Amicus Curiae Brief — Aguilar v. Felton

Offies Suprome Court, U.S |

FILED

Nos. 84-237, 84-238

84-239 OCT 15 1984

PALEXANEULe i. atsvas !

In the

Supreme Court of the United States

October Term, 1984

Yolanda Aguilar, et al.

Appellants

v.

Betty-Louise Felton, et al.

Appellees

and

Secretary, United States Department

of Education

Appellant

v.

Betty-Louise Felton, et al.

Appellees

and

Chancellor of the Board of Education

of the City of New York, et al.

Appellants

V.

Betty-Louise Felton, et al.

Appellees

On Appeal from the United States Court

of Appeals for the Second Circuit

Brief Amicus Curiae

of Citizens for Educational Freedom

in Support of Appellants

Charles E. Rice

Notre Dame Law School

Notre Dame, IN 46556

(219) 239-5667

Counsel for Amicus Curiae

Rink Riverside Printing, Inc., South Bend, Indiana 46617

TABLE OF CONTENTS

Page(s)

Ne ce ueuseneeen iii

a eu etweswennte Vv

PTET ESET ST IVELERE LEER EEE |

EEE AILS 6 ROOTES SO 3

I. This court consistently has taught that

its establishment clause criteria are

not ‘‘tests’’ but guidelines....................... 3

II. The entanglement criterion is not a per

se test, but rather merely provides a

perspective on the totality of the

ERE a 6

A. The Lower Court’s Caricature Of Meek Produced

A Rigid And Impermissible Per Se Rule........... 7

B. Even The Entanglement Criterion Itself

EES 10

C. For Establishment Clause Purposes,

Governmental Actions Which Potentially Inhibit

Religion Should Be Distinguished From Those

Which Potentially Advance Religion............ 14

1. Inhibition of religion infringes, if anything,

the Free Exercise Clause, not the

Establishment Clause...................... 14

2. Taxpayer plaintiffs lack standing to raise

nonpublic schools’ potential free exercise

(ER EAR Sa Re a Pree ee 15

III. New York City’s Title I program has

not tended to establish religion .................. 16

A. Appellees Have Failed To Prove That

The Program Establishes Religion.............. 16

B. The Lemon Criteria Illustrate That

New York’s Program Does Not

ING. casi eavucecacccduccuaaue 18

1. The program has a secular purpose........... 18

2. The program’s primary effect is to benefit

GD ko ck cdcncecsvenadaeeee 19

3. The program is not excessively entangling... . . 20

GGRIBOE «ac cnc nccivsccnctedncuennen ae 21

ii

TABLE OF AUTHORITIES

Cases: Page(s)

Bradfield v. Roberts, 175 U.S. 291 (1899) .............. ll

Committee for Public Education & Religious

Liberty v. Nyquist, 413 U.S. 756 (1973) .............. 12

Flast v. Cohen, 392 U.S. 83 (1968) .................... 15

Hunt v. McNair, 413 U.S. 734 (1973) - Ee 4,19

Larkin v. Grendel’s Den, Inc., 459 U.S. 116 (1982) ...... ll

Lemon v. Kurtzman, 403 U.S. 602 (1971) ..... 4,7,10,11,12

Lynch v. Donnelly, 1048. Ct. 1355 (1984)... 22... 3,4,7,10,

17,19,20

Marsh v. Chambers, 103 8. Ct. 3330 (1983) .............. 6

McGowan v. Maryland, 366 U.S. 420 (1961) ............ 15

Meek v. Pittenger, 421 U.S. 349 (1975)... 2... eee 3

Mueller v. Allen, 1038. Ct. 3062 (1983) ............. 19,20

National Coalition for Public Education and

Liberty (PEARL) v. Harris, 4.) F. Supp. 1248,

(S.D. N.Y. 1980) appeal dismissed for want

of jurisdiction, 449 U.S. 808 (1980) ......... 16,17,18,19

Pierce v. Society of Sisters, 268 U.S. 510 (1925) ......... 12

Roemer v. Board of Public Works, 426 U.S. 736 (1976) .... 4

School Dist. of Abington Township v. Schempp,

EEE ELEN SET ETT TET ll

Tilton v. Richardson, 403 U.S. 672 (1971) ............. 4.5

Valley Forge Christian College v. Americans United

for Separation of Church and State, 454 U.S. 464

IEEE TT 15

Walz v. Tax Commission, 397 U.S. 664 (1970) ........ 3,20

iil

Wheeler v. Barrera, 417 U.S. 402 (1974) ........ 6,17,18,19

Widmar v. Vincent, 454 U.S. 263 (1981) ............... 19

Wolman v. Walter, 433 U.S. 229 (1977)................ 13

Zorach v. Clausen, 343 U.S. 306 (1948) ................ 11

Felton v. Secretary, United States Department

of Education, 739 F.2d 48 (2d Cir. 1984) ..... 6,7,8,10,14,

17,18,19

Committee for Public Education & Religious

Liberty v. Levitt, 342 F. Supp. 439 (S.D. N.Y. 1972) ..... S

Constitution and Statutes

U.S. Const:

Amend. |

oc ccenaesensaseienses passim

Elementary and Secondary Education Act of 1965,

Pub. L. No. 89-10, Tit. I, 79 Stat. 27, 20

U.S.C. § 2701 ef seg. (1982) .... 0... 0c ece eee eee ees 18

20 U.S.C. $3801 (1962) ..............c cece cece ees 18

Other Authorities

Note, The United States Military Chaplaincy Program:

Another Seam In the Fabric of Our Society?,

59 Notre Dame L. Rev. 181 (1983) ................--. ll

Statistical Abstract of the United States: 1984,

(U.S. Bureau of the Census, 104th ed. 1983)............ 4

iv

INTEREST OF THE AMICUS

Citizens for Educational Freedom (‘‘CEF’’) is an organiza-

tion composed entirely of individual citizens, including parents

of students in public and nonpublic schools, both secular and

religious. CEF is not dedicated to any one religious belief, nor

indeed to religion over nonreligion. It is a pluralistic organiza-

tion dedicated to upholding the educational rights of parents

and children. It is firmly committed to the belief that the edu-

cation of children is primarily a matter of family and personal

concern. Accordingly, CEF works through the legislative and

judicial processes, as weH as through public information

programs, to support and advocate freedom of educational

choice, diversity of education, and above all quality education

for all children.

Consequently, amicus is concerned about the practical impli-

cations of the lower court’s reasoning. CEF wishes to call this

Court's attention to portions of the lower court’s analysis which

threaten a broad spectrum of legislative alternatives for

assisting underprivileged children nationwide in a wide variety

of nonpublic schools. It is not our intention to insist that all

such legislative alternatives are necessarily constitutional. Our

point is far more modest: Many of them may well be constitu-

tional. Their possibilities should not be extinguished pre-

maturely by the appellate court’s less-than-subtle constitutional

analysis.

Since CEF is concerned primarily with the broad implica-

tions of the lower court’s reasoning, rather than just the

particular program at issue, it does not believe its interest will

be represented adequately by the parties.

SUMMARY OF ARGUMENT

This Court consistently has taught that Establishment Clause

analysis admits of no per se rules. Rather, its criteria are

guidelines for use in determining whether the challenged

conduct tends to establish religion.

In spite of this Court’s teaching, the court below erroneously

has made a per se test of this Court’s entanglement criterion.

Furthermore, the court below has sought to implement its per

se ‘‘test’’ with yet another per se rule: no public school teach-

ers may ever teach nonpublic school children on nonpublic

school premises, regardless of the circumstances.

These rigid per se rules do violence to the logic both of the

entanglement criterion and the Establishment Clause itself.

They also threaten to preempt a broad range of legislative

options for serving disadvantaged nonpublic school children. A

rigid per se rule should not be employed with respect to on-

premises instruction of nonpublic school students by public

school teachers. Rather each case should be decided on its

facts.

The entanglement criterion is itself not a per se rule, and

cannot be so applied. Deciding the question of entanglement

involves judging the propriety of the church-state relationship

in question. That propriety is itself the ultimate issue. There-

fore, to attempt to decide establishment solely on the criterion

of ‘‘entanglement’’ would be ciicular. The entanglement cri-

terion is better viewed as simply providing a valuable

perspective on the totality of the circumstances.

For purposes of Establishment Clause analysis, those govern-

mental actions which potentially inhibit religion should be

distinguished from those which potentially advance religion.

Inhibition is by definition not establishment, but the opposite

of establishment. If anything, inhibition is an abridgement of

free exercise. Consequently, taxpayer plaintiffs lack standing

to raise the issue of government inhibition of religion in non-

public schools, since taxpayer standing cannot be predicated

upon the free exercise rights of third parties. The dilemma

posed by appellees — i.e., that either the Title J teachers risk

advancing religion or their supervisors inhibit it — is therefore

illusory.

The record in this case, viewed either on the totality of the

circumstances, or against the Lemon criteria, demonstrates

that New York’s Title I program has not established religion.

I. THIS COURT CONSISTENTLY HAS

TAUGHT THAT ITS ESTABLISH-

MENT CLAUSE CRITERIA ARE NOT

“TESTS,” BUT GUIDELINES.

In framing its Establishment Clause doctrine, this Court has

repeatedly emphasized that ‘‘[i]n each case, the inquiry calls

for line drawing; no fixed, per se rule can be framed.’’ Lynch

v. Donnelly, 104 S. Ct. 1355, 1361 (1984).' Thus, the Court

has refused to invalidate mechanically every governmental

action which benefits religion. /d. Instead,

the Court has scrutinized challenged legislation or

official conduct to determine whether, in reality, it

establishes a religion or religious faith, or tends to

do so. Id. (emphasis supplied; citation omitted).

To be sure, the Court has developed useful criteria to aid it

in this determination. At the same time, however, the Court

has emphasized that the utility of these criteria must be kept

in perspective. The criteria ‘‘must not be viewed as setting the

precise limits to the necessary constitutional inquiry, but serve

only as guidelines with which to identify instances in which

the objectives of the Establishment Clause have been im-

paired.’’ Meek v. Pittenger, 421 U.S. 349, 358-59 (1975)

(emphasis supplied; citation omitted). This is true of the

‘principal evils’’ identified in Walz. The Court has noted

'Cf. Walz v. Tax Commission, 397 U.S. 664, 669 (1970) (‘‘rigidity could

well defeat the basic purpose [of the Religion Clauses]’’).

2].e., ‘‘sponsorship, financial support, and active involvement of the

sovereign in religious activity."’ Walz, supra, 397 U.S. at 668.

3

that their presence cannot be measured with any ‘‘constitu-

tional caliper.’’ See Tilton v. Richardson, 403 U.S. 672, 677

(1971). It is likewise true of the three criteria collected in

Lemon v. Kurtzman, 403 U.S. 602, 612 (1971). The Court has

recently reminded us that it is unwilling ‘‘to be confined to

any single test em criterion in this sensitive area. (citations

omitted) In fact, on occasion, the Court has not even applied

the Lemon ‘test.’ ’’ Lynch, supra, 104 S. Ct. at 1362.

Accordingly, when the Court has chosen to use the Lemon

criteria, it has called for circumspection. This is especially

true in its use of the entanglement criterion:

Judicial caveats against entanglement must recognize

that the line of separation, far from being a ‘‘wall,’’ is

a blurred, indistinct and variable barrier depending on

all the circumstances of a particular relationship.

Lemon, supra, 403 U.S. at 614 (emphasis supplied).‘

In sum, this Court has taught that the ultimate inquiry is

‘‘whether, in reality, [the challenged conduct] establishes a

religion or religious faith or tends to do so.’’ Lynch, supra,

104 S. Ct. at 1361. Comparing the conduct to the ‘‘principal

evils’ isolated in Walz and to the three criteria set forth in

“There is no single constitutional caliper that can be used to measure the

precise degree to which any of these three factors are present or absent.’

Tilton v. Richardsex, 403 U.S. 672, 677 (1971).

‘See also, Roemer v. Board of Public Works, 426 U.S. 736, 766 (1976)

(there is ‘‘no exact science in gauging the entanglement of Church and

State’’); Hunt v. McNair, 413 U.S. 734, 746 (1973) (‘‘the degree of en-

tanglement arising from inspection of facilities . . . varies in large measure

with the extent to which religion permeates the institution’’); Tilton,

supra, 403 U.S. at 685 (various factors can ‘‘substantially diminish the

extent and the potential danger of the entanglement’’).

4

Lemon may well be helpful in discerning the answer. But,

[t]here are always risks in treating criteria discussed

by the Court from time to time as ‘‘tests’’ in any limit-

ing sense of that term. Constitutional adjudication

does not lend itself to the absolutes of the physical

sciences or mathematics. The standards should rather

be viewed as guidelines with which to identify

instances in which the objectives of the Religion

Clauses have been impaired. Tilton, supra, 403 U.S.

at 678 (emphasis supplied).

ur

II. THE ENTANGLEMENT CRITERION

IS NOT A PER SE TEST, BUT RATHER

MERELY PROVIDES A PERSPEC-

TIVE ON THE TOTALITY OF THE

CIRCUMSTANCES.

Contrary to this Court’s teaching, the lower court read the

Lemon criteria as three per se rules, or ‘‘tests.’’ See Felton v.

Secretary, United States Department of Education, 739 F.2d

48, 65 (2d Cir. 1984). The lower court further believed that

the entanglement ‘‘test’’ included yet another per se rule,

derived from Meek. See /d., at 64. But subtle values are not

well served by such dogmatic rigidity. It is no doubt true that

‘‘if any group of law students were asked to apply the princi-

ples of Lemon to the question of legislative prayer, they would

nearly unanimously find the practice to be unconstitutional.’’

Marsh v. Chambers, 103 S. Ct. 3330, 3340 (1983) (Brennan,

J., dissenting) (footnote omitted). But they would be mistaken.

Questions of educational policy provide a similar temptation.

Rigid dogma is comforting. Yet, as with legislative prayer,

[t]he task of deciding when the Establishment Clause

is implicated in the context of parochial school aid has

proved to be a delicate one for the Court. Usually it

requires a careful evaluation of the facts of the parti-

cular case. Wheeler v. Barrera, 417 U.S. 402, 426

(1974) (citations omitted; emphasis supplied).

A. The Lower Court’s Caricature of Meek Produced

a Rigid and Impermissible Per Se Rule

Lynch teaches that in Establishment Clause analysis ‘‘no

fixed, per se rule can be framed.’’ Lynch, supra, at 1361.

However, the Court below, ignoring Lynch,° found that there

was a per se rule — i.e., that public school employees could

never teach or counsel on nonpublic school premises regardless

of the circumstances. The lower court writes,

whatever the situation may be with respect to other

forms of government aid, no part of the teaching or

counselling function can be performed by public school

employees [on nonpublic school premises], whether

under a good plan, a bad plan, or no plan at all.

Felton, supra, 739 F.2d at 67 (emphasis supplied).

This is a bald, per se rule. The facts of particular cases are

deemed irrelevant. Indeed, in order to pronounce its per se rule,

the Court of Appeals deliberately disregarded an extensive trial

record which showed, inter alia, no evidence of a ‘‘complaint

by a Title I teacher of interference by nonpublic school author-

ities or of any reports by supervisors that teachers have engaged

in religious activity.’’ Felton, supra, 739 F.2d at 53. The

record notwithstanding, the court below concluded that if the

supervisors had been effective, then there must have been,

such ‘‘comprehensive, discriminating and continuing state

surveillance’’® as to be per se unconstitutional. See Felton,

‘In fact, the Court below deliberately ‘‘confined itself’’ to this Court’s prior

decisions on government aid to religious schools. See Felton, supra, 739

F.2d at 54. In so doing, it effectively ignored this Court’s subsequent teach-

ing on Establishment Clause analysis generally.

*Se. Lemon, supra, 403 U.S. at 619.

-

(

supra, 739 F.2d at 64.

The Court below thus has promulgated not only a per se rule,

but a Catch-22. In nonpublic schools, if public school teachers

are not violating Lemon’s primary effect criterion, then their

supervisors must be violating Lemon's entanglement criterion,

regardless of the evidence. Under this per se rule, no conceiv-

able program of on-premises instruction of nonpublic school

students by public school employers could ever be constitu-

tional. This is a dangerous misreading of Meek. What in Meek

was a guideline for discerning potential establishment, has

mutated into a per se rule which conclusively presumes

establishment in every conceivable case.’

The lower court’s per se rule further presumes that all non-

public school settings are alike. Of course, all nonpublic school

environments are not alike. There are, for instance, significant

differences between Catholic and other nonpublic schools.

Moreover, there are now significant differences between the

environment that actually exists in many Catholic school

systems, and that presupposed by the court below. The lower

court adopted a 1972 characterization of Catholic schools.* In

This seems to have been an affirmative policy decision by the court below.

‘To relax Meek’s ban on sending public school teachers and counsellors

into religious schools . . ., on the basis of a demonstration that this has not

advanced religion in New York City Schools, would let the genie out of the

bottle.’’ Felton, supra, 739 F.2d at 67. What genie? The purpose of this

litigation is to determine whether this program has tended to establish

religion. If it has not, it should not be struck down in order to further the

Second Circuit’s policy of discouraging similar programs not before the

court.

‘This list of characteristics was borrowed from Meek, and ultimately from

Committee for Public Education and Religious Liberty v. Levitt, 342 F.

Supp. 439, 440-41 (S.D. N.Y. 1972). It is thus twelve years old.

8

fact, much has changed in the past twelve years.°

It is not the purpose of this brief to argue that it is constitu-

tionally permissible to send public school teachers into all of the

varied nonpublic school systems nationwide. Our point is far

simpler: It may well be constitutionally permissible in a number

of cases. The lower court’s per se rule should not be allowed to

preempt that possibility.

*For instance, as the chart below demonstrates, the proportion of religious

and lay teachers has been dramatically reversed nationally.

ITEM UNIT 1960 «1965 1970 1975 I877 1978 1979 1980 ION] 1982

Elementary schools Number 10.50] 10.879 9.362 8.340 8.204 8.158 8.100 8.04% 7.996 7.950

Pupils enrolled 1.0m) 4.573 4.492 3.955 2.525 2.421 2,965 2.293 2.268 22266 2.225

Teachers, total 1.000 108 120 12 au mM ay wey a7 4

Religious 1m) 7 7h 42 5 i ed 29 i 4

Lay 1.000 29 v4 nw) 4 6x nl 71 73

Secondary schools Number 2.992 2.419 1.981 1.659 1.599 1.564 1.540 1.516 1.498 1.482

Pupils enrolled 1.000 xx) 61.082) «1 008 xo) NAT AS 4600 ONT R2N xt]

Teachers, total 1.000 44 57 BS uw Al 49 49 49 49 Tr)

Religious 1.000 Bs a) 28 20 Ix 16 15 4 4 1

Lay 1.000 Il 19 26 Bi) ” + 44 8 Bi) 6

Source: National Catholic Educational Association, Washington, D.C., A

Statistical Report on Catholic Elementary and Secondary Schools for the

Years 1967-68 to 1969-70, and U.S. Catholic Schools, 1973-74, and

National Catholic Educational Association/Ganley’s, Catholic Schools in

America, annual. Published in, Statistical Abstract of the United States:

1984, at 156 (U.S. Bureau of the Census, 104th ed. 1983).

9

B. Even The Entanglement Criterion Itself

Is Not A Per Se Rule

Even apart from:its misreading of Meek, the court below er-

roneously believed that the entanglement criterion was itself a

per se rule. In fact, the court explicitly based its decision solely

on ‘‘the entanglement test . . . without need to decide whether

New York City’s program fails Lemon’s ‘primary effect’ test.’’

Felton, supra, 739 F.2d at 65. Moreover, the court below even

dismissed a number of arguments merely because ‘‘they bear

on the question of ‘primary effect,’ not on the entanglement

issue... .’’ /d., at 70.

Once again, this disregards the constant teaching of this Court

that Establishment Clause analysis admits of no per se rules. See

Lynch, supra. Beyond that, however, amicus respectfully sug-

gests that the very nature of the entanglement criterion

prevents its use as a per se rule.

It is axiomatic that not every relationship between govern-

ment and religion is an excessive entangfement.'® Some rela-

tionship is inevitable.'! Other relationships are required by the

government's affirmative duty to accommodate religion.'* In-

deed, even some collaboration between government and

“Cf. Lynch, supra, 104 §. Ct. at 1361. (‘‘Rather than mechanically in-

validating all governmental conduct . . . that . . . give[s] special recognition

to religion . . . . the Court has scrutinized challenged legislation or official

conduct to determine whether, in reality, it establishes a religion or

religious faith, or tends to do so."’)

'\See, Lemon v. Kurtzmann, 403 U.S. 602, 614 (1971).

Cf. Lynch, supra, 104 §. Ct. at 1359.

10

religiously-run institutions is salutary and in ‘‘the best of our

traditions.’’!%

Moreover, which relationships between government and

religion are benign, and which are excessive entanglements,

cannot reliably be determined merely from the extent of mutual

contact. The military Chaplains’ Corps involves a far greater

number and complexity of contacts between church and state

than did the zoning regulation in Larkin v. Grendel’s Den,

Inc., 459 U.S. 116, 126-27 (1982). Yet the chaplaincy program

is almost certainly constitutional.'* The zoning regulation in

Larkin was not. It ‘‘enmesh{ed] churches in the exercise of

substantial governmental powers’’ and was therefore an

establishment of religion. /d., at 126.

Thus, whether a given relationship is excessively entangling

depends not upon the extent of the relationship but upon the

propriety of the relationship.'® However, the propriety of the

'8See Zorach v. Clausen, 343 U.S. 306, 313-14 (1948) (‘‘When the state

. . » Cooperates with religious authorities by adjusting the schedule of

public events to sectarian needs, it follows the best of our traditions.’’) Cf.

Bradfield v. Roberts, 175 U.S. 291 (1899) (government support of hospital

run by Roman Catholic nuns is not an establishment of religion).

'4In fact, it may be constitutionally required. Cf. School Dist. of Abington

Township v. Schempp, 374 U.S. 203, 296-297 (1963) (Brennan, J., con-

curring); /d., at 309 (Stewart, J., dissenting); /d., at 306 (Goldberg, J.

concurring). See generally, Note, The United States Military Chaplaincy

Program: Another Seam In the Fabric of Our Society?, 59 Notre Dame L.

Rev. 181 (1983).

'8Cf. Lemon, supra, 403 U.S. at 615 (question of entanglement turns upon

‘the character and purposes of the institutions that are benefitted; the

nature of the aid that the State provides, and the relationship between the

government and the religious authority’’).

1]

relationship is itself the ultimate issue — i.e., whether the

relationship is one which tends to establish religion.

Accordingly, any attempt to decide the question of establish-

ment solely on an entanglement ‘‘test’’ would be quite circular.

In practice, such determinations probably would degenerate

into either ad hoc evaluations or, as in the case of the court

below, further per se rules.

This is not to say that the entanglement criterion is simply a

makeweight. It is not. Rather, it provides a valuable perspective

on the totality of the circumstances. As the Court noted in

Lemon, ‘‘involvement or entanglement between government

and religion serves as a warning signal [in advance of] where

the ‘verge’ of the precipice lies.’’ Lemon, supra, 403 U.S. at

§24-25.'* A high degree of involvement may alert the court to

the need for a heightened degree of scrutiny. It is a helpful clue

in the Court’s investigation. Thus the entanglement criterion

provides a valuable perspective. It cannot, however, provide a

litmus test.

Furthermore, while entanglement is a helpful warning signal

that one is approaching the verge, it is not necessarily a sign

that one is at the verge. There may yet be space.

True, brinksmanship is hardly a policy of choice. Nonethe-

less, it is often a practical necessity as legislatures seek to reach

the important objective of providing an adequate education to

disadvantaged children, while still respecting the parental right

to educate. See Pierce v. Society of Sisters, 268 U.S. 510

(1925). In many cases the distance between a ‘‘warning signal’’

and ‘‘the verge’’ could well represent an important educational

'6Cf. Committee for Public Education & Religious Liberty v. Nyquist, 413

U.S. 756, 797-98 (1973) (political divisiveness, while alone not enough to

invalidate a statute, is nonetheless a ‘‘warning signal’’).

12

opportunity for a significant number of children. This is a pos-

sibility which should not be foreclosed to all legislatures merely

because of speculation as to possible future difficulties.

At this point in the 20th century we are quite far re-

moved from the dangers that prompted the framers to

include the Establishment Clause in the Bill of

Rights. . . . The risk of significant religious or

denominational control over our democratic processes

— or even of deep political division along religious

lines — is remote, and when viewed against the

positive contributions of sectarian schools, any such

risk seems entirely tolerable in light of the contin-

uing oversight of this Court. Wolman v. Walter, 433

U.S. 229, 263 (1977) (Powell, J., concurring in part,

concurring in the judgment in part, and dissenting in

part) (emphasis supplied).

13

C. For Establishment Clause Purposes,

Governmental Actions Which Potentially Inhibit

Religion Should be Distinguished From Those

Which Potentially Advance Religion

1. INHIBITION OF RELIGION INFRINGES,

IF ANYTHING, THE FREE EXERCISE CLAUSE,

NOT THE ESTABLISHMENT CLAUSE.

Inhibition is by definition not establishment; it is rather the

opposite of establishment. Yet, paradoxically, the court below

predicated its finding of establishment upon inhibition. The

court proposed a dilemma: in order for the state to guard

against the risk of its teachers inadvertently advancing

religion in nonpublic schools, the state will have to undertake

an overbearing surveillance of those schools. This surveillance

is the entanglement which the court fears. It features ‘‘state

inspectors prowling the halls of parochial schools and auditing

classroom instruction.’’ Felton, supra, 739 F.2d at 67

(citation omitted).

But such surveillance would hardly establish that school’s

religion. The very purpose of the surveillance would be to pre-

vent religion from infecting state-supplied remedial instruc-

tion. Consequently, if that surveillance is affecting religion at

all, it is inhibiting it. Such inhibiting surveillance may abridge

the free exercise of religion'’ but it most certainly does not

establish religion.

‘It also may not offend the Free Exercise Clause, depending on the amount

of intrusion necessary. The record in this case shows that effective super-

vision required only monthly audits of public school classes by public school

supervisors. See, Felton, supra, 739 F.2d at 53.

14

2. TAXPAYER PLAINTIFFS LACK STANDING

TO RAISE NONPUBLIC SCHOOLS’ POTENTIAL

FREE EXERCISE CLAIMS.

The spectre of ‘‘state inspectors prowling the halls of

parochial schools’’ suppressing religion is certainly ominous.

Nevertheless, it is ominous not to taxpayers, but to those

whose religious freedom is thereby threatened. '*

Interested would-be plaintiffs cannot acquire standing by

virtue of some ‘‘shared individuated right to a government’

that does not prohibit the free exercise of religion. See Valley

Forge Christian College v. Americans United for Separation

of Church and State, 454 U.S. 464, 482 (1982). Article III

requires a real or threatened injury. /d., at 472. In fact, in

McGowan v. Maryland, 366 U.S. 420 (1961), the Court re-

jected an attempt by plaintiffs to raise the free exercise rights

of third parties. In that case, the Court held that appellants

lacked standing because they

alleged] only economic injury to themselves; they

[did] not allege any infringement of their own

religious freedom due to Sunday closing... .

McGowan, supra, 366 U.S. at 429 (emphasis

supplied).

So too here. Plaintiff's anxiety for the free exercise rights of

nonpublic schools is misplaced. Individual nonpublic schools

are free to refuse any or all government aid which they feel is

intrusive. In any event, both nonpubli¢ schools and their

students are certainly capable of enforci ing their own free

exercise rights. |

'*Flast v. Cohen, 392 U.S. 83, 104 n. 25 (1968), expressly declined to

decide whether an assertion of the free exercise claims of third parties

would be sufficient to confer taxpayer standing.

15

Accordingly, plaintiffs such as appellees should not be per-

mitted to urge their dilemma: i.e., that in order to prevent

public school teachers from advancing religion in nonpublic

schools, their supervisors must inhibit it. Taxpayer plaintiffs,

consistent with Flast and Valley Forge, should be permitted to

complain only of possible establishment of religion. Conse-

quently, they should be required to bear their burden of proof

on that issue without the prop of a potential establishment-

free exercise ‘‘dilemma.’’

III. NEW YORK CITY’S TITLE I

PROGRAM HAS NOT TENDED TO

ESTABLISH RELIGION.

Once the lower court’s erroneous per se rules have been

cleared away, the totality of the circumstances becomes

obvious. The New York program has not established religion.

A. Appellees Have Failed To Prove That

The Program Establishes Religion

At the outset of the evidentiary hearing in National Coali-

tion for Public Education & Religious Liberty v. Harris, 489

F. Supp. 1248 (S.D. N.Y. 1980), appeal dismissed for want of

jurisdiction, 449 U.S. 808 (1980) (hereinafter, PEARL), the

plaintiffs conceded that they ‘‘had no evidence that New York

City’s Title | program was unconstitutional. ‘‘/d., at 1252

(emphasis added). Since the record was overwhelmingly con-

trary to their position, plaintiffs had no choice but to concede

this point. Nor do Appellees have any other choice.

The lower court noted that in the sixteen year history of

New York's Title I program, there is no record of any

16

‘complaint by a Title I teacher of interference by nonpublic

school authorities or of any reports by supervisors that

teachers have engaged in religious activity.’’ Felton, supra,

739 F.2d at 53. Indeed, the record affirmatively shows that

‘‘parochial school officials have no voice in the initial assign-

ment of a Title I teacher.’’ PEARL, supra, 489 F. Supp. at

1256. Title I teachers are carefully instructed that they are

accountable only to Title I supervisors, not to nonpublic school

officials. Felton, supra, 739 F.2d at 53. Title I teachers

similarly are ordered not to become involved with a nonpublic

school’s religious activities, not to introduce any ‘‘religious

matter’ into their teaching, and not to discuss religious

matters with nonpublic school teachers. Jd. Title I teaching

materiais and equipment are

labeled as property of the Board . . . are locked in

storage and filing cabinets when not in use and are

subject to an annual inventory. /d.

Finally, Title I classrooms are required to be ‘‘free of religious

symbols and artifacts.’’ Jd.

‘‘A federal court does not sit to render a decision on hypo-

thetical facts... .’’ Wheeler v. Barrera, 417 U.S. 402, 427

(1974). Here, the record is unequivocal that New York’s Title |

program has not ‘‘in reality . . . establish{ed] a religion or

religious faith, or tend[ed] to do so.’’ Lynch, supra, 104 S. Ct.

at 1361. In fact, it has not even come close.

Appellees simply have failed to prove their case.

17

B. The Lemon Criteria Illustrate That New York’s

Program Does Not Establish Religion

Viewed as guidelines, and not per se rules, the Lemon

criteria demonstrate that the New York Program does not

establish religion.

1. THE PROGRAM HAS A SECULAR PURPOSE.

Ths purpose of Title | is not in doubt. The statute itself gives

its purpose as assisting

local educational agencies to expand and improve their

educational programs by various means . . . which

contribute particularly to meeting the special educa-

tional needs of educationally deprived children. 20

U.S.C. § 2701 (1982). See also 20 U.S.C. § 3801

(1982).

Accordingly, the PEARL court easily determined ‘‘that the

purpose of the statute was to give aid to needy children,

regardless of where they attend school.’’ PEARL, supra, 489

F. Supp. at 1258. Cf. Wheeler v. Barrera, supra, 417 U.S. at

405-406 (‘‘the legislative aim [of Title I] was to promote

needed assistance to educationally deprived children, rather

than to specific schools . . . .’’) (emphasis in original;

footnotes omitted).

18

2. THE PROGRAM’S PRIMARY EFFECT IS TO

BENEFIT CHILDREN.

Title I does not provide any assistance directly to nonpublic

schools. Rather, Title I bestows its aid — remedial instruction

— directly on disadvantaged children. Consequently, as the

PEARL court noted, ‘‘Title I clearly adheres to the child

benefit principle established in Everson and Allen.’’ PEARL,

supra, 489 F. Supp. at 1259.

Moreover, Title I provides its benefit to a broad class of dis-

advantaged children. In Mueller v. Allen, 103 S. Ct. 3062,

3068 (1983), this Court found it significant that the tax

deduction at issue was ‘‘available for educational expenses in-

curred by all parents, including those whose children attend

non-sectarian private schools or sectarian private schools.’’!®

In the present case nonpublic school students are a distinct

minority among all Title I beneficiaries. In 1981-82, nonpublic

school students were only 13.2% of the total number of bene-

fitted students. See Felton, supra, 739 F.2d at 51.

It is probably true that some incidental benefit accrues to

the nonpublic schools. But ‘‘not every law that confers an

‘indirect,’ ‘remote,’ or ‘incidental’ benefit upon [religion] is,

for that reason alone, constitutionally invalid.’’ Lynch,

supra, 1048. Ct. at 1364, quoting Nyquist, supra, 413 U.S.

at 771. Cf. Hunt v. McNair, supra, 413 U.S. at 743 (rejecting

argument that aid to one aspect of an institution frees it to ex-

pend resources on religious ends). The direct beneficiaries are

clearly the disadvantaged children, in both public and non-

public schools, who now have the opportunity for remedial

help.

\9Cf. Widmar v. Vincent, 454 U.S. 263, 274 (1981) (‘‘the provision of

benefits to so broad a spectrum of groups is an important index of secular

effect’’)

19

3. THE PROGRAM IS NOT EXCESSIVELY

ENTANGLING.

There is no evidence whatever that New York’s Title |

program has in any way occasioned ‘‘the active involvement of

the sovereign in religious activity.’’ See Walz, supra, 397

U.S. at 668. Monthly visits to public school classes by public

school supervisors, for the express purpose of preventing the

accidental advancement of religion, is simply not an establish-

ment of religion. If it were an overbearing surveillance of the

nonpublic schools themselves, then it might be an inhibition

of religion. But government supervisors supervising only

government-sponsored classes, with monthly visits, are hardly

overbearing. In any event, potential inhibition of religion is

not an establishment of religion.*°

Thus the totality of the circumstances, viewed with or with-

out the Lemon criteria, plainly demonstrates that New York

City’s Title I program has not tended to establish religion.

“This Court also has been concerned about the potential for political en-

tanglement. Since this case is not an instance of direct subsidy to nonpublic

schools, political entanglement is not an issue. See Lynch, supra, 104 S.

Ct. at 1364-65; Mueller, supra, 103 8. Ct. at 3071, n. 11.

20

——— eo

CONCLUSION

For the foregoing reasons, the judgment of the Court of

Appeals for the Second Circuit should be reversed.

Respectfully submitted,

Charles E. Rice

Notre Dame Law School

Notre Dame, IN 46556

(219) 239-5667

Counsel for Citizens for

Educational Freedom