Amicus Curiae Brief — Agostini v. Felton

In the

Supreme Court of the United States

October Term, 1996

+

RACHEL AGOSTINI, et al.,

Petitioners,

v.

BETTY-LOUISE FELTON, et al.,

Respondents.

ae

On Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

~~

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF PETITIONERS

—

OF COUNSEL *SHARON L. BROWNE

MARK T. GALLAGHER *Counsel of Record

2151 River Plaza Drive, 2151 River Plaza Drive,

Suite 305 Suite 305

Sacramento, California 95833 Sacramento, California 95833

Telephone: (916) 641-8888 Telephone: (916) 641-8888

Facsimile: (916) 920-3444 Facsimile: (916) 920-3444

Attorneys for Petitioners

iv :

QUESTIONS PRESENTED FOR REVIEW

Whether this Court should overrule its decision in

Aguilar v. Felton, 473 U.S. 402 (1985), which held that the

Establishment Clause prohibits the furnishing of Title |

remedial services to eligible parochial school children in the

same setting as their public school counterparts--on the

premises of the schools they attend

Whether Rule 60(b) of the Federal Rules of Civil

Procedure is a proper vehicle for obtaining the relief

petitioner seeks.

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ............ i

TABLE OF AUTHORITIES CITED................. ii

INTEREST OF AMICUS CURIAE .................. l

CPRGONS BELOW... wc ctcsevcdncuecuunpeeeeee 2

STATEMENT OF THE CASE .............-20000.- 2

SUMMARY OF ARGUMENT .................-65: 5

ARGUBGEMT .... cc ccvccccccaeseeuuenenee 7

I. THIS COURT SHOULD OVERRULE

LEMON V. KRUTZMAN ...............-. 7

A. The Application of the Lemon Test

Has Led to Inconsistent and

Conflicting ROWED... 00 scenescutones 8

B. Lemon's Uncertain Status

Has Created a Two-Tiered

System of Establishment Clause

a Pe ee ll

Il. THE DISTRIBUTION OF A GENERAL

GOVERNMENTAL BENEFIT IN A NEUTRAL

FASHION DOES NOT VIOLATE THE

ESTABLISHMENT CLAUSE ............ 17

CONCLEJSI «0. ccc ccncsvesveseuseeunneeee™ 19

-_—_—_———

TABLE OF AUTHORITIES CITED

Page

Aguilar v. Felton, 473 U.S.

Et i, 1,3-5,7-8, 10-11,17,19-20

Board of Education of Central School District

No. 1 v. Allen, 392 U.S. 236(1968) ............ . 10

Board of Education of Kiryas Joel Village

School District v.Grumet, US. ,114S.Ct

en Ra 4,11-13

Corporation of Presiding Bishop of Church

of Jesus Christ of Latter-Day Saints v.

Amos, 483 U.S. 327(1987)....................... 8

County of Allegheny v. American Civil Liberties

Union Greater Pittsburgh Chapter, 492 U.S. 573

EEE ES ee .., 8,12

Edwards v. Aguilar, 482 U.S. 578 (1987) ............. 9

Everson v. Board of Education of the Township

of Ewing, 330 U.S. 1 (1947) ................. 9-10,18

elton v. Secretary, United States Department of

Education, 739 F.2d 48 (2d Cir. 1984)............... 2

Glickman v. Wileman Brothers & Elliott, Inc.,

EEE EE l

Grumet v. New York State Education Department,

579 N.Y.S.2d 1004 (1992) ............... 14-15,17,19

iv

Page

Keller v. State Bar of California, 496 U.S. 1(1990)...... l

Lamb's Chapel v. Center Moriches Union Free

School District, 508 U $ 384(1993)....... 7-8,11-12,16

Lee v. Weisman, 505 U.S. 577 (1992) .............. 8,12

Lehnert v. Ferris Faculty Association, 500 U_S.

SPEED éntc dena saun kiss chen sees eeeeens l

Lemon v. Kurtzman, 403 US.

ee ee 1,3,5-9, 11-14, 16-17,19-20

Meek v. Pittenger, 421 U.S. 349(1975) ............. 10

Rosenberger v. Rector and Visitors of the University

of Virginia, 18 F.3d 279 (4th Cir. 1994) ............. 15

Rosenberger v. Rector and Visitors of the University

of Virginia, US. _, 115S. Ct. 2510(1995) 1,7,12,15-16

School District of City of Grand Rapids v.

ly Ge es Sa tens bhednceecancctas 4,10

Smith v. Regents of the University of

California, 4 Cal. 4th 843 (1992), cert.

denied, 510 U.S. __, 114 S. Ct. 181 (1993) ........... I

Wallace v. Jaffree, 472 U.S. 38 (1985).............. 8-10

Witters v. Washington Department of

Services for Blind, 474 U.S. 481 (1986) .......... 13,19

——

v

Page

Wolman v. Walter, 433 U.S. 229(1977) .......... .. 10

Zobrest v. Catalina Foothills Schoo! District,

8 I ee eee t uedtews 13,18-19

Zorach v. Clauson, 343 U.S. 306(1952) ............ 10

Statutes

Re ee 2

United States Constitution

ED Cul cae vw dod ek Wet eee cease 2,6,15,17

Rules

E-is Dae bn oon UTE eee boos tokio hes cceketen l

Fed. Rules of Civ. Proc. 60(b).. =. «ssi(‘;t;tOt;##t##. i,4-5

Miscellaneous

Daniel L. Conckle, Lemon Lives: Religion

and the Public Schools After Lee v. Weisman,

43 Case W. Res. L. Rev. 865(1993) ................ 11

Derrick R. Freijomil, Has the Court Soured on

Lemon? A Look into the Future of Establishment

Clause Jurisprudence, 5 Seaton Hall Const. LJ.

RE a a Re 4

vi

Michael W. McConnell, Stuck with a Lemon,

A New Test for Establishment Clause Cases

Would Help Ease Current Confusion,

v°YE peeeeep eres 9,16

Jill M. Misage, Refusing to Abandon a Real

Lemon of a Test, 28 Wake Forest L. Rev.

GOPUE 006 060660 URUMAER 4040 6 eebeceesccess 4

Richard S. Myers, A Comment on the Death

of Lemon: Religion and the Public Schools After

Lee v. Weisman, 43 Case W. Res. L. Rev. 903

SER Sccéexesercdendeciackesbankactens beers 11-12

Michael Stokes Paulsen, Lemon Is Dead:

Religion and the Public Schools After

Lee v. Weisman, 43 Case W. Res. L. Rev. 795

RE Ss Ss 11

Pat Robertson, Squeezing Religion Out of the

Public Square--the Supreme Court, Lemon,

and the Myth of the Secular Society, 4 Wm.

& Mary Bill of Rights J. 223 (1995)................. 9

Scott S. Thomas, Beyond a Sour Lemon: A Look

at Grumet v. Board of Education of the Kiryas

Joel Village School District, 8 B.Y.U. J. Pub.

CURES on eee et Aa 9

l

INTEREST OF AMICUS CURIAE

Pursuant to United States Supreme Court Rule 37, Pacific

Legal Foundation (PLF) respectfully submits this brief amicus

curiae in support of petitioners Rachel Agostini, ef a/. Written

permission from all parties to file this brief has been lodged

with the Clerk of the Court.

PLF is a nonprofit, tax-exempt organization incorporated

under the laws of California for the purpose of participating

nationally in litigation matters affecting the public interest.

PLF has over 25,000 supporters nationwide. PLF policy is set

by a Board of Trustees composed of concerned citizens, many

of whom are attorneys. The Board of Trustees has authorized

the filing of a brief amicus curiae in this matter. PLF has a

long-standing interest in cases arising under the First

Amendment to the United States Constitution. For example,

PLF attorneys were the attorneys of record in Keller v. State

Bar of California, 496 U.S. 1 (1990), and Smith v. Regents of

the University of California, 4 Cal. 4th 843 (1992), cert. denied,

S10US.__, 114 S. Ct. 181 (1993). PLF also participated as

amicus curiae in Lehnert v. Ferris Faculty Association,

500 U.S. 507 (1991), Rosenberger v. Rector and Visitors of the

University of Virginia, US. _,115S. Ct. 2510(1995), and

Glickman v. Wileman Brothers & Elliott, Inc., No. 95-1184.

PLF believes that its public policy perspective and

litigation experience will provide an additional viewpoint on

the issues presented in this case. Specifically, PLF will

advocate the overturning of both Aguilar v. Felton and

Lemon v. Kurtzman, 403 U.S. 602 (1971), and urge this

Court to uphold governmental programs, such as the one at

issue in this case, that provide a benefit to a large group of

people in a manner that is neutral toward religion.

2

OPINIONS BELOW

Both the District Court’s Order and the Second Circuit

Court of Appeals’ Summary Order are unreported. The

opinions are attached to the appendix to the Petition for a

Writ of Certiorari.

STATEMENT OF THE CASE

In 1985, this Court used the Establishment Clause of

the First Amendment to the United States Constitution' to

strike down an educational program that had admittedly

“*done so much good and little, if any, detectable harm.’”

Aguilar v. Felton, 473 U.S. 402, 415 (1985) (Powell, J.,

concurring) (quoting Felton v. Secretary, United States

Department of Education, 739 F.2d 48, 72 (2d Cir. 1984).

Title I of the Elementary and Secondary Education Act

disperses federal funds to local school districts in order to

meet the educational needs of children from low-income

families. Beginning in 1966, and pursuant to congressional

intent, 20 U.S.C. § 632(a), New York City used Title I

funding to provide educational assistance to parochial school

children in parochial school classrooms. Under the New

York program, public school teachers who volunteered to

teach in parochial schools, would teach such secular subjects

as remedial reading, remedial skills, remedial mathematics,

and English as a second language.

The city took reasonable steps to ensure that this

needed educational program did not run afoul of the

Establishment Clause. The public school teachers were told

to avoid becoming involved with religious activities that

' The Establishment Clause provides that “Congress shall make

no law respecting an establishment of religion ....”. U.S. Const.

Amend |.

3

occurred on the parochial school grounds and to bar religious

materials from the classroom. In addition, the parochial

schools were required to remove all religious symbols from

the classroom before the public school teachers arrived. To

ensure compliance with these polices, the teachers were

monitored by field personnel, who attempted to visit each

classroom once a month. These field supervisors reported to

program coordinators who also made unannounced visits to

the parochial school classrooms.

Despite these safeguards, this Court found that New

York’s program violated the Establishment Clause. Aguilar,

473 U.S. at 414. Employing the doctrinal framework first

articulated in Lemon v. Kurtzman,’ this Court concluded that

the supervisory system used by New York “inevitably results

in the excessive entanglement of church and state.” Aguilar,

473 U.S. at 409. In holding that the monitoring and

supervision of teachers resulted in the excessive entanglement

of church and state the Court took “advantage of [a] “Catch-

22’ paradox of its own creation, whereby aid must be

supervised to ensure no entanglement but the supervision

itself is held to cause an entanglement.” /d. at 420

(Rehnquist, J., dissenting). Moreover, any unwarranted

entanglement in the case was merely hypothetical given that

the evidence demonstrated that “‘in 19 years there has never

been a single incident in which a Title I instructor ‘subtly or

overtly’ attempted to ‘indoctrinate the students in particular

religious tenets at public expense.’” Jd. at 424 (O’Connor,

J., dissenting).

? Under the Lemon test in order to survive attack under the

Establishment Clause a statute must: (1) have a secular

purpose, (2) have a primary effect that neither advances nor

inhibits religion, and (3) not excessively entangle the

government in religion. Lemon v. Kurtzman, 403 U.S. at 612-

13.

4

The Aguilar decision has been criticized by both

commentators and members of this Court. In 1994, less than

a decade after the decision was rendered, five members of

this Court explicitly called for a reconsideration of the

Aguilar decision. “The court should, in a proper case, be

prepared to reconsider Aguilar, in order to bring our

Establishment Clause jurisprudence back to what I think is

the proper track--government impartiality, not animosity,

towards religion.” Board of Education of Kiryas Joel Village

School District v. Grumet, U.S. _, 1148. Ct. 2481, 2498

(1994) (O’Connor, J., concurring). “The decisions in Grand

Rapids (School District of Grand Rapids v. Ball, 473 U.S.

373 (1985)] and Aguilar may have been erroneous. In light

of the case before us, and in the interest of sound elaboration

of constitutional doctrine, it may be necessary for us to

reconsider them at a latter date.” Grumet, 114 S. Ct. at 2505

(Kennedy, J., concurring). “I heartily agree that these cases,

[School District of Grand Rapids v. Ball, 473 U.S. 373, and

Aguilar| so hostile to our national tradition of

accommodation, should be overruled at the earliest

opportunity.” Grumet, 114 S. Ct. at 2515 (Scalia, J.,

dissenting) (joined by the Chief Justice and Justice Thomas).

In 1995, the petitioners initiated this case by filing a

motion for relief pursuant to Rule 60(b) of the Federal Rules

of Civil Procedure. This motion was based on the fact that

five Justices had expressed their desire to reconsider and

overrule Aguilar. Although the District Court denied the

motion it noted that the petitioners "should be permitted to

seek the reconsideration of Aguilar that a majority of the

Supreme Court appears willing, if not anxious, to

undertake.” Petition for a Writ of Certiorari at 10a (quoting

Memorandum and Order 78-CV-1750 (JG)). The Second

Circuit Court of Appeals summarily affirmed the District

Court’s order.

| .

5

On January 17, 1997, this Court granted the writ of

certiorari in order to consider the following questions:

(1) Whether this Court should overrule its decision in

Aguilar v. Felton, and (2) “Whether Rule 60(b) of the

Federal Rules of Civil Procedure is a proper vehicle for

obtaining the relief Petitioner seeks.”> 473 U.S. 402.

SUMMARY OF ARGUMENT

This Court granted the petition for writ of certiorari in

this case, in part, to determine whether the decision in

Aguilar v. Felton was erroneous. The Aguilar decision was the

unfortunate by-product of an earlier decision of this Court. In

Lemon v. Kurtzman, this Court articulated a three-part test to

evaluate possible Establishment Clause violations. Applying

the Lemon framework in Aguilar, this Court concluded that

New York City’s Title I funding program violated the

Establishment Clause because it resulted in the excessive

entanglement of church and state. In reconsidering Aguilar,

this Court should also reconsider the source of that unfortunate

decision; Lemon v. Kurtzman. Instead of applying, and as a

result compelling lower.courts to apply, the Lemon test in

Establishment Clause cases, this Court should evaluate

governmental programs challenged under that clause to

ascertain whether they ar2 neutral toward religion.

The Lemon test should be overruled for a number of

reasons. The test has led to inconsistent, and often inexplicable

results. The use of this test has created a bizarre judicial

landscape where, for example, government is free to lend text

books to religious schools, but it is not free to lend maps, or

similar educational materials to those same schools. The

strange results caused by the Lemon test are more than

* Pacific Legal Foundation takes no position on the propriety

of using Rule 60(b) to obtain the requested relief.

6

adequately demonstrated by the facts of this case, where public

school teachers are barred from entering parochial school

classrooms in order to provide instruction in such nonreligious

subjects as math and reading, but those same teachers can give

those same lessons to those same parochial school children so

long as they provide this instruction in a van parked off the

parochial school grounds.

Lemon should also be overruled in order to provide a

uniform framework for the evaluation of claims brought under

the Establishment Clause. The Lemon mode of analysis has not

been formally repudiated by this Court; however, recent

decisions have failed to rely on the test. Instead of funneling

Establishment Clause claims through the familiar three prongs

of Lemon, this Court has instead asked whether the

government's action endorses religion, coerces people into

religious participation, or acts neutrally toward religion.

Although this Court appears to have abandoned the Lemon test,

lower courts continue to apply that framework. A two-tiered

system of Establishment Clause jurisprudence has emerged,

with this Court applying one standard of review and the lower

courts applying a very different mode of analysis. The

overruling of Lemon would establish a uniform standard of

constitutional review.

In recent Establishment Clause cases, this Court has

explained that government programs that neutrally provide

benefits to a large class of citizens do not offend the First

Amendment simply because a religious institution might

receive a benefit. This Court should expressly declare that the

neutrality test, and not the test announced in Lemon, should be

used to determine whether the Constitution has been violated .

The Title I program, as it is administered by New York City,

provides a neutral benefit to a large group of similarly situated

school children. The program neither discriminates against, nor

favors, children that happened to attend parochial schools.

7

Rather, it treats these students the same way it treats their

public school counterparts. Because this program neutrally

provides a benefit to the educationally deprived children of

New York it does not violate the Establishment Clause.

ARGUMENT

I

THIS COURT SHOULD

OVERRULE LEMON V. KURTZMAN

This Court’s Establishment Clause jurisprudence is in

“hopeless disarray.” Rosenberger v. Rector and Visitors of the

University of Virginia, 115 S. Ct. at 2532 (Thomas, J.,

dissenting). Undoubtably, the overruling of Aguilar will go a

long way toward restoring some semblance of order to this area

of the law. The erroneous Aguilar decision is, however,

symptomatic of a larger problem; the three-part test announced

in Lemon v. Kurtzman. The Court in Aguilar applied the

Lemon test and concluded that the New York Title I program

caused the excessive entanglement of church and state.

Aguilar, 473 U.S. at 409. Although the New York Title I

program provided a neutral benefit to all similarly situated

schoo! children, the Aguilar court found that this program was

inconsistent with the command of the Establishment Clause.

Id. at 414. As with Aguilar, members of this Court have called

for the repudiation of the Lemon decision. "Over the years,

however, no fewer than five of the currently sitting Justices

have, in their own opinions, personally driven pencils through

the creature's [Lemon] heart, and a sixth has joined an opinion

doing so." Lamb's Chapel v. Center Moriches Union Free

8

School District, 508 U.S. 384, 398 (1993) (Scalia, J.,

dissenting).*

For the reasons that follow this Court should explicitly

overrule both Aguilar and Lemon and put an end to “the strange

Establishment Clause geometry of crooked lines and wavering

shapes” these cases have produced. Lamb's Chapel v. Center

Moriches Union Free School District, 508 U.S. at 399 (Scalia,

J., dissenting).

A. The Application of the

Lemon Test Has Led to

Inconsistent and Confusing Results

The three-pronged Lemon test has been the subject of

criticism ranging from the horrific’ to the (semi) comical.® The

* Citing Lee v. Weisman, 505 U.S. 577, 631 (1992) (Scalia, J.,

joined by Thomas, J., dissenting); County of Allegheny v.

American Civil Liberties Union Greater Pittsburgh Chapter,

492 U.S. 573, 655-57 (1989) (Kennedy, J., concurring in

judgment in part and dissenting in part); Corporation of

Presiding Bishop of Church of Jesus Christ of Latter-Day

Saints v. Amos, 483 U.S. 327, 346-49 (1987) (O’Connor, J.,

concurring); Wallace v. Jaffree, 472 U.S. 38, 107-13 (1985)

(Rehnquist, J., dissenting); Wallace, 472 U.S. at 90-91 (White,

J., dissenting).

* “Like some ghoul in a late-night horror movie that repeatedly

sits up in its grave and shuffles abroad, after being repeatedly

killed and buried, Lemon stalks our Establishment Clause

jurisprudence once again, frightening little children and school

attorneys of Center Moriches Union Free School District.”

(continued...)

9

doctrine’s harshest critics, however, have been the members of

this Court. “Our cases interpreting and applying the purpose

test have made such a maze of the Establishment Clause that

even the most conscientious governmental officials can only

guess what motives will be held unconstitutional.” Edwards v.

Aguilar, 482 U.S. 578, 636 (1987) (Scalia, J., dissenting). “If

a constitutional theory has no basis in the history of the

amendment it seeks to interpret, is difficult to apply and yields

unprincipled results, I see little use in it.” Wallace v. Jaffree,

472 US. at 112 (Rehnquist, J., dissenting).

The bulk of criticism leveled at the Lemon test focuses

on the inconsistent decisions spawned by the application of this

test. Cases decided under Lemon are not only inconsistent with

each other, they also contradict cases decided prior to the

adoption of the test. Nowhere has this inconsistency been

greater than in the area of religious schools. Twenty-five years

after the announcement of the Lemon test we know that it is

constitutional for the government io pay for bus transportation

to and from parochial schools. Everson v. Board of Education

*(...continued)

Lamb's Chapel v. Center Moriches Union Free School District,

508 U.S. at 398 (Scalia, J., dissenting).

* Jill M. Misage, Refusing to Abandon a Real Lemon of a Test,

28 Wake Forest L. Rev. 775 (1993); Derrick R. Freijomil, Yas

the Court Soured on Lemon? A Look into the Future of

Establishment Clause Jurisprudence, 5 Seaton Hall Const. L.J.

141 (1994); Michael W. McConnell, Stuck with a Lemon,

A.B.A. J. at 46 (Feb. 1997); Scott S. Thomas, Beyond a Sour

Lemon: A Look at Grumet v. Board of Education of the Kiryas

Joel Village School District, 8 B.Y.U. J. Pub. L. 531 (1994);

Pat Robertson, Squeezing Religion Out of the Public Square-—-

the Supreme Court, Lemon, and the Myth of the Secular

Society, 4 Wm. & Mary Bill of Rights J. 223 (1995).

10

of the Township of Ewing, 330 U.S. 1, 17 (1947). However, it

is unconstitutional for the state to fund bus transportation from

parochial schools to museums, or other school field trip

destinations. Wolman v. Walter, 433 U.S. 229, 252-55 (1977).

Sir larly, the Establishment Clause does not bar the state from

loaning text books to children attending religious schools,

Board of Education of Central School District No. 1 v. Allen,

392 U.S. 236, 238 (1968), so long as the state does not lend

workbooks in which the parochial school children write.

Wallace, 472 U.S. at 110 (Rehnquist, J., dissenting) (citing

Meek v. Pittenger, 421 U.S. 349, 354-55 (1975)). The

Establishment Clause does bar the state from lending maps to

children attending religious schools. Wolman, 433 U.S. at 249.

Although there is no constitutional objection to public schools

releasing students during the school day to receive religious

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

Constitution does bar public school teachers from teaching

secular subjects in parochial school classrooms. School District

of City of Grand Rapids v. Ball, 473 U.S. 373 (1985).

One need look no further than the facts of this case to see

the strange results the Lemon test has generated. In Aguilar the

Court held that public school teachers could not teach secular

subjects in parochial classrooms. This ruling forced school

districts throughout the nation to dream up creative ways to

provide sorely needed educational assistance to children

attending parochial schools. These solutions included the use

of mobile instructional units or vans parked off the parochial

school grounds and the use of computer assisted instruction. In

essence, Aguilar stands for the proposition that the

Establishment Clause is not violated when a public school

teacher provides assistance to a parochial school student, so

long as the teacher does not provide that instruction on the

grounds of the parochial school. It is difficult to see how one

of these methods of instruction might lead to the establishment

11

of one national religion, while the other method presents no

such danger.

Recognizing the confusion that Lemon has caused,

members of this Court have suggested that the test be replaced

by a more workable, unified standard. “As the Court’s opinion

today shows, the slide away from Lemon's uritary approach is

well under way. A return to Lemon, even if possible, would

likely be futile, regardless of where one stands on the

substantive Establishment Clause questions.” Board of

Education of Kiryas Joel Village School District v. Grumet,

114 §. Ct. at 2500 (O’Connor, J., concurring). “I will decline

to apply Lemon--whether it validates or invalidates the

government action in question--and therefore cannot join the

opinion of the Court today.” Lamb's Chapel v. Center

Moriches Union Free School District, 508 U.S. at 399-400

(Scalia, J., concurring in the judgment). Reconsideration of

the Aguilar decision provides this Court with an opportunity to

take stock of its Establishment Clause jurisprudence. This

Court should take full advantage of this opportunity by

expressly overruling Lemon v. Kurtzman.

B. Lemon’s Uncertain Status

Has Created a Two-Tiered

System of Establishment Clause Jurisprudence

The status of the Lemon test has been the subject of much

speculation in recent years.’ Although the test has not received

” Compare, Michael Stokes Paulsen, Lemon Is Dead: Religion

and the Public Schools After Lee v. Weisman, 43 Case W. Res.

L. Rev. 795 (1993), with, Daniel O. Conckle, Lemon Lives:

Religion and the Public Schools After Lee v. Weisman, 43 Case

W. Res. L. Rev. 865 (1993); Richard S. Myers, A Comment on

(continued...)

12

a formal eulogy from this Court, it has lapsed into an extended

period of disuse. Instead of applying the Lemon analysis in

cases raising the Establishment Clause, this Court has instead

asked whether the governmental action is neutral towards

religion, Rosenberger v. Rector and Visitors of the University

of Virginia, 115 S. Ct. at 2521, whether the government’s

action coerces anyone to support or participate in a religious

exercise, Lee v. Weisman, 505 U.S. at 587, or whether the

government's action could be viewed as an endorsement of a

particular religious belief or message. County of Allegheny v.

American Civil Liberties Union Greater Pittsburgh Chapter.

The Lemon doctrine has been highly criticized and infrequently

used by this Court, yet, somehow it has managed to survive.

“Lemon, however frightening it might be to some, has not been

overruled.” Lamb's Chapel v. Center Moriches Union Free

School District, 508 U.S. at 395 n.7. “I write separately only

to note my disagreement with any suggestion the today’s

decision signals a departure from the principles described in

Lemon v. Kurtzman.” Board of Education of Kiryas Joel

Village School District v. Grumet, 114 S. Ct. at 2494

(Blackmun, J., concurring). “Thus we do not accept the

invitation of petitioners and amicus the United States to

reconsider our decision in Lemon v. Kurtzman.” Lee, 505 US.

at 587.

Although Lemon has fallen out of favor with this Court,

it is still routinely applied by lower state and federal courts

which are required to apply the three-part test until it is

expressly overruled by this Court. The uncertainty surrounding

the applicability of Lemon has led to a two-tiered system of

Establishment Clause jurisprudence, with lower courts applying

the Lemon framework and this Court applying a different test.

"(...continued)

the Death of Lemon: Religion and the Public Schools After

Lee v. Weisman, 43 Case W. Res. L. Rev. 903 (1993).

|

13

The discordant results achieved by this split level system can be

seen by evaluating this Court’s most recent Establishment

Clause cases.

Zobrest v. Catalina Foothills School District, 509 U.S. |

(1993), involved a challenge by a deaf student to a school

district’s refusal to provide him with a sign-language interpreter

to translate in a Roman Catholic high school. The school

district contended that the Establishment Clause prohibited it

from providing the requested interpreter. The Ninth Circuit

Court of Appeals applied the Lemon test and concluded that

because the interpreter would have the primary effect of

advancing religion, the placement of the interpreter in the

Zobrest, 509 U.S. at 6 (citing Zobrest, 963 F.2d 1190 (9th Cir.

1992)). This Court granted certiorari and reversed finding that

because the interpreter was a neutral benefit available to all

handicapped children in the school district, regardless of the

sectarian or nonsectarian nature of their school, the

Establishment Clause was not violated.

When the government offers a neutral service on

the premises of a sectarian school as part of a

general program that “is in no way skewed towards

religion” it follows under our prior decisions that

provision of that service does not offend the

Establishment Clause.

Zobrest, 509 U.S. at 10 (quoting in part Witters v. Washington

Department of Services for Blind, 474 U.S. 481, 488 (1986)).

A similar analysis was employed in Board of Education

of Kiryas Joel Village School District v. Grumet, 114 S. Ct.

at 2481. There, taxpayers brought an action challenging the

constitutionality of a New York statute that created a special

school district for members of the Satmar Hasidim religion.

14

The state trial court found that the statute failed all three prongs

of the Lemon test, therefore, violating the Establishment

Clause. Grumet, 114 S. Ct. at 2487 (citing Grumet v. New York

State Education Department, 579 N.Y .S.2d 1004 (1992)). The

primary effect of advancing religion, id (citing 592 N.Y.S.2d

123 (1992), and state Court of Appeals agreed. Jd 81 N.Y.2d

518, 601 N.Y.S.2d 61, 618 N_E.2d 94 (1993)).

This Court chose not to apply the Lemon test, but instead

rested its decision on the fact that the statute in question

extended a governmental benefit in a nonneutral fashion.

Although this Court ultimately agreed with the conclusions of

the three lower courts, it did so by employing a different

analysis.

One aspect of the Court’s opinion in this case is

worth noting: Like the opinions in two recent

cases, Lee v. Weisman, Zobrest v. Catalina

Foothills School District, and the case I think is

most relevant to this one, Larson v. Valente, the

Court’s opinion does not focus on the

Establishment Clause test we set forth in Lemon v.

Kurtzman.

Grumet, 114 S. Ct. at 2498 (O’Connor, J., concurring)

(citations omitted).

The inefficiency of using one test throughout the lower

courts, only to change the analysis when the case reaches the

Nation’s highest court, was not lost on the dissenting Justices.

[T]he Court’s snub of Lemon today (it receives only

two “see also citations, in the course of the

opinion’s description of Grendal’s Den) is

particularly noteworthy because all three courts

15

below (who are not free to ignore Supreme Court

precedent at will) relied on it, and the parties (also

bound by our case law) dedicated over 80 pages of

briefing to the application and continued Vitality of

the Lemon test. In addition to other sound reasons

for abandoning Lemon it seems quite inefficient for

this Court, which relies heavily on the briefing of

the parties and, to a lesser extent, the opinions of

lower courts, to mislead lower courts and parties

about the relevance of the Lemon test.

Id. at 2515 (Scalia, J., dissenting),

A case decided during the 1994-95 term arrived at the

Court in similar fashion. In Rosenberger v. Rector and Visitors

of the University of the Virginia, a student Christian newspaper

filed suit against the University of Virginia claiming that the

University’s decision to deny student funds constituted

impermissible viewpoint discrimination in violation of the First

Amendment's Free Speech Clause. The University defended

its denial of funding by claiming that allowing student funds to

flow to a religious newspaper would violate the First

Amendment’s Establishment Clause. The Court of Appeals

ruled for the University, finding that its discriminatory funding

practices were justified by the “compelling interest in

maintaining strict separation of church and _ state.”

court relied upon the three-part Lemon test and found that the

funding of a religious newspaper would excessively entangle

the University with the propagation of the Christian religion.

eT Te ED

16

When the case reached this Court, however, the standard

of review employed to detect a violation of the Establishment

Clause changed dramatically. Instead of attempting to ascertain

whether state and church had become impermissibly entangled,

this Court simply assured itself that the governmental program

was neutral toward religion. “A central lesson of our decisions

is that a significant factor in upholding governmental programs

in the face of Establishment Clause attack is their neutrality

towards religion.” Rosenberger, 115 S. Ct. at 2521. Satisfied

that the funding scheme was neutral toward religion, the Court

concluded that funding of the Christian paper was not

prohibited by the Establishment Clause. /d. at 2522.

In each of these cases the lower courts reviewed the

Establishment Clause issue under the Lemon test, and in each

of these cases this Court employed a different standard of

review to determine whether that clause had been violated.

Nor do these cases represent isolated incidents, all of the

federal Circuit Courts of Appeals and numerous state Supreme

Courts have concluded in the past few years that the Lemon test

remains the law. Michael W. McConnell, Stuck with a Lemon,

A New Test for Establishment Clause Cases Would Help Ease

Current Confusion, A.B.A. J. at 47. Not only is this dual

regime inefficient and confusing for courts and attorneys, it also

makes the level of constitutional protection vary depending on

the procedural posture of each case. Recent decisions of this

Court seem to suggest that the Court has abandoned the Lemon

method of constitutional analysis; lower courts, however, do

not enjoy this luxury. Until this Court expressly declares that

Lemon is no longer the law, courts throughout the county will

continue to scrutinize fact patterns in search of secular

purposes, primary effects, and excessive entanglements.

* Compare, however, Lamb's Chapel, 508 U.S. at 395, where

this Court applied Lemon, even though the lower court had

neglected to mention it.

17

This Court should explicitly overrule Lemon in order to

end the current two-tiered system of Establishment Clause

jurisprudence. This Court should also overrule Aguilar and

hold that so long as the government provides benefits in a

neutral manner, the Establishment Clause is not offended

merely because a religious institution might be one of the

recipients of this benefit.

II

THE DISTRIBUTION OF A

GENERAL GOVERNMENTAL BENEFIT

IN A NEUTRAL FASHION DOES NOT

VIOLATE THE ESTABLISHMENT CLAUSE

When the government offers a neutral service that is not

designed to help religion, the evil sought to be avoided by the

Establishment Clause, the establishment of a national church,

is simply not implicated. The First Amendment prohibits

government from favoring religion, it does not, however,

require government to discriminate against religion. “The

Establishment Clause does not demand hostility to religion,

religious ideas, religious people, or religious schools.”

Grumet, 114 S. Ct. at 2498 (O’Connor, J., concurring). The

neutrality test ensures that the government does not favor a

particular religion, see Grumet, 114 S. Ct. at 2494, at the same

time, the test does not force government to discriminate against

religiods institutions.

The Establishment Clause sets forth a simple mandate,

when government inevitably interacts with religion, it must

remain neutral in its dealings with the church. Because New

York's--as well as Congress'--desire to use Title I moneys to

allow public school teachers to teach in parochial school

classrooms evidences neither favoritism nor hostility towards

religion, but is instead a neutral program, it does not violate the

Establishment Clause.

18

It has long been recognized by this Court that the First

Amendment requires the government to remain neutral toward

religion.

That amendment requires the state to be neutral in

its relations with groups of religious believers and

non-believers; it does not require the state to be

their adversary. State power is no more to be used

so as to handicap religions, than it is to favor them.

Everson v. Board of Education of the Township of Ewing,

330 U.S. at 18. More recently, the Court has guarded against

Establishment Clause violations by determining whether the

challenged government program was neutral in its dealings with

religion. “[W]e have consistently held that government

programs that neutrally provide benefits to a broad class of

citizens defined without reference to religion are not readily

subject to an Establishment Clause challenge just because

sectarian institutions may also receive an attenuated financial

benefit.” Zobrest, 113 S. Ct. at 2466. “But the principle

[neutrality] is well grounded in our case law, as we have

frequently relied explicitly on the general availability of any

benefit provided religious groups or individuals in turning aside

Establishment Clause challenges.” Grumet, 114 S. Ct. at 2491.

The Title I program at issue in this case is part of a

general governmental program designed to distribute benefits

equally to a large class of citizens. Title I authorizes the

Secretary of Education to disperse funds to local school

districts in order to help meet the needs of educationally

deprived children. The City of New York makes the benefits

of this program to all eligible children, neither favoring nor

discriminating against children attending parochial schools.

As with the sign-language interpreter in Zobrest, here the state

19

is simply offering “a neutral service on the premises of a

sectarian school as part of a general program that ‘is in no way

skewed towards religion.”” Zobrest, 509 U.S. at 10 (quoting in

part Witters v. Washington Department of Services for Blind,

474 U.S. at 488). The offering of this service does not run

afoul of the Establishment Clause.

Had Aguilar originally been decided under the neutrality

test, as opposed to the three-part Lemon test, the decision

would have undoubtably been different. “This court should, in

a proper case, be prepared to reconsider Aguilar, in order to

bring our Establishment Clause jurisprudence back to what I

think is the proper track--government impartiality, not

animosity, towards religion.” Grumet, 114 S. Ct. at 2498

(O’Connor, J., dissenting). This Court now has an opportunity

to reevaluate New York’s implementation of its Title I program

under the principle of neutrality. Applying this principle to the

facts of this case it becomes clear that the state is acting in a

neutral fashion in its dealings with parochial schools and that

providing public school teachers to religious students does not

violate the Establishment Clause. Allowing Title I funds to

flow to parochial schools of different faiths does not treat any

particular religion with favoritism, nor does it favor religious

schools as a whole over public schools. It simply allows all

eligible school children the opportunity to receive an important

educational benefit. Because this evenhanded disbursement of

funds in no way threatens the establishment of one national

religion the Establishment Clause is not violated.

~—

CONCLUSION

In Aguilar this Court held that using public money to

hire public school teachers to provide remedial instruction to

parochial school children in parochial school classrooms

violated the Establishment Clause. Although this program

20

neither favored nor disadvantaged religious schools, the

Court held that under the third prong of the Lemon test the

program resulted in the excessive, and _ therefore

impermissible, entanglement of church and state.

This case provides the Court with an opportunity not

only to reconsider the Aguilar decision, but also to overrule

Lemon and reintroduce a degree of consistency to

Establishment Clause jurisprudence. In recent terms, this

Court has rejected Establishment Clause claims challenging

neutral governmental programs. However, by not explicitly

overruling Lemon this Court has condemned the lower courts

to toil under the tree-part test. This Court should expressly

overturn Lemon and declare that so long as the government

remains neutral in its dealings with religion the Establishment

Clause is not offended.

DATED: February, 1997.

Respectfully submitted,

OF COUNSEL *SHARON L. BROWNE

MARK T. GALLAGHER *Counsel of Record

Pacific Legal Foundation Pacific Legal Foundation

2151 River Plaza Drive, 2151 River Plaza Drive,

Suite 305 Suite 305

Sacramento, California 95833 Sacramento, California 95833

Telephone: (916) 641-8888 Telephone: (916) 641-8888

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Attorneys for Petitioners