Amicus Curiae Brief — Board of Education of Monroe-Woodbury Central School District v. Grumet

Sup ust, a

(a D — ) r{ LED

Nos. 93-517, 93-527, en | FEB 2 2 1994

IN THE

SUPREME COURT OF THE UNI

i OFFICE Us ink CLARK

October Term 1993

Boarp or EpucaTION or THE Kiryas Jogi

Vittace Scoot District, Boarp oF

EDUCATION OF THE Monroe-Woopsury

Centra Scuoor District, and ATToRNEY

GENERAL OF THE STATE OF New York,

Petitioners,

Vv.

Louis Grumer AND ALBert W. Hawk,

Respondents.

On Writ of Certiorari to the

New York Court of Appeals

BRIEF OF NATIONAL COUNCIL OF CHURCHES

OF CHRIST IN THE U.S.A. AND

JAMES E. ANDREWS AS STATED CLERK OF THE

GENERAL ASSEMBLY OF THE

PRESBYTERIAN CHURCH (U.S.A.) AS AMICI

CURIAE IN SUPPORT OF RESPONDENTS

Douglas Laycock

Counsel of Record

727 E. 26th St.

Austin, TX 78705

$12-471-3275

Table of Contents

Table of Authorities “ii

Cases il

Constitutional Provisions iii

Secondary Authority iv

Interest of the Amici |

Summary of Argument 3

Argument 5

II.

III.

Creation of the Kiryas Joel Village School

District Was Unconstitutional Because It

Deliberately Combined Religious and

Governmental Power. 5

Affirmance Here Would Not Preclude

Accommodation of the Needs of the Disabled

Children of Kiryas Joel. 5

The Schempp-Lemon Test and the Endorsement

Test Are Sound in Principle. They Would Be

Improved by Clarifying Their Details. 6

A. The Schempp-Lemon Test 7

B. The Endorsement Test 13

Conclusion 16

Table of Authorities

Cases

Abington School District v. Schempp,

374 U.S. 203 (1963) 3, 6-7, 11-13, 16

Board of Education v. Mergens,

496 U.S. 226 (1990)

Bowen v. Kendrick,

487 U.S. 589 (1988)

Bradfield v. Roberts,

175 U.S. 291 (1899)

Corporation of the Presiding Bishop v. Amos,

483 U.S. 327 (1987)

County of Allegheny v. ACLU,

492 U.S. 573 (1989)

Edwards v. Aguillard,

482 U.S. 578 (1987)

Employment Division v. Smith

494 U.S. 872 (1990)

Griffin v. County School Board of Prince Edward

County, 377 U.S. 218 (1964)

Grumet v. Board of Education,

618 N.E.2d 94 (N.Y. 1993)

Lamb's Chapel v. Center Moriches Union Free

School District, 113 S. Ct. 2141 (1993)

ii

12

12, 16

12

12

13

13

12

11

12

Lee v. Weisman, |

112 S. Ct. 2649 (1992) 13

Lemon v. Kurtzman,

403 U.S. 602 (1971) 3-4, 6-7, 11-13, 16

Lynch v. Donnelly,

465 U.S. 668 (1984) 13

School District of Grand Rapids v. Ball,

473 U.S. 373 (1985) 15-16

Wallace v. Jaffree,

472 U.S. 38 (1985) 13-14

Widmar v. Vincent,

454 U.S. 263 (1981) 12

Witters v. Washington Dept. of Services for the Blind,

474 U.S. 481 (1986) 12

Zobrest v. Catalina Foothills School District,

113 S. Ct. 2462 (1993) 12

Constitutional Provisions

U.S. Const., amend. I,

Establishment Clause 1, 3, 5, 13

U.S. Const., amend. I,

Religion Clauses, jointly 10, 14

iil

Secondary Authority

Douglas Laycock, Formal, Substantive, and

Disaggregated Neutrality Toward Religion,

39 DePaul L. Rev. 993 (1990) 8, 10

Michael W. McConnell & Richard A. Posner,

An Economic Approach to Issues of Religious

Freedom, 56 U. Chi. L. Rev. 1 (1989) 10

Presbyterian Church (U.S.A.), God Alone Is Lord of

the Conscience (1988) 1-2

iv

INTEREST OF THE AMICI

The National Council of Churches of Christ in the

U.S.A. is a community of thirty-two Protestant and

Eastern Orthodox communions having an aggregate

membership in the United States of over forty million. Its

positions on public issues are taken on the basis of

policies developed by its General Board, composed of

some two hundred and fifty members selected by its

member communions in proportion to their size and

support of the Council. This brief implements the

Council's longstanding commitment to separation of

religious and political authority and to protecting religious

liberty from burdensome or discriminatory regulation.

James E. Andrews, as Stated Clerk of the General

Assembly, is the senior continuing officer of the highest

governing body of the Presbyterian Church (U.S.A.). The

Presbyterian Church (U.S.A.) is a national Christian

denomination with approximately 2,856,713 members in

11,500 congregations organized into 171 presbyteries

under the jurisdiction of 16 synods. Through its

antecedent religious bodies, it has existed as an organized

religious denomination within the current boundaries of

the United States since 1706.

This brief is consistent with the policies adopted by

the General Assembly regarding the Establishment Clause

of the First Amendment. The 200th General Assembly of

the Presbyterian Church (U.S.A.) addressed these issues

in 1988: "We reject and oppose any attempts on the part

of the church to exercise political authority .. .”

Presbyterian Church (U.S.A.), God Alone Is Lord of the

Conscience, A Policy Statement Adopted by the General

Assembly 52 (1988). Creation of the Kiryas Joel Village

School District as a governing entity violates this principle.

1

But this does not mean that government cannot aid

the disabled children of Kiryas Joel:

Government payments on behalf of

individuals, under programs such as

Medicare, Medicaid, and _ scholarship

assistance, should without exception be

available to clients and students at church-

sponsored agencies and institutions on

exactly the same terms as if those patients

or clients were receiving their services from

secular entities. ... Where government

provides noncurricular services to both

public and private schools that involve the

itineration of public employees to the

institutions, schools sponsored by religious

organizations should not be excluded.

Id. at 31-32.

The General Assembly does not claim to speak for

all Presbyterians, nor are its decisions binding on the

membership of the Presbyterian Church. The General

Assembly is the highest legislative and interpretive body

of the denomination, and the final point of decision in all

disputes. As such, its statements are considered worthy of

respect and prayerful consideration of all the

denomination's members.

SUMMARY OF ARGUMENT

This case involves a deliberate and successful effort

to confer governmental power on a religious community,

and the resulting combination of religious and

governmental power violates the core of the

Establishment Clause. But the Satmar Hasidim's

legitimate need for accommodation can be fully met by

providing publicly funded services for disabled children at

a site off the campus of the Satmar's private religious

school. On these two points, we adopt by reference parts

I, Il, Il, and VI of the brief of the American Jewish

Congress et al. as Amici Curiae.

We file separately from the American Jewish

Congress brief so that we may address the parties’ dispute

over the Lemon test and the endorsement test. The

second prong of the Lemon test originated in Abington

School District v. Schempp, 374 U.S. 203, 222 (1963), as an

attempt to elaborate the requirement of government

neutrality toward religion. The Schempp-Lemon

formulation had the unintended consequence of

disaggregating the neutrality inquiry into two separate

inquiries: Has government advanced religion? And, has

government inhibited religion? This disaggregation

suggests that there is a constitutional violation anytime a

policy may be said to advance religion, even if the only

alternative policy would severely inhibit religion. It is this

disaggregation of the neutrality inquiry that leads

petitioners, and some lower courts, to conclude that the

Lemon test prohibits any effort to accommodate the needs

of religious minorities, or even that it requires government

to discriminate against observant religious believers.

This Court has never misunderstood the Schempp-

Lemon test in this way. The Court has held in many

3

contexts that government does not establish religion by

eliminating governmentally imposed burdens on religious

observance, and that discrimination against religious

minorities is not required and is often forbidden.

What is needed to resolve the difficulties raised by

petitioners is to clarify the second prong of the Lemon

test to restate the Court's original intention: the goal is

government neutrality toward religion. The search for

neutrality requires that any effects of a policy that tend to

advance religion be compared to any effects of alternative

policies that tend to inhibit religion. It is rarely possible

for government to achieve absolutely no effect on religion.

The best government can do is to minimize its effects on

religion; more specifically, government should minimize

the extent to which it either encourages or discourages

religious belief or practice.

The Lemon test would benefit from _ this

clarification. But the underlying requirement that

government be neutral toward religion is essential to

religious liberty; it is critical that the Court not cast any

doubt on that basic requirement.

The endorsement test requires similar clarification.

The endorsement test is essential in cases involving

government speech or symbolic conduct; in those cases,

endorsement goes to the heart of the issue. But it is

misleading to extend the endorsement test to government

policies with more tangible consequences. If government

policy has tangible consequences, and if those

consequences come as close to neutrality as it is possible

to come, then the policy is constitutional and courts

should not speculate about implicit or symbolic

endorsements.

ARGUMENT

I, Creation of the Kiryas Joel Village School District

Was Unconstitutional Because It Deliberately

Combined Religious and Governmental Power.

Amici entirely agree with parts I, II, and III of the

Brief of the American Jewish Congress et al. as Amici

Curiae; we adopt parts I, II, and III of that brief by

reference. This case involves a deliberate and successful

effort to confer governmental power on a religious

community, and the resulting combination of religious and

governmental power violates the core of the

Establishment Clause. This point is dispositive of the

case; we will not burden the Court by restating it here in

different words.

Il. Affirmance Here Would Not Preclude

Accommodation of the Needs of the Disabled

Children of Kiryas Joel.

The Satmar Hasidim's legitimate need for

accommodation can be fully met under this Court's cases

by providing publicly funded services for disabled children

at a site off the campus of the Satmar's private religious

school. On this point, we adopt by reference part VI of

the brief of the American Jewish Congress.

Ill. The Schempp-Lemon Test and the Endorsement

Test Are Sound in Principle. They Would Be

Improved by Clarifying Their Detai!s.

Instead of a straightforward analysis based on the

combination of religious and governmental power, the

New York Court of Appeals relied on the second prong

of the Lemon test and on the endorsement test. Grumet

v. Board of Education, 618 N.E.2d 94, 99 (N.Y. 1993).

The Court of Appeals’ analysis is neither necessary nor

helpful in this case.

All three petitioners read the Court of Appeals to

hold that government advances and endorses religion any

time it accommodates the needs of religious minorities.

To the extent that the opinions below are susceptible of

that reading, they are wrong. Despite some language that

tends toward such conclusions, we do not think that is

what the opinions below held. The Court of Appeals

recognized that the Satmars are entitled to publicly

funded services for their disabled children on sites away

from the campus of their private religious schools. It is

therefore obvious that the Court of Appeals does not

think that all accommodations are unconstitutional.

Rather, the Court of Appeals held that New York had

conferred benefits that go far beyond restoring disabled

Satmar children to equal participation in programs for the

disabled. Benefits not necessary to accommodation

cannot be justified as accommodation; they are likely to

be an establishment.

The opinions below and the petitioners’ briefs

highlight a continuing source of confusion in the Schempp-

Lemon test and in the endorsement test. We believe that

the basic principle underlying these tests is sound; the

confusion comes from ambiguities in the details of the

6

Schempp-Lemon formulation of the test and from

uncertainty about the scope of the endorsement test. This

case, involving a violation of the fundamental rule against

combining religious and governmental power, presents no

occasion to fine tune the language of doctrinal

formulations. But if the Court chooses to address the

Schempp-Lemon test in this case, it should recognize that

nothing more than fine tuning is required.

A. The Schempp-Lemon Test

The Court of Appeals relied on the second prong

of the Lemon test: that the statute's principal or primary

effect must neither advance nor inhibit religion. Lemon

v. Kurtzman, 403 U.S. 602, 612 (1971). This part of

Lemon was taken almost verbatim from Abington School

District v. Schempp, 374 U.S. 203, 222 (1963). The Court

in Schempp explicitly offered the test as an elaboration of

"the wholesome ‘neutrality’ of which this Court's cases

speak." /d. Government was not to depart from

neutrality in either direction; it was neither to advance

nor inhibit religion.

The Schempp-Lemon formulation of the neutrality

requirement has had unintended consequences. The

Schempp-Lemon formulation can be read to disaggregate

the search for the most nearly neutral course into two

separate inquiries: Has government advanced religion?

And, has government inhibited religion? It is possible to

ask these two questions separately, and it is therefore

possible to ask either without asking the other. And so by

an inadvertent linguistic substitution, many lower courts

now ask whether government has advanced religion,

instead of asking whether government has departed from

neutrality.

This disaggregation of the neutrality inquiry is a

mistake:

Because absolute zero is not

achievable, it is always possible to find

some effect of advancing or inhibiting

religion. Thus, if you look at only one side

of the balance, you can always find a

constitutional violation. .. .

Substantive neutrality always requires

that the encouragement of one policy be

compared to the discouragement of

alternative policies. ... By disaggregating

neutrality, the Court has lost sight of its

original objective.

Douglas Laycock, Formal, Substantive, and Disaggregated

Neutrality Toward Religion, 39 DePaul L. Rev. 993, 1007-

08 (1990).

The basic point is clearly illustrated in this case.

Because of their religious beliefs and practices, Satmar

children are unable to attend a public school with other

children. Some of these Satmar children also have

disabilities, and they are entitled to publicly funded

services for the disabled under programs administered

through schools. There is thus an unavoidable conflict

between the practices of the non-Satmar majority and the

Satmar minority. What is the most nearly neutral

government response to this conflict?

One possibility is to provide publicly funded

services to the disabled Satmar children at a site where

they can participate, separated from the other children.

Considered in isolation, this might be thought to advance

8

Satmar Hasidism. But this possibility cannot be

considered in isolation; it must be compared to the

alternative. The alternative is to tell Satmar children that

th, cannot get publicly funded services for the disabled

unless they give up core practices of their faith. This

would plainly inhibit Satmar Hasidism. Moreover, the

inhibiting effect of withholding services from disabled

children would far exceed the advancing effect of

providing those services at a site away from the main

campus of the public school.

Thinking about the incentives created by each

alternative makes clear which alternative would be the

greater departure from neutrality. It is almost impossible

to imagine non-believers converting to Satmar Hasidism

in order to send their disabled child to a different

building. If public services are available to disabled

children of all faiths, the way in which the services are

delivered creates no incentive to change faiths. But it is

easy to imagine parents abandoning Satmar Hasidism, or

relaxing their family's observance of the faith, if that is the

only way to get an education for their disabled child.

Withholding services from the disabled would place

enormous governmental pressure on religious choices,

penalizing the religious choices of those who adhere to

the faith, and successfully coercing the religious choices of

those who succumb to the government's pressure. It is far

more nearly neutral to provide the services at a separate

site than to provide them in such a way that families must

abandon the practice of their faith in order to participate.

Another useful way to clarify the choice between

these two alternatives is this: Providing services for

disabled children in a way that enables the Satmar to

participate removes a burden from the practice of Satmar

Hasidism. But removal of the burden is relevant only to

9

those who are already attracted to the faith. Unlike

government prayers or religious observances, removing a

burden cannot motivate anyone to be attracted to the

burdened faith in the first place. But imposing a burden

can motivate people to leave the faith, and it can penalize

them for staying in. It is usually more nearly neutral to

remove burdens than to impose them.

The standard applied in the foregoing analysis is

that the goal of government neutrality toward religion

should be to minimize government influence on religious

choices. Scholars on both sides of this case have agreed

on that basic standard. “[T]he religion clauses require

government to minimize the extent to which it either

encourages or discourages religious belief or disbelief,

practice or nonpractice, observance or nonobservance."

Laycock, supra, 39 DePaul L. Rev. at 1001. "Government

is not free to promote or discourage [religion].

Effects on religious practice must be minimized . . .”

Michael W. McConnell & Richard A. Posner, An

Economic Approach to Issues of Religious Freedom, 56 U.

Chi. L. Rev. 1, 14 (1989).

This underlying principle of neutrality toward

religion is sound, and it is well-established in the opinions

of this Court. The neutrality principle is violated here by

the permanent alliance of religion and government in the

Kiryas Joel Village School District. New York has not

merely lifted a burden from the Satmar; it has not merely

found a means to provide equal access to public services

for their disabled children. New York has conferred on

the Satmar all the governmental power of a New York

school district: power to tax, to regulate teachers and

students, to establish curriculum, even power to close the

public schools. All these powers have been used: the

district has no public school for children who are not

10

disabled. Cf. Griffin v. County School Board of Prince

Edward County, 377 U.S. 218 (1964).

Even before these powers were used, creation of a

separate political entity on religious lines had immediate

and permanent effects, powerfully reinforcing private

choices with the coercive powers of government. Private

choice had created merely a group of Satmar living in

close proximity. The boundary of their neighborhood was

free to ebb and flow under the cumulative effect of

private choices about religion and about real estate. It

was the State of New York that fixed the boundary by

law. A decision to buy or rent a home on one or the

other side of the line now has dramatic legal and political

consequences for the buyer -- consequences that did not

attach to the informal edges of a neighborhood. To move

into Kiryas Joel is not merely to acquire Satmar

neighbors, but to submit to Satmar government. Fixing

the boundary by law and allocating governmental power

on either side of the boundary made the boundary

permanent and coercive.’

Neither the Schempp-Lemon test nor the language

of neutrality is needed to explain what is wrong with

combining religious and governmental po ‘er in these

ways. But the more direct analysis of the case in the Brief

of the American Jewish Congress is entirely consistent

with both the neutrality standard in general and with the

Schempp-Lemon formulation in particular. Conferring

governmental power on the Satmar Hasidim establishes

! Similar but not identical analysis applies to the

Village of Kiryas Joel, which was created by a quite

different procedure. That issue is not before the Court.

11

their religion; providing services to their disabled children

would not.

What is needed is not to overrule the Schempp-

Lemon test, but to clarify it. This Court has never

understood the Schempp-Lemon test to require

discrimination against religion or to preclude government

from lifting regulatory burdens on religion. Under this

Court's cases, religious minorities may be exempted from

burdensome regulation, Corporation of the Presiding Bishop

v. Amos, 483 U.S. 327 (1987), Employment Division v.

Smith, 494 U.S. 872, 890 (1990), receive social services on

an equal basis with other citizens, Zobrest v. Catalina

Foothills School District, 113 S. Ct. 2462 (1993), Witters v.

Washington Dept. of Services for the Blind, 474 U.S. 481

(1986), participate on an equal basis in the institutional

delivery of social services, Bowen v. Kendrick, 487 U.S. 589

(1988), Bradfield v. Roberts, 175 U.S. 291 (1899), and

speak in public places on an equal basis with other

speakers, Lamb's Chapel v. Center Moriches Union Free

School District, 113 S. Ct. 2141 (1993), Board of Education

v. Mergens, 496 U.S. 226 (1990), Widmar v. Vincent, 454

U.S. 263 (1981).

It is only the unintended ambiguity of the

Schempp-Lemon formulation that has led some advocates

and lower courts to think that the Constitution requires or

permits discrimination against religion. The Court would

do well to clarify that the inquiry into advancement can

never be separated from the inquiry into inhibition -- that

these are inseparable components of a single inquiry into

neutrality.

12

B. The Endorsement Test

The endorsement test is not relevant here. The

proper domain of the endorsement test is government

speech and symbolic conduct. It is no accident that the

endorsement test originated in a creche case, Lynch v.

Donnelly, 465 U.S. 668, 690 (1984) (O'Connor, J.,

concurring), and that the Court has applied it principally

in cases involving speech or religious observance. Wallace

v. Jaffree, 472 U.S. 38, 56 n.42 (1985) (moments of

silence); Edwards v. Aguillard, 482 U.S. 578, 585 (1987)

(curriculum); County of Allegheny v. ACLU, 492 U.S. 573,

592-94, 601 (1989) (religious displays); see also Lee v.

Weisman, 112 S. Ct. 2649, 2664 (1992) (Blackmun, J.,

concurring) (school prayer); id. at 2676 (Souter, J.,

concurring).

Government speech or symbolic conduct violates

the Establishment Clause if it endorses a position for or

against religion in general or for or against one religion in

particular. When government merely speaks, the

communicative and symbolic impact is dominant with

respect to both the constitutional costs and the alleged

majoritarian benefits. Tangible consequences are

secondary and attenuated or even absent altogether.

When the government is engaged only in religious speech

or symbolic religious conduct, the endorsement test goes

to the heart of the matter. It is a way of explaining that

when government deliberately takes positions on religious

issues, coercion is superfluous.

At first the endorsement test also seemed to be a

helpful way of reducing the ambiguities of the Schempp-

Lemon formulation of neutrality: endorsement was a way

of explaining that it is not a forbidden advancement of

religion to exempt conscientious objectors or otherwise

13

remove burdens from religious practice. Wallace v.

Jaffree, 472 U.S. 38, 83 (1985) (O'Connor, J., concurring).

But the opinion below demonstrates that the endorsement

test can aggravate those ambiguities rather than solve

them.

This case demonstrates that it is both unnecessary

and misleading to focus on sym olism when government

action has more tangible consequences and is directed at

more tangible problems. When government uses its

coercive powers to tax or regulate, or when it gives money

to religious entities, or where as here it confers on a

religious community the power to tax, spend, and regulate,

then the focus should be on the actual purpose and effect

of what the government has done. If the tangible effects

of the government's acts depart from neutrality, there is

a prima facie violation of the Religion Clauses, and it

adds nothing to speak of endorsement. Conversely, if the

tangible effects of what the government has done come as

close to neutrality as the circumstances permit,

government has not endorsed religion, and it is a mistake

to inquire separately whether it has done so by

implication.

If a reasonable observer fully understands the

government's program and realizes that it is neutral, then

that observer will not perceive an endorsement, and the

endorsement test will have added nothing to the analysis

of tangible consequences. On the other hand, if the

reasonable observer perceives an endorsement even

though the government's program comes as close to

neutrality as circumstances permit -- even though

government has done everything possible to minimize its

influence on religious choices -- then the reasonable

observer is simply mistaken (or unreasonable after all),

and constitutional analysis should not be held hostage to

14

his mistake. Put another way, the observer's perception

of implicit endorsement in a neutral policy will always be

a smaller departure from neutrality than the tangible

incentives or disincentives of alternative policies.

Talk of a “symbolic union" of church and state is

irrelevant and misleading for similar reasons. The

problem in this case is not a symbolic union, but a real

union. The law creating the Kiryas Joel Village School

District is unconstitutional not because of what it

symbolizes, but because of what it does: it actually

confers governmental power on an entity defined by

religion. Symbolism does not compound the violation;

and if there were no violation, symbolism would not

create one. The New York legislation in this case was an

attempt to solve a difficult problem, and the legislature

would have been criticized no matter what it did. It is

enough for the legislature to enact the most neutral

solution available, without having to worry whether its

critics might perceive symbolism or implied endorsements.

This Court extended the endorsement test beyond

government speech and symbolic conduct in School

District of Grand Rapids v. Ball, 473 U.S. 373, 389-90

(1985). The Court found an implicit endorsement in state

funded courses on the campus of religious schools. This

extension of the endorsement test was unnecessary to the

result, which was adequately explained by other rationales

set out in the same opinion. Most important, there was

nothing in the structure of the Grand Rapids program to

keep it from expanding until it supplanted all or part of

the core curriculum, thus enabling government to pay for

the core educational functions of a religious school. /d. at

396-97. See also id. at 385-89 (fear of state-sponsored

religious indoctrination). These other rationales rested on

a long line of this Court's cases. Talk of implied

15

endorsement and symbolic union was dictum, transferring

a new formulation from the government speech cases to

a novel context.

Experience has shown that it was misleading to

transfer this doctrine beyond its natural scope. It can be

abandoned without calling Grand Rapids into question.

Indeed, the Court rejected an argument based on a

symbolic “link” in Bowen v. Kendrick, 487 U.S. 589, 613

(1988), on the ground that it reached much too far.

Critics can find a symbolic link or union in any

cooperation between church and state, even in the

provision of services to disabled children. Fears of merely

symbolic unions would thus call in question every one of

the cases cited at page 12 of this brief; taken seriously,

such arguments would require discrimination against

religious citizens. All that remains is to acknowledge that

Bowen ended the mistaken extension of the endorsement

and symbolic-union tests to cases involving tangible

government programs. These arguments should be

reserved for government speech about religion.

CONCLUSION

For the reasons stated in parts I, II, Ill, and VI of

the brief of the American Jewish Congress, the judgment

should be affirmed. This judgment would not and should

not preclude special education services to the disabled

children of Kiryas Joel.

Affirmance need not entail reconsideration of

either the Schempp-Lemon test or the endorsement test.

But if those tests are to be reconsidered, only minor

clarifications are needed. The essence of those tests is

the constitutional commitment that government should be

16

neutral towards religion. That commitment must be

preserved. But that commitment does not preclude

removing burdens from religious minorities, and it does

not require speculation about implicit endorsement in

otherwise neutral government programs. Rather, the

commitment to neutrality is best understood as

minimizing the influence of government on private

religious choices.

Respectfully submitted,

Douglas Laycock

Counsel of Record

727 E. 26th St.

Austin, TX 78705

512-471-3275

February 21, 1994

17