# Amicus Curiae Brief — Agostini v. Felton

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1997
- **Citation:** 521 U.S. 203

## Text

_~

(19) Supreme Court, U.S,
\2 Aes Fe
Ve FEB 28 1997

Richie

IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1996

RACHEL AGOSTINI, ET AL.,
Petitioners,
v.

BETTY-LOUISE FELTON, ET AL.,
Respondents.

CHANCELLOR OF THE BOARD OF EDUCATION, ET AL..,
Petitioners,

v.

BETTY-LOUISE FELTON, ET AL.,
Respondents.

BRIEF AMICUS CURIAE OF THE
UNITED STATES CATHOLIC CONFERENCE
IN SUPPORT OF PETITIONERS

MARK E. CHorpKo*
General Counsel

JOHN A. LIEKWEG
Associate General Counsel

JEFFREY HUNTER MOON
Solicitor

UNITEDSTATES CATHOLIC CONFERENCE
3211 Fourth Street, N.E.

Washington, D.C. 20017
*Counsel of Record (202) 541-3300

' 3 4 Sr rs y iii
INTEREST OF AMICUS CURIAE ..............5..
SUMMARY OF ARGUMENT
ARGUMENT
I, Aguilar v. Felton Has Institutionalized

Significant Jurisprudential and Educational!

Deficiencies

A, Aguilar |s Inextricably Rooted in

Lemon, and Its Suspect

Interpretation of Constitutional
Text and Principle

Aguilar Has Created Significant and
Expensive Difficulties, Harmful Both
to Needy Children and the Common
Good of Our Society

A New Approach to the Interpretation
of the Establishment Clause Must Be
Undertaken Here

A A New Interpretational Guide Should
Be Rooted in the History of the
Religion Clauses and Capable of
Consistent Application

(continued)

B. This Court Should Insist That
Cooperative Efforts Between
Religious and Governmental
Institutions Be Tesied According
to Whether It Can be Demonstrated
That the Program Actually
impairs Personal Religious Liberty
or Institutional Autonomy ............ 21

ll. Aguilar Must be Overturned ..... 0.000500 5>: 25

CONCLUSION once cece ccc ccceveevveseeesvrenes 28

TT
TABLE OF AUTHORITIES
Page
Cases
Aguilar v. Felton,

Ee todd ckicet badéeeces passim
Barnes v. Cavazos, 966 F.2d 1056 (1992),

No. C80-0501-L(A)

(W.D. Ky. Feb. 21, 1990) ...............4.. 13
Board of Education v. Alexander,

ES dic bd ce ceseveccevore: 13
Board of Education of Kiryas Joel Village

School District v. Grumet,

SE UN GOOD ccccccccccccccces passim
Bowen v. Kendrick,

487 U.S. 589 (1988)... 2. eee 8, 22
Bowen v. Roy, 476 U.S. 693 (1986)... 2.6. ee 25
Capital Square v. Pinette,

DE Ee OU ONOOOD cc ccccccccccccccccces 18
Chrysler Corp. v. Brown,

ED vcccccccccccceseeeteseet 7
Church of Lukumi Babalu Aye v. City of Hialeah,

Ee 20, 21, 22

Committee for Public Education v. Nyquist,
413 U.S. 756 (1973) .. 2... cece en 26

iv

TABLE OF AUTHORITIES
Page

Committee for Public Education and Religious Liberty

v. Secretary, U.S. Dept. of Education,

942 F.Supp. 842 (E.D.N.Y. 1996) ............ 3
Corporation of Presiding Bishop of the Church

of Jesus Christ of Latter-Day Saints v. Amos,

453 UG. SBP COGS) 2 occ cccccddcwcsvceces 6, 23
County of Allegheny v.

ACLU, Greater Pittsburgh Chapter,

GIB UD, GED vc hc dvcwcscccccccs 6, 18, 21
Edwards v. Aguillard,

GERD, GEO CINE ccc cccccsccvbecceecveess 6
Employment Division v. Smith,

GOO US, GHB IGG oc cv cccccvccccccseccceves 9
Everson v. Board of Education,

SEDTEE, BERD o wo vcccccecccccccns 16, 22, 24
Felton v. Secretary, U.S. Dept. of Education,

Pe c co ccccccceceseséescccss 10
Harmon v. Dreher,

17 S.C. Eq. (Speers Eq.) 87 (1843) ........... 22
Hobbie v. Unemployment Appeals Comm'n of Fla.,

GEDULG. UBS CITEFD « wc cccccccccesccceecces 20

Vv
TABLE OF AUTHORITIES

Hunt v. McNair,

a ee ee 20
Lamb's Chapel v. Center Moriches

Union Free School District,

a 18
Larkin v. Grendel's Den, Inc.,

EE ee 23
Lee v. Weisman,

I ik a eal 21
Legal Tender Cases,

79 U.S. (12 Wall.) 457 (1871) ............. 7,24
Lemon v. Kurtzman,

403 U.S. 602 (1971) ..............0055, passim
Lynch v. Donnelly,

Ls passim
Marsh v. Chambers,

a ee 6, 15

McCollum v. Board of Education,
re cccceceucoeeseeesacs 14

McGowan v. Maryland,
is so. ccencenuansaeeus 17, 22

vi
TABLE OF AUTHORITIES
Page
Meek v. Pittenger,
— bf! & |. Se eee re errr 24
Meyer v. Nebraska,
, 4, i Ra erperrrerrrr yor 27
NLRB v. Catholic Bishop of Chicago,
OR PPP eerie 9, 23
Pacific Gas and Elec. Co. v. Public Utils. Comm'n.,
I eh COE oo c occ cbs vb deccncbésesetes 7
Pierce v. Society of Sisters,
- el ee er 21,27
Pulido v. Cavazos,
728 F. Supp. 574 (W.D. Mo. 1989) ........ 12, 13
Roemer v. Maryland Board of Public Works,
GOO UE, TEU OEe o vc ccccccccccsusds 8, 19, 20
Rosenberger v. Rector of the University of Virginia,
jd le ®. |) Serr rir rie 19
Schmidt v. Bishop,
779 F.Supp. 321 (S.D.N.Y. 1991) ............. i)
School District of Abington Township v. Schempp,
SPO UD. FED (UGSS) 0 occ ccccccccsccess passim

Sherbert v. Verner,
Bs BE hc vcccnccecesevidunnees 20

vil

TABLE OF AUTHORITIES

Torcaso v. Watkins,
ee ee ee oe a 16

United States v. Public Utils. Comm'n..
EE Se ea ee 7

Walker v. San Francisco Unified School District,
46 F.3d 1449 (1995),
761 F. Supp. 1463 (N.D. Cal. 1991) .......... 13

Wallace v. Jaffree,
EE is bs bud veesobuweued 5,7, 15

Walz v. Tax Commission,
Oe SP ONOUED voce ccceccsétcces 18, 20, 23

Wisconsin v. Yoder,
ED 666 gS CKRESRS Pw eee cs passim

Zobrest v. Catalina Foothills School District,
Se EU UUED oc occcceceses 18, 19, 23, 26

Zorach v Clauson,
PPO k ovdoccvccesessde 15, 20, 27

Constitutional and Statutory Provisions

Adolescent Family Life Act,
ts OND. oc ccc ccccccccccss 25

vill
TABLE OF AUTHORITIES

Education Consolidation and Improvement Act of 1981,

Pub. L. No. 97-35, 95 Stat. 454,

Title V, Subtitle D(1981) ............65 0005 2
Elementary and Secondary Education

BRET EEED 66 ood ccddicecdiededodcesenaeds 2
Pub. L. 103-112, 107 Stat. 1082 (1993) ............05. 12
Pub. L. 103-333, 108 Stat. 2539 (1994)...........45. 12
Pub. L. No. 103-382,

108 Stat. 3518, Title 1 (1994) ...........-5565. 2
Pub. L. 104-56, 109 Stat. 548 (1995)... ........6005, 12
Religious Freedom Restoration Act,

42 U.S.C. § 2000bb ef seg... 66. 20
20 U.S.C. § 2727) «0. creer e cece cee eeceeneneees 11
20 U.S.C. § 3801 (1982) ...... cee cece cere ee enees 2
20 U.S.C. § 3803 (1982) ...... cece eee cere ee eeees 2
20 U.S.C. § 6301 (1994) 20... cece cece eee eens 2
U.S. Comet. amen. 41 on. ccccccccccscccctescvecece 16
Legislative History

ix

TABLE OF AUTHORITIES

ey Oe ED Gb Asia Retiree ds Wes ci eedeses 15

Other Authorities/Miscellaneous

| ANNALS OF CONGRESS 730-31
(Gales & Seaton eds., 1789) ................
Antieu, Chester J., ef al., Freedom From Federal
Establishment: Formation and Early History
of the First Amendment Religion Clauses
Nh a es ea eees

Baer, Richard, The Supreme Court's
Discriminatory Use of the Term “Sectarian,”
6 J. Law & Politics 449 (1990) ..............
Chopko, Mark E., /ntentional Values and the
Public Interest - A Plea For Consistency
in Church/State Relations, 39 DePaul
SS re

Chopko, Mark E., Religious Access to Public
Programs and Governmental Funding,
60 Geo. Wash. L. Rev. 645 (1992) ...........

Elliot, J., DEBATES OF THE FEDERAL CONSTITUTION
Se) dv etaks od dbs che cinece

General Accounting Office, Aguilar v. Felton
Decision's Continuing Impact of Chapter |
Program (GAO/HRD-89-131BR, 1989)

x xi
TABLE OF AUTHORITIES TABLE OF AUTHORITIES
Page

Glendon, Mary Ann & Yanes, Raul, U.S. Department of Education, Statement

Structural Free Exercise, of the Independent Review Panel

90 Mich. L. Rev. 477 (1991)... cee 5,8 of the National Assessment of

aga gL a lO oa ee

Haslam, M., Humphrey, D., Chapter / Services

to Private Religious School Students The Writings of Thomas Jefferson

(U.S. Dept. of Education, 1993) 2... 6.6.6.0 6. 12 EE

McConnell, Michael W., Religious Freedom at
a Crossroads, 59 U. Chi. L. Rev, 115 (1992) ....5

Nomination of David H. Souter to be Associate Justice
of the Supreme Court of the United States:
Hearings Before The Senate Comm. on the
Judiciary, 101 st Cong., 2nd Sess 156 (1990) ..... 6

Paulsen, Michael Stokes, Lemon is Dead,

43 Case. W. Res. L. Rev. 795 (1993) .......... 5
PROCEEDINGS, EARL WARREN CONFERENCE ON

ADVOCACY, CHURCH, STATE

wl) |) eer rr 14

Russo, A., Haslam , M., The Uses of
Computer Assisted Instruction in Chapter |
Programs Serving Sectarian Private School
Students, (U.S. Dept. of Education, 1992) ...... 10

Stokes, A., CHURCH AND STATE IN THE
0 eee oe 16

-_-~

RACHEL AGOSTINI, ET AL.
Petitioners,

v.

BETTY-LOUISE FELTON, ET AL.,
Respondents.

CHANCELLOR OF THE BOARD OF Ept ICATION, ET AL.,
Petitioners,

v.

BETTY-LOUISE FELTON, ET AL.,
Respondents.

BRIEF AMICUS CURIAE OF THE
UNITED STATES CATHOLIC CONFERENCE
IN SUPPORT OF PETITIONERS

INTEREST OF AMICUS

The United States Catholic Conference (“USCC”) is a
nonprofit corporation, the members of which are the active Catholic
Bishops in the United States. USCC advocates and promotes the
pastoral teaching of the U.S. Catholic Bishops in such diverse areas
of the nation’s life as the free expression of ideas, fair employment
and equal opportunity, the rights of parents and children, the sanctity
of life, and the importance of religious communities. Values of
particular importance to the Conference are the protection of the first
amendment rights of religious organizations and their adherents, and
the proper development of this Court's jurisprudence in that regard.

This case offers this Court an opportunity to speak on several
important issues. First, the case allows for a serious reexamination
of the Court's Establishment Clause jurisprudence which, both in
substance and in process, has failed to serve the history and purpose
of the first amendment. That jurisprudence can better serve the
genuine goals of both religion clauses, and begin to implement them

2

more consistently. Second, and more importantly, this Court can
meaningfully advance the welfare of special needs children by
endorsing appropriate and religiously neutral ways to advance their
education consistent with their parents’ religious and cultural values.

Through their counsel, the parties have consented to the
appear® ice of this amicus.

SUMMARY OF ARGUMENT

For the nineteen years prior to 1985, pursuant to Title | of the
Elementary and Secondary Education Act and its successive
amendments,’ the New York City Board of Education provided
remedial education to economically and educationally deprived
children in both public and private schools, including religiously-
affiliated schools. This remedial instruction was provided on
premises, in both public and private schools. By all reckoning, that
program was a success, serving to further the educational
development of those children most in need.

The Court's decision in Aguilar v. Felton, 473 U.S. 402
(1985), dramatically altered that program. In perhaps the strictest
application of “separation” principles, a bare majority in Aguilar
decided that these remedial education programs could not
constitutionally survive on the premises of religious schools in spite

. On July |, 1982, the Elementary and Secondary
Education Act (“ESEA”) of 1965 was amended and superseded by
the Education Consolidation and Improvement Act (“ECIA”) of
1981. Pub. L. No. 97-35, 95 Stat. 463, Title V, Subtitle D (1981).
20 U.S.C, § 3801 (1982). Chapter | of the ECIA incorporated by
reference most provisions of Title | of the ESEA which were the
subject of this lawsuit when filed in 1978 and includes identical
Provisions governing participation of private school students. See
20 U.S.C. § 3803 (1982). On October 20, 1994 Congress again
amended ESEA, resulting in the redesignation of the program as
“Title 1.” Pub. L. No. 103-382, 108 Stat. 3518, Title 1 (1994). 20
U.S.C. § 6301 (1994). We will refer to the program throughout as
“Title 1.”

3

of the fact that not a single instance, in 19 years, of improper attempts
to inculcate religious beliefs at public expense, was ever
demonstrated. Aguilar, 473 U.S, at 424 (O'Connor, J., dissenting).
Following Aguilar, school authorities were forced to pursue
alternative venues and techniques to provide those services to
children who needed and were entitled to them, and who attended
parochial schools, These techniques themselves have come under
attack as being constitutionally deficient, by groups and individuals
opposed to the provision of special education services in any but a
public school setting. See, e.g., Committee for Public Education and
Religious Liberty v. Secretary, U.S. Dept. of Education, 942 F Supp.
842 (E.D.N.Y. 1996). At the same time, the development of this
Court's Religion Clauses jurisprudence has grown away from
Aguilar, and has made its deficiencies, with its singular reliance on
Lemon v. Kurtzman, 403 U.S, 602, 612-13 (1971), all the more clear.
This Court should embark in a new direction, abandoning the flawed
decision in Aguilar and the aptly-labeled Lemon test. This Court
should do so in a way that sets out new parameters the Court can use
to frame a more appropriate tust, rooted in history and experience but
capable of application to a range of contemporary problems.

First, such a test must provide for absolute impartiality of
treatment for religion, and among religions. In order to do so, two
interests must both be served, rather than spuriously seeming to be
weighed against each other. Personal religious liberty must at all
times be protected from encroachment by the state, and the
institutional autonomy of both governmental and religious institutions
must not be impinged upon. Neither must be permitted to intrude
into the institutional prerogatives of the other.

Second, these interests should be protected by demanding
that the challenger of the action in question, as in all other civil
litigation, bear the burden of demonstrating that a claimed violation
of the Establishment Clause has in fact occurred, In Aguilar, the
burden was essentially placed on those defending the program to
prove that public employees could never convey a religious message
in delivering Title | services, without constant surveillance arising out
of the state’s efforts to supervise its own employees who were
providing these services. Aguilar, 473 U.S. at 413. That supervision,

4

in and of itself, was seen in Aguilar as violative of Lemon's
entanglement test.

The state's affirmative obligation to accommodate religion,
not take a position hostile to religious belief itself, must be clearly
recognized. By using these standards as a benchmark, then, the
Establishment Clause can here be understood in a coherent way.
Applying these standards here will not only result in the reversal of
Aguilar but set a course for future jurisprudence that allows for the
vindication of the authentic goals of both Religion Clauses.

ARGUMENT

|. Aguilar v. Felton Has Institutionalized Significant
Jurisprudential and Educational Deficiencies.

This Court has a chance to undo a decision that has been as
damaging in its implications for religious/state relationships in this
country, as it hae heer damaging to the educational interests of the
economically needy and educationally disadvantaged students whose
parents have chosen to send them to religiously affiliated schools. In
Aguilar, this Court decided that the Establishment Clause prohibited
the provision of Title | remedial educational services to children
entitled to receive these services, on the premises of their own
schools, if those schools happened to be religiously affiliated. In
large part it did so because it concluded that a violation of the
“entanglement prong” of the Lemon test would “inevitably result”
from the public school board's monitoring of its own teachers, who
were providing services on the premises of parochial schools.
Aguilar, 473 U.S, at 409. In the intervening years, both the
jurisprudential and educational goals of the country have suffered.
Here, the Court can -- and we submit, must -- make things right.

A. Aguilar \s inextricably Rooted in Lemon, and Its

Suspect Interpretation of Constitutional Text and
Principle.

It is clear from this Court's decision in Aguilar that that
decision depends, first and last, on the authority of the tripartite test

5

announced in Lemon v. Kurtzman. Application of the three-part
Lemon test resulted in the Court's decision that the state’s own
supervision of its own publicly-employed special education teachers
conducting remedial education in religious schools constituted
“excessive entanglement” of church and state. Aguilar, 473 U.S. at
409. Lemon does not do legitimate service to the constitutional text
It skews the analysis against beneficial and constitutional cooperation
between government and religion, as measured by history and
experience. Aguilar should be overturned because it depends on
Lemon, and the test enunciated in Lemon should be reconsidered and
reformulated along the lines suggested here. The factual
circumstances of Aguilar presented no threat at all of establishment
or preference of any particular religion. Rather, the Aguilar decision
demonstrates affirmative “hostility toward religion and the children
who attend church-sponsored schools.” Aguilar, 473 U.S. at 420
(Burger, C_J., dissenting).

Lemon itself has long been subject to criticism as excessive
and unsupportable.’Many members of this Court have joined in this
criticism. From the time Lemon was decided, in fact, members of the
Court have criticized the test as not being a particuiarly useful or
principled way of deciding cases. Lemon, 403 U.S. at 668 (White, J..
concurring in part, dissenting in part). In Wallace v. Jaffree, 472 U.S.
38 (1985), Chief Justice Rehnquist wrote that “[(these] difficulties
arise because the Lemon test has no more grounding in the history of
the First Amendment than does the [“}wall[”] theory upon which it
standards for deciding Establishment Clause cases, as this Court has
slowly come to realize. Even worse, the Lemon test has caused this

: Lemon has come under broad-ranging criticism in
the academic legal community, and for a variety of reasons. See,
e.g., Michael Stokes Paulsen, Lemon is Dead, 43 Case W. Res. L.
Rev. 795 (1993); Michael W. McConnell, Religious Freedom at a
Crossroads, $9 U. Chi. L. Rev. 115, 127-34 (1992): Mark E.
Chopko, Religious Access to Public Programs and Governmental
Funding, 60 Geo. Wash. L. Rev. 645, 654-60 (1992); Mary Ann
Glendon & Raul Yanes, Structural Free Exercise. 90 Mich. L. Rev.
477, 503, 538 (1991).

6

Court to fracture into unworkable plurality opinions. ...” /d at 110
(dissenting). Justice Kennedy has indicated that an overall revision
of the Court's Establishment Clause jurisprudence “may be in order.”
County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S.
573, 656 (1989) (concurring in part and dissenting in part). Justice
O'Connor has pointed out the particular problems which application
of the Lemon test creates, when the issue is what steps the
government can take to accommodate the exercise of religion without
at the same time violating the Establishment Clause. Corporation of
Presiding Bishops of the Church of Jesus Christ of Latter-Day Saints
v. Amos, 483 U.S. 327, 346 (1987) (concurring in judgment), as well
as criticizing the Lemon test as being, in and of itself, excessively
rigid and insensitive to the demands of constitutional litigation.
Board of Education of Kiryas Joel Village School District v. Grumet,
114 S.Ct. 2481, 2500 (1994) (concurring and concurring in
judgment). Justice Scalia has also criticized the Lemon test. See
Edwards v. Aguillard, 482 U.S. 578, 613-19 (1987). Justice Souter
has voiced his concern that the Lemon test, as applied, may be in
direct conflict with the Free Exercise Clause. Nomination of David
H. Souter to be Associate Justice of the Supreme Court of the United
States: Hearings Before The Senate Comm. on the Judiciary, 101 st
Cong., 2d Sess. 156 (1990) (statement of nominee). In his opinion
for the Court in Kiryas Joel, 114 S.Ct. at 2487-2494, Justice Souter
eschewed Lemon in favor of an analysis of the facts and
circumstances of the case.

Lemon has led to results in individual cases, particularly in
the area of education, that are inconsistent and conflicting. Wallace.
472 US. at 110-11 (Rehnquist, J., dissenting). The focus of this
brief, however, is not only on achieving a different result in the
instant case, but also upon the process this Court utilizes in
scrutinizing challenges brought under the Establishment Clause. That
Clause demands that the Court must have a means to distinguish “rea!

threat” from “mere shadow.” Marsh v. Chambers, 463 U.S. 783, 795
(1983) (quoting School District of Abington Township v. Schempp,
374 U.S. 203, 308 (1963) (Goldberg, J., concurring)). Those means
must also be rooted in what history and experience teach are the goals
and values of the constitutional text. See Lynch v. Donnelly, 465 U.S.
668, 673-76 (1984). It is a text of enormous complexity requiring

7

care and sensitivity in its application.’ Lemon has utterly failed to
provide that procedural vehicle. It weights the scales of justice
eae mann and Sami enngenation antestdhen ta tee gui

interest. In Aguilar, it allowed the invalidation of an important public
program without any evidence of actua! harm.

Each prong of the Lemon test is problematic. On its face, the
search for “secular purpose” seems uncontroversial. In many
circumstances the Court simply looks to the goals sought to be
achieved as stated by the legislature. But in religion cases, Lemon
invites judges to do more, searching not just the legislature's motives
but those of individual legislators as well.‘ The second, “primary
effect,” prong, clearly manifests a distrust of religious organizations
to function properly within the confines of a governmental program.
For example, in Lemon the Court concluded that the religious nature
of the institution providing the services, by itself, demonstrated that
the statute had the primary effect of aiding religion. Lemon, 403 US.
at 635 (Douglas, J., concurring). The Court reasoned that all
functions of a religious institution, whether a school or a social
service agency, are committed to the inculcation of religious beliefs.
By linking one function of a religious institution with all of its others.
the Court assumed that religious organizations could not keep their

’ Acts of Congress should not be invalidated absent
“clear incompatibility” with the Constitution Lega! Tender Cases.
79 U.S. (12 Wall.) 457, 530-31 (1871).

: See, e.g, Wallace, 472 U.S. at 56-58 (hinging its
conclusion on fact that legislature had no secular purpose, based on
the views of the principal sponsors). For the most part, the Court
has deferred to the legislative findings and purposes that are
reflected in the statute. See Pacific Gas and Elec. Co. v. Public
Utils. Comm'n., 475 U.S. | (1986). The basic rule of statutory
construction is to disregard views of individual legislators (even
sponsors) as definitive interpretative guides. See Chrysler Corp. v
Brown, 441 U.S. 281, 311-12 (1979), see also United States v.
Public Utils. Comm’n., 345 U.S. 295, 319 (1953) lackson, J..
concurring) (stating that the Court should avoid “psychoanalysis of
Congress”).

various missions and goals separate. /d* That conclusion of
constitutional significance has had disastrous consequences for the
education of our nation’s neediest children.

It has always been recognized that the third facet of the
Lemon test, “excessive entanglement,” is inherently “insolubly
paradoxical.” Roemer v. Maryland Board of Public Works, 426 U.S.
736, 768 (1976) (White, J., concurring in judgment). This “Catch-22”
effectively creates a presumption of invalidity in cases having to do
with governmental aid programs involving religious schools.
Aguilar, 473 US. at 420 (Rehnquist, J., dissenting). This
presumption, and the inversion of the usual burdens of proof in the
civil case which was its concomitant in Aguilar, have also been
roundly criticized. See, e.g, Glendon and Yanes, Structural Free
Exercise, 90 Mich. L. Rev. supra at 510-514. This presumption of
invalidity arises from the way the Lemon test was enunciated. The
test stated in Lemon was not limited to the actual issue presented
there, the propriety of direct government supervision of officials of
a religious institution. Lemon, 403 U.S. at 619-20. Rather, Lemon
broadly condemned all “entanglement,” whether merely
administrative, substantive, or even entirely “prophylactic contacts”
having no purpose whatsoever except to ensure that teachers were not
teaching religious beliefs or doctrines when they were to be teaching
government-funded secular material. Lemon, 403 U.S. at 619. By
finding “entanglement” even though the Court agreed that only
potential but not actual hazards had been shown, id at 618, it

virtually conclusively presumed that whenever a government aid

' From time to time, this Court has employed the
rubric “pervasively sectarian” to mean an institution in which
religious proselytism and instruction could not be distinguished
from secular education. That terminology itself shows a marked
hostility towards religion and contributes to the jurisprudentia!
problem underlying this case. Richard Baer, The Supreme Court's
Discriminatory Use of the Term “Sectarian,” 6 J. Law & Politics
449 (1990). The focus should not be the institution but the
program of cooperation, and how the institutional cooperation
utilizes public funds. Bowen v. Kendrick, 487 U.S. 589, 624
(1988) (Scalia, J., concurring).

9

program involving parochial schools was at issue, that program
would violate the Establishment Clause .°

All of these concerns, distilled by Justice O'Connor's
recognition in Aguilar that the Lemon test had indeed condemned
benign cooperation between church and state, Aguilar, 473 U.S. at
421 (O'Connor, J., dissenting), show that new parameters must be
used to evaluate the constitutionality of governmental actions in cases
that raise Religion Clauses issues.

B. Aguilar Has Created Significant and Expensive
Difficulties, Harmful Both to Needy Children and
the Common Good of Our Society.

The Aguilar decision was made in the face of proof in the
District Court that the on-premises program had, in Justice
O’Connor’s words, “over almost two decades . . . . helped thousands
of impoverished parochial school children to overcome educational!
disadvantages without once attempting to inculcate religion.”
Aguilar, 473 U.S. at 431 (O’Connor, J., dissenting). Concurring in
the opinion in Aguilar, Justice Powell conceded that the educational
programs in question there had “done so much good and little, if any,

° Simply abandoning “excessive entanglement” is,
however, not a solution. In Employment Division v. Smith, 494
U.S. 872 (1990), this Court rewrote its Free Exercise Clause
jurisprudence generally but attempted to leave intact its caselaw
immunizing church internal operations, doctrine, and polity from
secular court scrutiny. /d. at 876-78. Some of that caselaw
involves decisions that invoivement of a state regulator, for
example, in a particular matter in a religious institution, would
“excessively entangle” the state in the governance of a church.
See, e.g., NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 501-
7 (1979), see also Schmidt v. Bishop, 779 F Supp. 321, 327-9
(S.D.N.Y. 1991). These cases are examples of “free exercise,” not
“establishment,” concerns. But revision of the test, as suggested
here, should avoid creating more harm to the body of law
protective of religious institutions, a principle on which this Court
has always correctly persisted.

10

detectable harm,” echoing the Second Circuit's decision below in
Felton v. Secretary, U.S. Dept. of Education, 739 F.2d 48, 72 (1984).
Aguilar, 473 U.S. at 415. At the same time, the Aguilar decision led
to extraordinary costs on the part of school districts nationwide as
they attempted to comply with the decision and provide these services
in ways not prohibited under Aguilar, as well as to much additional
litigation attempting to fix its boundaries and its meaning.

Aguilar created major logistical and educational problems in
delivering Title | services to private school children, resulting in
fewer children receiving remedial services.’ Following Aguilar,
participation of private school children in the Title | program dropped
precipitously as school districts scrambled to provide alternative
methods to deliver those services. Before Aguilar, states served
185,000 private school students. After Aguilar, the number declined
by 62,000 children.’ In addition, the quality of those services also
became inferior to those provided pre-Aguilar and to those provided
to public school children. Alternative delivery systems have
included mobile vans parked on public streets, portable classrooms
on neutral sites, instruction in public school buildings, and computer-
assisted instruction in private schools with no instructional personne!
present.’ Requiring students to leave their regular schools and travel

. U.S. Department of Education, Statement of the
Independent Review Panel of the National Assessment of Chapter
1, 57 (1993).

¥ General Accounting Office, Aguilar v. Felton
Decisions Continuing Impact on Chapter | Program, 5
(GAO/HRD-89-131BR, 1989).

: A. Russo, M. Haslam, The Uses of Computer
Assisted Instruction in Chapter | Programs Serving Sectarian
Private School Students, \7, 57-58 (U.S. Dept. of Education,
1992). Computer assisted instruction also has its problems. It is
not well integrated w’th regular school programs, frequently
neglects staff training and support, and is used primarily for drill

and practice in basic skills. /@. at iii. The contribution of computer

assisted instruction to students’ intellectual development and

to locations off-site interrupts the educational process, creates safety
concerns, and causes undue hardship on children.

Most importantly, even for those children who continue to
receive services, Aguilar’s continuing detrimental impact is that it
exacerbates the educational deficiencies of the children most in need
of help. Requiring services to be off-premises adds another layer of
disruption to the school day, requiring children to travel to alternative
education sites for their remedial instruction or receive less effective
instructional techniques. This further disadvantages these children
and further derogates the public interest in serving them. It is a
disservice to the public interest to invalidate in-school programs
which promote real educational, economic, and social values, and do
not, except by arrant speculation, in any way establish religion.

Following Aguilar, Congress attempted to ameliorate the
problems that Aguilar created. 20 U.S.C. § 2727(d)."” Between 1988

improved achievement is limited. /d. at 23.

- The Senate Labor and Human Resources
Committee reported:

To comply with the Supreme Court's decision [in
Aguilar v. Felton}, schools have had to implement
costly, disruptive, and creative procedures to serve

The Committee strongly believes that these
eligible children should be served. Service to
eligible private school children has been a
provision in law since its enactment in 1965. The
Committee is very concerned that efforts to
comply with the Supreme Court ruling have
resulted in a decline of about 35 percent in the
number of private school children who are served.

S. Rep. No. 100-222, 100th Cong., Ist Sess. 14, reprinted in, |988

U.S. Code Cong. & Ad. News 101, 114.

12

and 1993, Congress had appropriated over $180 million to help
defray the cost of capital expenses associated with alternative
delivery methods, such as mobile vans, and the leases of neutral sites
necessitated by Aguilar,'' money that could better have been used to
provide instructional services to both public and private school
students. Instead, the costs for alternative delivery methods decrease
the amount of funds available to provide instructional services for all
students, regardless of where they attend school.

What followed, predictably, was a spate of new litigation
which focused on the use of government-controlled mobile vans
being used for remedial education classrooms, other alternative
teaching methods, and the methods of cost allocation. A Missouri
district court invalidated both the parking of mobile vans on school
property, and the method of accounting for any additional costs to
provide these services. Pulido v. Cavazos, 728 F. Supp. 574 (W.D.
Mo. 1989). The district court came to the conclusion that a van

n M. Haslam, D. Humphrey, Chapter / Services to
Private Religious School Students, 4\ (U.S. Dept. of Education,
1993), (approximately $161 million had been appropriated for
capital expenses for fiscal years 1988-93). Subsequently, Congress
appropriated additional funds for capital expenses: $41.434 million
for fiscal year 1994, Pub. L. 103-112, 107 Stat. 1082, 1101 (1993);
$41. 434 million for fiscal year 1995, Pub. L. 103-333, 108 Stat.
2539, 2562 (1994); and $20 million for fiscal year 1996, Pub. L.
104-56, 109 Stat. 548 (1995). Perhaps appropriately, the extra
costs required to provide remedial education to needy parochial
school students as a result of this Court’s decision in Aguilar have
become known as “Felton costs.” These “Felton costs’ had to be
taken “off-the-top” of a state’s allocation of funds in order to
provide actual services equitably to all needy students. If these
costs were not taken off the top of the allocation of Title | funds,
but instead were assessed against the private school students’ share
of Title | funds, services might have to be discontinued for a year
or more. Many students would be unserved or would simply be
forced to leave their private schools.

13

parked directly in front of a parochial school, just a few steps from
the entrance, but outside the school’s property line, was
constitutional, while a van parked across campus, out of sight of the
school’s entrance, but on land owned by the school, violated the first
amendment. /d. at 587-93. On appeal, the Eighth Circuit upheld both
the use of mobile classrooms, no matter where parked, as well as the
cost allocation method. Pulido, 934 F.2d 912 (8th Cir. 1991). By
contrast, a Kentucky district court upheld the delivery of services in
off-premises mobile vans but invalidated the method of cost
allocation. Barnes v. Cavazos, No. C80-0501-L(A) (W.D. Ky. Feb.
21, 1990). The Sixth Circuit upheld the actual dollar allocation of
costs, based solely on the facts in that case, but did not address the
van placement issue. Barnes, 966 F.2d 1056 (6th Cir. 1992).

In yet another of Aguilar’s progeny, a district court concluded
that property boundaries do have constitutional significance for
placement of mobile vans. Walker v. San Francisco Unified School
District, 761 F. Supp. 1463, 1469-71 (N.D. Cal. 1991). But the
Walker court supported the constitutionality of the method of
financing. /d. at 1472. On appeal, the Ninth Circuit in Walker held
that the provision of Title | services in vans parked on parochial
school premises did not violate the Establishment Clause, and neither
did the monitoring of Title | teachers by their public-employee
supervisors. Walker v. San Francisco Unified School District, 46 F 3d
1449 (1995). In Board of Education v. Alexander, 983 F.2d 743 (7th
Cir. 1992), the Seventh Circuit resolved a similar challenge to the
way in which so-called “Felton” costs were taken off the top of a total
agency allotment under Title |, holding that that did not violate the
Establishment Clause.

Clearly, the continuing litigation of these questions, arising
as it does from Aguilar, has also had an adverse impact upon the
overall Title | program. That, and the adverse educational
consequences of off-premises teaching methods, reinforce the
conclusion that Aguilar must be overturned and the Lemon test
reformed.

14

Il. A New Approach to the Interpretation of the
Establishment Clause Must Be Undertaken Here.

This Court has regularly insisted upon history and experience
as its only reliable guides in the interpretation and application of the
Establishment Clause. Lynch v. Donnelly, 465 U.S. 668, 673-76
(1984). Unfortunately, consideration of the meaning of the Religion
Clauses frequently begins and ends with reference to Thomas
Jefferson’s “wall of separation” between church and state." “The
concept of a ‘wall’ of separation is a useful figure of speech. . . [b}ut
the metaphor itself is not a wholly accurate description of the
practical aspects of the relationship that in fact exists between church
and state.” Lynch, 465 U.S. at 673. It is often forgotten that the
Religion Clauses were themselves political compromises forged by
persons of different cultural, religious and regional experiences. No
one or another view predominated in fact. Even if Jefferson were the
benchmark, Jefferson’s view of religion and the state was one in
which religion played a central role in the order of society. Although
Jefferson opposed the establishment of any religion, he and other
founders believed that the interaction of religion and state brought
about and preserved moral values which were essential to civil
government. Jefferson, like others of his contemporaries, believed
that religion was important in the public and private lives of the
citizens of the state."

The history of the drafting and negotiations that led to the
wording of the Religion Clauses as finally adopted by the First
Congress is detailed in many texts. See Chester J. Antieu, Freedom
From Federal Establishment: Formation and Early History of the
First Amendment Religion Clauses, |\87-8 (1964). The process of
extensive compromise that resulted in the Establishment Clause

. See McCollum v. Board of Education, 333 U.S.
203, 244 n.8 (1948) (Reed, J., dissenting) (quoting 1802 Letter to
Danbury Baptist Churches in 8 The Writings of Thomas Jefferson
113 (Washington ed., 1861)).

3 PROCEEDINGS, EARL WARREN CONFERENCE ON
ADVOCACY, CHURCH, STATE AND POLITICS 79 (1981).

15

shows that it had two specific purposes: first, to prevent Congress
from establishing or favoring a national religion; and second, to
prevent Congress from interfering with the states’ policies with
regard to religion." The Framers of the Constitution, however, “had
no fear or jealously of religion itself, nor did they wish to see us an
irreligious people .. .” S. Rep. No. 376, 32d Cong. 2d Sess. 4 (1853)
( appointment and compensation of legislative chaplains); see also
Zorach v. Clauson, 343 U.S. 306, 312 (1952) (“The First
Amendment, however, does not say that in every and all respects
there shall be a separation of Church and State”). There was no
concern expressed during the first congressional debates that the
government might enact a law beneficial to religion or religious
institutions. | ANNALS OF CONGRESS 730-31 (Gales & Seaton eds.
1789).

History indicates that the Establishment Clause was intended
to prohibit the preference of one religion over another; it did not
forbid any assistance, regulation, or other interaction. Clearly the
Framers of the Religion Clauses in the First Congress allowed some
state involvement with religion, including payment for chaplains,
Marsh v. Chambers, 463 U.S. 783, 788 (1983), a Thanksgiving
Holiday, id. at 788, and inclusion of churches in land grants in the
Northwest Territories, Wallace, 472 U.S. at 100 (Rehnquist, J.,
dissenting). Benevolence toward religion was not perceived as an
evil. Rather, support and encouragement of religion was perceived
to be in the public good.

Into the sixteen simple words of text,'* the First Congress

oa | ANNALS OF CONGRESS 730-31 (Gales & Seaton
eds. 1789). At the time of the Constitutional Convention, there
was a wide diversity of views and practices among the states
regarding established religion. See 3 J. Elliot, DEBATES OF THE
FEDERAL CONSTITUTION 330 (2d ed. 1836) (Madison’s discussion
of freedom of religion in Virginia).

” “Congress shall make no law respecting an
establishment of religion or prohibiting the free exercise
thereof....” U.S. Const. amend. I.

Pra

16

subsumed centuries of contention about the appropriate relation
between religion and government. The Religion Clauses reflect the
experience of their Framers that an officially preferred or nationally
established religion generates religious intolerance and infringes upon
personal liberty. See, e.g., Abington Township, 374 U.S. at 228
(Douglas, J., concurring); Torcaso v. Watkins, 367 U.S. 488, 490
(1961). The Establishment Clause was not meant to drive a wedge
between church and state, but rather to avoid those relationships
between the two which pose a realistic threat of impairing religious
liberty. See Lynch, 465 U.S. at 683.

The Religion Clauses were included in the Bill of Rights:

[Not as protection from religion,
but rather as a protection for
religion. They were inserted in our
Constitution largely because its
framers felt that they were
important to ensure the continuance
and the strengthening of religion
which could not flourish under
American conditions if any State
Church were either provided for or
tolerated.

1 A. Stokes, CHURCH AND STATE IN THE UNITED STATES, 556 (1950).
While one of the signal purposes of the Religion Clauses is to protect
personal religious liberty, it is equally plain that one of the political
purposes of the Clauses was to preserve the integrity of religious and
governmental institutions. See Abington Township, 374 U.S. at 222
(government neutrality toward religion prevents powerful sects from
fusing governmental and religious functions, and protects the
freedom of religious observance from state compulsion), Everson v.
Board of Education, 330 U.S. 1, 15 (1947) (the federal government
structure protects public and religious organizations from interfering
with each other).

In her concurrence in Lynch v. Donnelly, Justice O’Connor’s
analysis of the Establishment Clause identified two evils that could

17

accompany the excessive involvement of religion in government and
government in religion: (1) the loss of political and institutional
autonomy; and (2) the loss of personal religious liberty. 465 U.S. at
687-88. The loss of institutional autonomy was not feared just for the
consequences for personal religious liberty, but “equally feared
because of its tendencies to political tyranny and subversion of civil
authority.” McGowan v. Maryland, 366 U.S. 420, 430 (1961). It is
important, therefore, as one considers the interests served by church
and state each to be independent and autonomous, that together they
share important responsibilities with deep roots in our national

Both components of the Religion Clauses, then, were meant
to work to the same end. Wisconsin v. Yoder, 406 U.S. 205 (1972).
If the Establishment Clause is read to reach results which cannot be
justified in terms of religious liberty, it fails to serve the intended
constitutional purpose. This is certainly the case when it is used to
invalidate governmental accommodation of activities conducted by
religious institutions which serve the public interest and which pose
no actual threat to religious freedom. Lemon, and of necessity
Aguilar, fail this test. They demand a scrutiny of a public program
without regard to its real purposes and effects, unguided by
constitutional tradition and unrestrained by any consideration of the
common good.

A. A New Interpretational Guide Should Be Rooted |
in the History of the Religion Clauses and
Capable of Consistent Application.

The Religion Clauses of the first amendment to the United
States Constitution must be read consistently with the goals outlined
above, as well as coherently in an internal sense. This is because, as
Justice Goldburg put it in Abington Township, the two Religion
Clauses “are to be read together, and in light of the single end which
they are designed to serve. The basic purpose. . . is to promote and
assure the fullest possible scope of religious liberty and tolerance for
all... .” Abington Township, 374 U.S. at 305 (concurring). In order
to do this, the Religion Clauses must be read with a view toward the
goals that the first amendment was intended to achieve. By use of

-_—

this framework, first amendment jurisprudence can develop free from
the spurious linguistic categories of “original” versus “contemporary”
construction, as well as placing the Court’s prior First Amendment
cases in a useful context that reads the Free Exercise Clause and the
Establishment Clause together.'*

In Lemon, this Court attempted that goal by reading together
the various strands of its jurisprudence. Lemon, 403 U.S. at 611-623.
However, the test chosen was not adequate for it lacked roots in
constitutional, as opposed to jurisprudential, precedent and, as
indicated above, weighted the scales of justice against cooperation in
the public interest. This Court has often said that the Constitution
forbids “sponsorship, financial support, and the active involvement
of the sovereign in religious activity,” Walz v. Tax Commission, 397
U.S. 664, 668 (1970), but has not been able to provide a means for
drawing these fine distinctions. Dissatisfied with Lemon, members
of this Court have struggled with whether Lemon, or a different test
or tests, shall apply.'’ The result has been a lack of coherence in

” Mark E. Chopko, /ntentional Values and the
Public Interest - A Plea for Consistency in Church/State Relations,
39 DePaul L. Rev. 1143, 1163 (1990). In this way, the approach
attempts to link this Court’s insistence that history be its guide
with the reality that contemporary society, incorporation under the
Fourteenth Amendment, and new problems require flexibility.
Rigid and narrow use of text and history limits the usefulness of a
test that is blind towards these realities. Ignorance of history
means that a test lacks roots in the very text it purports to interpret.
“Intentional values” is a way to bridge these two concerns.

y Compare Lamb's Chapel v. Center Moriches
Union Free School District, \13 §.Ct. 2141, 2148 & n.7 (1993),
with Zobrest v. Catalina Foothills School District, 113 S.Ct. 2462,
2464-69 (1993) (resolution of claim in Lamb's Chapel relies on
Lemon, seven days later, Zobrest decided without it). See also
Lynch v. Donnelly, 465 U.S. at 688 (O’Connor, J., concurring)
(endorsement test); County of Allegheny v. ACLU, 492 U.S. at 655,

660-61 (Kennedy, J.) (coercion test); Capital Square v. Pinette,
115 S.Ct. 2440, 2452 (1995) (O’Connor, J., concurring) (different

19

process even while there has been a substantial shift favoring
programs that are neutral towards religion.

In Zobrest v. Catalina Foothills School District, \\3 $.Ct.
2462 (1993), this Court found that a public school district’s payment
for a sign language interpreter for a hearing-impaired parochial!
school student, on the parochial school’s premises, did not violate the
Establishment Clause. The Court held that the interpreter could be
provided on premises because that “is part of a general government
program that distributes benefits neutrally” to those who qualify, even
if the religious school involved may tangentially benefit.” /d at
2467. Three years later, in Rosenberger v. Rector of the University
of Virginia, 115 S.Ct. 2510, 2521 (1996), the Court pointed to what
it termed a “central le.son” of its Establishment Clause decisions,
“that a significant factor in upholding governmentai programs in the
face of Establishment Clause attack is their neutrality towards
religion.” That principle of neutrality, the Court said, would be
served, rather than undermined, by taxpayer funding of a student
religious newspaper, where funding was provided to the student
religious organization on the same basis as it was to other student
groups. /d. at 2521.

This vital principle of neutrality is in no way reflected in
Aguilar. The program overturned in Aguilar provided benefits to
school children without reference to religion. Zobrest, | 13 S.Ct. at
2467-9. It did so following “neutral criteria and even-handed
policies.” Rosenberger, 115 S.Ct. at 2521. The 1985 Aguilar decision
then, is an example, not of the Court enforcing a requirement of
neutrality, but rather imposing a “quarantine[] from public benefits”
which it rejected in Roemer, 426 U.S. at 746. An increased focus on
authentic intentions of the First Amendment. A reliable test would
not need to rely exclusively on facial neutrality but could be applied
in more diverse contexts. The “neutrality” approach is but one piece
of a more complex puzzle. “Neutrality” tests the level of
involvement between religion and government, but the set of facts
and circumstances to be evaluated in the range of cases presented is

tests for various purposes).

20
far broader, and requires, in our view, a different analytical tool.

As a concomitant to the obligation of government not to
interfere with the institutional operation of religion, and the
obligation to ensure personal religious freedom, government also
bears an affirmative obligation to accommodate religion and religious
practice. This is true, first and foremost, because the Free Exercise
Clause affirmatively commits the government itself to religious
tolerance. Church of Lukumi Babalu Aye v. City of Hialeah, 113
S.Ct. 2217, 2234 (1993). This translates into a requirement of
“benevolent neutrality,” Walz, 397 U.S. at 669 (emphasis added), not
a requirement to ignore religious needs, Roemer, 426 U.S. at 736;
Hunt v. McNair, 413 U.S. 734 (1973). in Kiryas Joel, Justice Souter
noted that “government may (and sometime must) accommodate
religious practices and .. . may do so without violating the
Establishment Clause.” Kiryas Joel, 114 S.Ct. at 2492, quoting
Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U.S. 136,
144-45 (1987). The Establishment Clause simply does not require
the automatic invalidation of every cooperative effort between
religious and governmental entities. Abington Township, 374 U.S. at
294-96 (Brennan, J., concurring).

This is consistent with Congress’ decision to enact the
Religious Freedom Restoration Act, 42 U.S.C. § 2000bb ef seq., and
with the rationales of Sherbert v. Verner, 374 U.S. 398 (1963), and
Wisconsin v. Yoder, 406 U.S. 205 (1972). These manifest an
underlying recognition of an obligation on the part of our government
to accommodate its own practices and requirements to the religious
needs of citizens. This is because accommodation of government to
religious interests is important to a free society. Zorach, 343 U.S. at
313-14; see Walz, 397 U.S. at 689 (Brennan, J., concurring). Any
Religion Clauses test that does not respect the need for governmental
accommodation of religious beliefs and practices flies in the face of
the Framers’ intent, as well as the exigencies of a complex
contemporary society.

the state cannot sponsor one particular religious activity, or support
one to the detriment of others, or oppose any or all. Secondly and
simultaneously, the institutional autonomy of both governmental and
religious institutions must be protected. The burden to demonstrate
whether these goals have been impaired rests on the one challenging
the constitutionality of the program. These values underlie the
concerns expressed both in the generat:ve debates and conditions that
led to the First Amendment, and the opinions of this Court struggling
to apply those provisions.

The right to engage freely in religious activity and conduct is
sO important that any law “restrictive of religious practice, in this
society, must advance interests of the highest order.” Church of
Lukumi, 113 S.Ct. at 2237 (internal quotation marks omitted)
(quoting Yoder, 406 U.S. at 215). A state instrumentality cannot
“require[] religious exercise,” Lee v. Weisman, 505 U.S. 577, 594,
604 (1992). It also may not actually engage in it. Abington
Township, 374 U.S. at 305 (Goldberg, J., concurring). Public schools
are prohibited from “conveying or attempting to convey a message
that religion or any particular religious belief is favored or preferred.”
County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S.
at 593 (emphasis in original). These all reflect different facets of the
same idea - that personai religious freedom must be protected. They
must be protected against the state’s imposition of religion, coercion
to participate in religious activities, state action to prefer or favor a
religion, or, on the other hand, state action that would tend to impede
or damage the exercise of religious beliefs, even when the state also
has legitimate interests to be protected. See, e.g. Yoder, 406 U.S. at
214; Pierce v. Society of Sisters, 268 U.S. 510 (1925).

22

Personal religious freedom is not merely something tolerated
because the government has no interest in it. To the contrary, this
Court has held that the “Free Exercise Clause commits government
itself to religious tolerance, and upon even slight suspicion that
proposals for state intervention stem from animosity to religion or
distrust of its practices, all officials must pause to remember their
own high duty to the Constitution and to the rights it secures.”
Church of Lukumi, |13 S.Ct. at 2234 (emphasis added). After all, it
gave concern to those who drafted the Free Exercise Clause.” Bowen
v. Roy, 476 U.S. 693, 703 (1986). Our Constitution itself
affirmatively commits government to permit and protect religious
practice and religious tolerance, and provides a high degree of
protection for those practices.

At the same time. another of the purposes of the First
Amendment was to protect the institutional autonomy of both civil
and religious institutions. See, e.g., Abington Township, 374 U.S. at
222 (government neutrality toward religion prevents powerful sects
from bringing about a fusion of governmental and religious functions,
and also guarantees religious observance free of any compulsion from
the state). In Everson v. Board of Education, 330 U.S. at 15, the
Court quoted with approval a statement about the “interrelation of
these complementary clauses” from the Court of Appeal of South
Carolina rendered in 1843: “[t)}he structure of our government has, for
the preservation of civil liberty, rescued the temporal institutions
from religious interference. On the other hand, it has secured
religious liberty from the invasion of the civil authority.” Harmon v.
Dreher, \7 S.C. Eq. (Speers Eq.) 87, 120 (1843).

In Lynch v. Donnelly, Justice O’ Connor identified the loss of
political and institutional autonomy and the loss of personal religious
liberty as the consequences of a regime where religion and
government did not maintain their rightful roles and relations. 465
U.S. at 687-88. The loss of institutional autonomy was not feared by
the Framers simply because of its consequences for personal religious
liberty, but was “equally feared because of its tendencies to political
tyranny and subversion of civil authority.” McGowan, 366 U.S. at
430. For this reason, it has long been held that one of the principal

23

objectives of the Religion Clauses is to prevent, as far as possible, the
intrusion of both religious and political institutions into each other's
essential functions. '*

This basic proposition operates in both conceptual directions.
First, religion may not intrude into or take over the proper functions
of government. Kiryas Joel, 114 S.Ct. at 2484 (state statute is
“tantamount to an allocation of political power on a religious criterion
and neither presupposes nor requires government impartiality toward
religion . . [and so] . . . violates the prohibition against
establishment”), Larkin v. Grendel's Den. Inc., 459 U.S. 116 (1982)
(state statute gave religious groups a veto power over liquor license
applications). By the same token, government and its agents cannot
intrude into matters of religious belief, worship or governance.
Corporation of the Presiding Bishop of the Church of Jesus Christ of
Latter-Day Saints v. Amos, supra, (1987) (application of religious
exemption to Title VII's prohibition against religious discrimination
in employment to employment decisions of religious organization,
does not violate the Establishment Clause); NLRB v. Catholic Bishop
of Chicago, supra, (schools operated by church were not within the
jurisdiction granted to NLRB by National Labor Relations Act); Walz
v. Tax Commission, supra, (upholding tax exemptions for real
property held by religious organizations for worship purposes). If
neither form of intrusion by one institution into the other’s proper
area of operation or decision-making exists, or only a theoretical
possibility of such an intrusion exists, then the Establishment Clause
may not be violated. Zobrest v. Catalina Foothills School District,
supra.

The interrelationship of both of these facets, personal
religious freedom and protection of institutional autonomy, and the
need to make sure that both of these interests are simultaneously
balanced and protected, is a recurring theme in the Court’s Religion
Clauses cases. See, Wisconsin v. Yoder, supra, Abington Township

” This condition, we submit, is a joining of free
exercise and establishment clause concerns that cannot be
ee entanglement.” Supra,
note 6.

24

v. Schempp, supra, Everson v. Board of Education, supra. These
themes are rooted in the history of the constitutional text and are
applicable, as framed here, to a diverse array of problems. Lemon
pays lip service to these concerns but its tripartite test of purpose,
effect and entanglement has not proved capable of making the fine
distinctions that complex constitutional litigation requires.

It is equally clear, however, that tinkering with the Lemon test
itself will not solve the jurisprudential problem unless the Court also
makes clear that the burden of proof must remain on the challenger
of government aid programs, to demonstrate that the Establishment
Clause has been violated. See Legal Tender Cases, 79 U.S. (12
Wall.) 457 (1871). In Aguilar, the Court viewed the burden as being
on the schools and school board involved, to demonstrate that mo
publicly employed teacher could possibly ever convey a religious
message in the course of providing Title | services. Indeed, in the
absence of proof that this was impossible, the Court seemed to
assume that it would occur, and so found that the remedial education
program at issue there violated the Establishment Clause. Aguilar,
473 U.S. at 413-414. Justice Powell, concurring, found an
Establishment Clause violation inherent in the mere “risk of
governiment entanglement” in the program’s administration. /d. at
415 (Powell, J., concurring). It has been said in other cases that a
“state must be certain, given the Religion Clauses, that subsidized
teachers do not inculcate religion.” Meek v. Pittenger, 42\ U.S. 349,
371 (1975) (emphasis added).

The failing of this attimde toward burdens of proof was
sharply demonstrated by Justice O’Connor in her Aguilar dissent,
noting pointedly the utter lack of evidence in the record of even a
single instance of any problem. Aguilar, 473 U.S. at 424. Justice
Scalia delivered an extensive criticism of this requirement for “up-
front assurances” in his opinion in Kiryas Joel, 114 S.Ct. at 2513, et
seq. (concurring). Public supervision alone, particularly of other
public employees, should not automatically be assumed to create an
Establishment Clause violation. The question should be what the
evidence actually demonstrates, if anything, regarding attempts to
teach religion in government programs.

25

This is so, first, because there is no principled reason that the
burdens of proof in a Religion Clauses case should vary from those
in any other civil litigation context. Second, it appears that when the
Court has given consideration to this burdens-of-proof question, *
recognizes this very problem. For example, in Bowen v. Kendrick,
487 U.S. at 622, rather than concluding or assuming that the
Adolescent Family Life Act (“AFLA”), 42 U.S.C. § 300z et seq., had
the impermissible primary effect of establishing religion, the Court
remanded the matter to the trial court to make a factual record and
decide whether “particular AFLA grants have had” that effect. The
need for “detailed factual findings” was emphasized by Justice
O’Connor in her Bowen concurrence. /d. at 623. The need to resist
the sort of assumptions upon which the 1985 Aguilar opinion rests
was also emphasized by Justices Kennedy and Scalia, concurring in
Bowen, 487 U.S. at 624, and in Justice Scalia’s concurrence in Kiryas
Joel, 114 S.Ct. at 2513, et seg. Until the Court makes clear that the
burdens of proof rest on the challenger of th. governmental! program
in question, as it should, Lemon’s failings wili continue to bedevil the
development of Religion Clauses jurisprudence.

Ill. Aguilar Must be Overturned.

This Court should insist that a challenger must demonstrate
whether a substantial threat (either to personal religious freedom, or
of interference by one institution with another) is presented in the
case. If that threat were demonstrated to be both real and serious,
then a violation of the Religion Clauses would be shown. The
concer with actual and substantial threats, based on the facts, should
be uncontroversial as that standard applies in every other context.
Under the circumstances presented in this particular case, the
analytical process suggested here leads to the conclusion that a public
remedial program may constitutionaily be provided in religious
schools as was done before the 1985 Aguilar decision. That program
does not demonstrably threaten religious freedom and institutional
autonomy.

The Court should re-examine the record. There is still no

26

evidence of harm.'® On the other hand, the social and financial costs
and losses attendant upon Aguilar, ovtlined above, were set forth at
the time in Justice Rehnquist’s, O’Connor’s and Burger’s dissents in
that case, Aguilar, 473 U.S. at 419-431. They need not be repeated
here. Suffice it to say that the application of any arbitrary test that
sacrifices “the long-range interests of the country,” in Justice White's
words, is profoundly unwise and should not be deemed required by
our First Amendment. Committee for Public Education v. Nyquist,
413 U.S. 756, 820 (1973) (White, J., dissenting). Application of these
concepts to the present case provides an inescapable affirmative
answer to the question whether Aguilar should be overturned.

First, the provision of on-premises special education to
students at all parochial schools, taught by the same teachers, with the
same material, to reach the same goals, as used in public schools, is
genuinely neutral as regards religion. No religious practice or
concept is furthered thereby. As Justice O’Connor trenchantly
observed in her opinion in Kiryas Joel, 114 S.Ct. at 2498 (emphasis
in original):

The Religion Clauses prohibit the
government from favoring religion,
but they provide no warrant for
discriminating against religion. All
handicapped children are entitled by
law to government-funded special
education. . . . If the government

” “[A]bstract theories explaining why on-premises
instruction might possibly advance religion dissolve in the face of
experience in New York City.” Aguilar, 473 U.S. at 424
(O’Connor, J., dissenting). In the same case Chief Justice
Rehnquist criticized reliance on “gossamer abstractions” to
overturn a useful, neutral program. /d. at 421. Such real threats
are not to be found in cases of “attenuated financial benefit,” or
where violations of the Establishment Clause are found by exalting
“form over substance,” as the Court said in Zobrest, | 13 S.Ct. at
2469. Where no real and substantial threat is demonstrated, no
Religion Clauses violation is shown.

27

provides this education on-site at
public schools and at nonsectarian
private schools, it is only fair that it
provide it on-site at sectarian
schools as well.

Second, because religion-neutral material is being taught,
there simply is no real threat that either religious institutions or
governmental institutions could intrude into the proper areas of
activity of the other. Indeed, the fact that publicly-employed
supervisors would be supervising the activities of publicly-employed
special education teachers, on premises, demonstrates the
independence of these two individual spheres. Clearly, on-premises
special education presents no conceivable governmental threat to
personal religious freedom. After 19 years of on-premises services,
the lack of a single actual instance of any violation of Establishment
Clause principles, as was recognized even in concurring opinions,
Aguilar, 473 U.S. at 415, 421-31 (Powell, J., concurring; O'Connor,
J., dissenting), shows that the risk in this case is chimerical at best.

Finally, the obligation of government to accommodate
religious beliefs and practices should also weigh heavily in favor of
overturning Aguilar. As noted above, this Court has repeatedly
recognized this affirmative obligation. Since at least the 1920s, this
Court has recognized that the right of parents to direct the education
of their children is constitutionally protected. Meyer v. Nebraska,
262 U.S. 90 (1923); Pierce v. Society of Sisters, supra. And it is “‘the
best of our traditions’ to ‘accommodate[] the public service to the[]
spiritual needs [of our people}."” Zorach, 343 U.S. at 314. As this
Court has noted, protection of religious freedom predates “general
acknowledgement of the need for universal formal education . .

The values underlying [the Religion Clauses) have been zealously
protected, sometimes at the expense of other interests of admittedly
high social importance.” Yoder, 406 U.S. at 214. It follows that even
if the provision of on-premises special education in New York
parochial schools could be viewed to benefit those children, Catholic,
Jewish, Protestant and others alike, by permitting them to be helped
in their own schools as public school students now are, that .
accommodation is entirely reasonable. In fact, it is required if the

28

parental rights noted above are to be respected in a neutral fashion,
without impinging upon their childrens’ rights to the services
provided by Title I.

CONCLUSION

As Justice Scalia (joined by Chief Justice Rehnquist and
Justice Thomas) noted in Kiryas Joel, the 1985 opinion in Aguilar
was in fact affirmatively “hostile to our national tradition of
accommodation . . . [and] should be overruled at the earliest
opportunity.” Kiryas Joel, 114 S.Ct. at 2515. This is precisely that
opportunity. Aguilar must be overturned in a way which genuinely
reforms this Court’s analytical methods.

Respectfully submitted,

MARK E. CHOPKO*
General Counsel

JOHN A. LIEK WEG
Associate General Counsel!

JEFFREY HUNTER MOON
SOLICITOR

UNITED STATES

CATHOLIC CONFERENCE
3211 Fourth Street, N.E.
Washington, D.C. 20017
(202) 541-3300

February 28, 1997 * Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0023%3A21. Public record. Not legal advice.