and send their children to public schools so that they could

receive these services.

c) There is no adequate or compelling and substantial govern-

mental interest demanding denial of participation in New York

application of Title I to private school parents and their

children.

The constitutional rights of parents and students favor

allowance of their participation in the efficient, effective New

York application of Title I of the Elementary and Secondary

Education Act. These rights are important and essential for the

preservation of our democratic freedoms. There are no propor-

tionate compelling and substantial adverse reasons requiring

nullification of the New York program.

The Appeals Court of the Second Circuit struck down the

New York program on the basis of alleged ‘‘excessive entangle-

ment.’’ But it has been shown clearly that the program does not

involve excessive political entanglement. Neither does the pro-

gram involve excessive general or administrative entanglement.

The New York application of Title I does not include or

necessitate extreme surveillance of the instruction or processes

of the church-related schools themselves or the latter’s own

teachers. The program does not threaten seriously to inhibit

religion, which is the evil that avoidance of excessive general or

administrative entanglement seeks to obviate. It is true that

there might be some reduction of the time that could otherwise

supposedly be spent in religious instruction and that there is in-

creased contact with persons (teachers) of other persuasions.

But the supposed loss of time and distracting contact would not

be serious since the time would be minimal and most other

teaching of alternative related secular subjects in the schools is

on tihan

actually not saturated with religion to the point supposed. Due

to the restrictions and supervision, the public teachers in the

church-related schools would actually be less likely to inculcate

their own religious views than in the public schools, where such

specific restrictions and supervision are absent.

3. The rights of parents who send their children to church-

related schools allow and require a considerable degree of con-

tact and involvement between government and church-related

schools.

If parents send their children to church-related schools and if

government confers certain benefits on these parents and their

children along with public school parents and children, contacts

of government with these children and parents as well as with

their freely chosen schools are necessary.

These contacts, which are caused by governmental activities,

do not necessarily decrease religious freedom; rather they serve

to protect it.

Ill. The advanced degree of socialization of elementary and

secondary education in the United States requires allowance of

considerable contacts and involvement between government

and church-related schools if personal freedoms are to survive.

A. Socialization, or application of the principle ‘‘From each

according to his means; to each according to his needs’’ requires

allowance of considerable contacts between government and

voluntary private insitutions, if the latter and the personal

freedoms they represent are to survive.

In an article in the Harvard Law Review, Professor Gianella

makes the point that increasing government subsidization and

activity in various social welfare and educational fields

necessitates increased contact with private organizations, in-

cluding church-related ones, operating in these fields. Gianella,

Religious Liberty, Nonestablishment, and Doctrinal Develop-

ment: The Nonestablishment Principle, 81 Harvard Law

Review, 513 (1968).

=

As socialization proceeds, governmental contacts with private

institutions must be allowed to increase if the private choices

and personal liberties these institutions represent are to survive.

This point is readily apparent if we suppose a country with more

or less complete socialization, such as the Soviet Union, as does

Professor Gianella. Jd, at 522-523. Private interests and

choices are expressed and implemented by voluntary social in-

stitutions, such as private hospitals, homes for the needy and

aged, and schools. To the degree that public institutions are

maintained and financed, while private institutions are starved

and made uncompetitive, personal freedoms will wither. When

government extends its activities and subsidization in social

welfare and educational fields, it should also extend its sub-

sidiary contacts with voluntary private institutions, including

church-related ones or their students, Congress has done this in

passing and amending the Elementary and Secondary Educa-

tion Act of 1965, which New York is effectively implementing.

B. Socialization of elementary and secondary education in the

United States has proceeded to the extent that it dominates this

field and constitutes the leading example of a general trend to

socialization.

The general level of socialization in the United States is best

measured by public spending. Government expenditures on

federal, state, and local levels, as a percentage of Gross Na-

tional Product (GNP) equaled 37.2% of the GNP in 1978, as

compared to 8% in 1902; and these expenditures will equal 50%

by the year 2040 if the present growth rate continues. Expressed

as a percentage of national income or personal income, public

expenditures equaled 46.1% in 1978, an increase from 38.1 % in

1952; and will, if they progress at the rate of recent decades,

reach 50% by the end of the 1980s. Federal expenditures in-

creased by 163% (in constant dollars) between 1952 and 1978.

State and local expenditures increased by 385% in the same

period, or from 7.3% to 14.3% of GNP. (Sources of informa-

tion for this section are cited at the end of the section.)

= va

There were sharp increases in governmental expenditures bet-

ween 1913 and 1922, and between 1932 and 1945, primarily due

to the fiscal effects of World Wars I and II. The growth rate of

public expenditures since 1952 has been proceeding at a still very

substantial rate. Omitting the costs of wars and national

defense, all other governmental expenditures, mostly for

domestic services, grew by 498% between 1952 and 1978,

whereas personal consumption grew by only 153% in the same

period (both in constant dollars), and population increased only

39%.

Governmental expenditures for domestic purposes grew

steadily during the first half of the twentieth century, approx-

imately doubling their share of the GNP. Then they virtually

exploded. Outlays for domestic services (federal, state, and

local) jumped from 38% of total governmental expenditures in

1952 (or 10.2% of GNP) to 76% in 1978 (or 24.5% of GNP).

Most of the growth occurred in three functional areas: income

support; health and hospitals; and education.

Total governmental expenditures for education increased

from $8.4 billion in 1952 (2.4% of GNP) to $120.8 billion in

1978 (5.7% of GNP). At the federal level, expenditures for

education increased from $326 million in 1952 (0.1% of GNP)

to $12,574 million in 1978 (0.6% of GNP) a 1.470% increase in

constant dollars. At the state and local level, expenditures for

education increased from $8,247 million in 1952 (2.4% of GNP)

to $116,120 million in 1978 (5.5% of GNP), a 473% increase (in

constant dollars) during this period.

Education is America’s largest and most ebullient growth in-

dustry, involving in 1978 thirty percent of our total population,

mostly on a full-time basis — 59 million as students and 6.6

million as employees. Educational institutions in the United

States expend 7.5% of the GNP compared to 4.1% in the Soviet

Union. Similar ratios exist between the United States and

France, West Germany, and England, All of the latter provide

substantial public aid to private education, in contrast to the

Soviet Union, which denies such assistance.

=

In the United States, most education is government-operated,

and about ninety percent of students at the elementary and

secondary level are enrolled at governmental institutions. About

10% of the funds for public education ia the U.S. comes from

the federal government. Education, which is the largest item in

state-local government finance, represented 38.3% of total

state-local expeditures in 1978. Employees in public education

have increased by 250% from 1952 to 1978, and now constitute

about 6.8% of total employment in the U.S. The average cost

of public education has increased 219% in constant dollars, in-

creasing from $301 in 1952 to $2,288 in 1978 and an estimated

$3,000 in 1984.

Since its passage in 1965, the federal Elementary and Secon-

dary Education Act (ESEA) has been supporting educational

projects in about 14,000 school systems, involving 7 to 9 million

children with an aggregate cost exceeding $35 billion.

Statistics in this section are derived from the following

sources: The National Income and Product Accounts of the

United STates, 1929-1974, a supplement to the Survey of Cur-

rent Business, 1977, for 1978 (U.S. Department of Commerce,

Bureau of Economic Analysis); Survey of Current Business, Na-

tional Income Issue, July 1967 - July 1979 (U.S. Department of

Commerce, Bureau of Economic Analysis); Historical Studies

on Governmental Finance and Employment, (U.S. Bureau of

the Census, 1977 Census of Governments, 1979; Raymond W.

Goldsmith, A Study of Savings in the United States (Princeton,

N.J,: Princeton University Press, 1956) 2:427; Statistical

Abstract of the United States 1984, (U.S. Bureau of the Census,

1983); Digest of Education Statistics, 1979, (National Center for

Education Statistics, 1979); Statistical Summary of Education,

1951-52, (U.S. Office of Education, 1955); and The OECD

Observer, March 1979.

C. The high degree of socialization of elementary and secon-

dary education in the United States as well as that of general

socialization requires considerable contact and cooperation bet-

— a

ween government and private, including church-related schools

as well as their students to protect personal rights.

The advanced degree of socialization in the field of elemen-

tary and secondary education in the United States requires that

government maintain cooperative relationships with private in-

stitutions in order to preserve personal freedoms. In virtually

all other areas of governmental activity, except elementary and

secondary education, such cooperative arrangements and con-

tacts between the government and private institutions and in-

dividuals exist, with freedom of the aid recipient an important

consideration.

Continued attempts to deny any form of substantial public

aid to students in non-governmental schools, in spite of advanc-

ing socialization, based solely on considerations of supposed ex-

cessive entanglement between church and state, could result in

the inhibition of important personal freedoms.

It has been urged that the supervision or surveillance required

by the New York application of Title I, minimal as it is, would

constitute excessive entanglement. It has been shown that this is

not the case. Some degree of contact and cooperation between

government and voluntary church-related institutions is re-

quired if progressive socialization of education is not to result in

a total eclipse of personal liberties in this field. Rather than

threaten freedom of religion, such limited contacts prevent its

destruction.

Respectfully submitted,

John J. Donnelly

317 N. 11th Street

Suite 714

St. Louis, Missouri 63101

(314) 241-4041

Attorney for Parents Rights, Inc.

Amicus Curiae