Amicus Curiae Brief — Agostini v. Felton

| — j ' Supreme Court, U.S.

ey eo) FILED

Nos. 96-552, 96-553 MAR 28 1997

In the Supreme Court of the nie StstEa

October Term, 1996

Rachel Agostini, et al.,

Petitioners,

and

Chancellor of the Board of Education, et al.,

Petitioners,

v.

Betty-Louise Felton, et al.,

Respondents.

On Writ of Certiorari

To The United States Court of Appeals

For The Second Circuit

Brief Amicus Curiae of Americans United for Separation of

Church and State, the American Civil Liberties Union, and

the New York Civil Liberties Union,

in Support of Respondents

Steven R. Shapiro Steven K. Green*

American Civil Liberties Julie A. Segal

Union Foundation Americans United for

132 West 43rd Street Separation of

New York, NY 10036 Church and State

(212) 944-9800 1816 Jefferson Place, N.W.

Washington, D.C. 20036

Arthur N. Eisenberg (202) 466-3234

New York Civil Liberties

Union Foundation

132 West 43rd Street * Counsel of Record

New York, NY 10036

(212) 382-0557

—$—_ — ——— — - —_ -_——

BEST AVAILABLE COPY’

DISCLOSURE STATEMENT

This Brief Amicus Curiae is authored entirely by the

undersigned counsel on behalf of amici. No person or entity,

other than amici, has made a monetary contribution to the

preparation or submission of this brief.

TABLE OF CONTENTS

TABLE OF AUTHORITIES................ iil

INTEREST OF AMICI................... l

STATEMENT OF THECASE............... 2

SUMMARY OF ARGUMENT............... 3

ARISUMIENT 0. cc cc ccc rere reer ee eees 5

I. Rule 60(b) is an Inappropriate Vehicle

for Reconsidering this Court's Holding in

Aguilar v. Felton... 2.0. 0 ee 5

Il. The Court's Prohibition on Government

Funding of Religion is Consistent with

Principles of Neutrality Toward Religion. .... . 7

A. This Court has Consistently Rejected a

View of Neutrality that Requires

Funding of Religion. ............ 7

B. The Court's Recent Establishment

Clause Decisions do not Support

an Expanded Notion of Neutrality... .. . 12

Ill. | The Principles Enunciated in

Lemon v. Kurtzman Remain Central to

Establishment Clause Adjudication. ......... 16

A. There is no Reason for this Court

to Reconsider the

Lemon v. Kurtzman Standard. ....... 16

B. The Lemon Principles Remain Vital

and Important to Establishment

Clause Adjudication... .......... 17

xd Entanglement is a Necessary

Component of Establishment

Clause Jurisprudence. ........... 20

Ill. | The Court's Decision in Aguilar v. Felton was

Based on Well-Founded Concerns of

Excessive Entanglement with Religion. ..... . 23

IV. The Risk of Entanglement is Not the

Only Establishment Clause Flaw in

go a ee eee 25

oe | A ere ae 30

TABLE OF AUTHORITIES

Cases

Abington School Dist. v. Schempp,

ceca sacseccékeeecoes 8,10, 18

ACLU v. Black Horse Pike Regional Bd. of Educ.,

ee Oe PN OED Svitestvvesccce ssees 16

Adler v. Duval County Sch. Bd., 851 F. Supp. 446

Se drarntébedesdhebae He cocees 16

Aguilar v. Felton, 473 U.S. 402 (1985) .............. passim

Allegheny County v. ACLU,

EC cdusetrecescecess 10, 16, 17, 29

Arizona v. Rumsey, 467 U.S. 203 (1984)... 22... 6. eee 17

Barnes v. Cavazos, 966 F.2d 1056

i ici e cea eebanedn 6s 6h0eds 3

Board of Education v. Alexander, 983 F.2d 745

I, Si eee ues ae exeunie 3

Board of Education v. Allen, 392 U.S. 236

Dicinn ss aanedkeai een as. 0beennes sant 10

Board of Education of Kiryas Joel v. Grumet,

Es cc idaccagudebadoen.od 5, 16

iV

Board of Education v. Mergens,

ED eanéGeicuacwescenses a4 14,17

Bradfield v. Roberts, 175 U.S. 291 (1899) ............ 8, 12

Bowen v. Kendrick, 487 U.S. 589 (1988) ............. passim

Braunfeld v. Brown, 366 U.S. 599 (1961)... 2... oe ee eee 18

Capitol Square Review and Advisory Board

v. Pinette, 510 U.S. 1307 (1995) .............. 14, 29

Committee for Public Education v. Nyquist,

es PCa bles eKankicccces ve ar 18

Committee for Public Education v. Regan,

SS oeukdeupetsiscncnes 46 002 22

Corporation of Presiding Bishop v. Amos,

Mi tebstévannsdsadscseecwse 20

Edwards v. Aguillard, 482 U.S. 578 (1987) ........... 17, 18

Engel v. Vitale, 370 U.S. 421 (1962)... 2.2.0... 2005. 11,19

Everson v. Board of Education,

POs nc cwesddsises de deuae 10, 19, 20

Fowler v. Rhode Island, 345 U.S. 67 (1953)... ........ 9

Gearon v. Loudoun County Sch. Bd.,

844 F. Supp. 1097 (E.D. Va. 1993). ............ 17

—

Vv

Grand Rapids School Dist. v. Ball,

473 U.S. 373 (1985S) .... 22.22.5555. 10, 11 14,27, 29

Harris v. Joint Sch. Dist., 41 F.3d 447 (9th Cir. 1994),

vacated as moot, 115 S. Ct. 2604 (1995) ........... 17

Helms v. Cody, 856 F. Supp. 1102 (E.D. La. 1994)....... 24

Hernandez v. United States, 490 U.S. 680 (1989)... ... 20, 21

Hunt v. McNair, 413 U.S. 734 (1973) ............ 8, 9, 16, 22

Ingebretsen v. Jackson Public Schools,

88 F.3d 274 (Sth Cir. 1996), cert. denied,

ye 16

Jimmy Swaggart Ministries v. Equalization Board of Cal.,

Reece eetaddeuenssds on S03 es 20

Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d 963

(Sth Cir.), cert. denied, 113 S. Ct. 2950 (1993) .... 17

Lambs Chapel v. Center Moriches Union Free Sch. Dist.,

Pe Ss v8.6 66 us ccicmneucace css 14

Larkin v. Grandel's Den, Inc., 459 U.S. 116 (1982) ....... 29

Lee v. Weisman, 505 U.S. 577 (1992)... 2... 6. eee 11, 16

Lemon v. Kurtzman, 403 U.S. 602 (1971) ........... passim

Levitt v. Committee for Public Education,

re eee 22

vi

Lynch v. Donnelly, 465 U.S. 668 (1984) .......... 16, 17, 19

Marsh v. Chambers, 463 U.S. 783 (1983) ........-..... 16

McCollum v. Board of Education, 333 U.S. 203 (1948) . . . .28

McGatrick v. Wason, 4 Ohio St. 566 (1855)... ......... 18

McGowan v. Maryland, 366 U.S. 420 (1961) ........... 18

Meek vy. Pittenger, 421 U.S. 349 (1975) .. . 8, 14, 23, 26, 27, 28

Niemotoko v. Maryland, 340 U.S. 268 (1951)... ........ 9

NLRB vy. Catholic Bishop, 440 U.S. 490 (1979) ........ 20, 23

Permian Basin Area Rate Cases, 390 U.S. 747 (1968)... .. 6

Presbyterian Church v. Hull Memorial Presbyterian

Church, 393 U.S. 440 (1969)... 6.6 20

Public Funds for Public Schools v. Marburger,

358 F. Supp. 29 (D.N.J. 1973),

aff'd mem., 417 U.S. 941 (1974)... eee 28

Pulido v. Cavazos, 934 F.2d 912 (8th Cir. 1991)......... 3

Roemer v. Board of Public Works of Maryland,

GPa, SEs onan scoescsesas 8, 9, 12, 15, 22

Rosenberger v. Rector & Visitors of University

of Virginia, 115 S. Ct. 2510 (1995)......... 12, 14, 15

Vii

Serbian Eastern Orthodox Diocese v. Milivojevich,

435 UD. COE CIDTS) on. ccccccccccccccsccs os . 20

Thomasson v. State, 15 Ind. 449 (1860)... ..........45. 18

Tilton v. Richardson, 403 U.S. 672 (1971)... ......-- 8,9, 16

Walker v. San Francisco Unified School Dist.,

46 F.3d 1449 (9th Cir. 1995) .............. peewee 3

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

Watson v. Jones, 80 U.S. 666 (1872)... 2.6. 6. ce 20

Webster v. Fall, 266 U.S. 507 (1925)... 2... 0... cee 6

Widmar v. Vincent, 454 U.S. 263 (1981) .............. 9,14

Witters v. Washington Dep't of Services for

the Blind, 474 U.S. 481 (1986). 0... ...00...... 25, 26

Wolman v. Walter, 433 U.S. 229 (1977)... ......... 8, 18, 27

Zobrest v. Catalina Foothills School Dist.,

eee 6, 13, 15, 25, 26

Zorach v. Clauson, 343 U.S. 306 (1952)....... 11, 19, 28, 29

viii

s t Regul Provisi

Adolescent Family Life Act,

42 U.S.C. §300z et seg. (1988)..........

American Schools and Hospitals Abroad

Program, 22 U.S.C. §2174 (1988)..........

Child Care and Development Block Grant of 1990,

42 U.S.C. §9858 (Supp. 1992) ............

Emergency Shelter Grants Program, 42 U.S.C.

§§11371-11378 (1988 and Supp. 1994) .....

Higher Education Facilities Act,

Os SPEND 60th ccc cces ounces

Hill-Burton Act, 42 U.S.C. §291 et seq. (1988) .....

Individuals with Disabilities Education Act,

20 U.S.C. §1400 ef seg. (1988) ............

Title | of the Improving American Schools Act

of 1994, 20 U.S.C. §6301 ef. seg. .........

ee UD cnccccsscsncesceses

PO as ID hs vc cc cecccecsnccees

DOs PD rac ccecccccccesseses

Rule 60(b) of the Federal Rules of Civil Procedure ....

ix

Other Authoriti

Daniel O. Conkle, "Lemon Lives," 43 Case W.

ye 18

Leonard Levy, The Establishment Clause (1986)......... 11

James Madison, Memorial and Remonstrance........... 20

Kathleen M. Sullivan, "Parades, Public Squares and Voucher

Payments: Problems of Government Neutrality,"

ye Ee Ee ee 15

1

INTEREST OF AMICI’

AMERICANS UNITED

FOR SEPARATION OF CHURCH AND STATE

Americans United for Separation of Church and State

(Americans United) is a national, nonsectarian public interest

organization committed to preserving the constitutional

principles of religious liberty and separation of church and

state. Since its founding in 1947, Americans United has

participated either as a party or as amicus in many of the

leading church and state cases decided by this Court, including

bringing the case of Grand Rapids School District v. Ball, 473

U.S. 373 (1985). Americans United has also brought on behalf

of its members several challenges to the implementation of

Title | with respect to parochial schools. See Walker v. San

Francisco Unified School Dist., 46 F.3d 1449 (9th Cir. 1995);

Barnes v. Cavazos, 966 F.2d 1056 (6th Cir. 1992); Pulido v.

Cavazos, 934 F.2d 912 (8th Cir. 1991). The resolution of this

case is therefore of special concern to Americans United and its

members.

AMERICAN CIVIL LIBERTIES UNION AND NEW

YORK CIVIL LIBERTIES UNION

The American Civil Liberties Union (ACLU) is a

nationwide nonprofit, nonpartisan organization with nearly

300,000 members dedicated to the principles of liberty and

equality embodied in the Bill of Rights. The New York Civil

Liberties Union (NYCLU) is one of its statewide affiliates. The

ACLU has appeared before this Court in numerous church-state

' Letters of consent to the filing of this brief have been lodged with the

Clerk of the Court pursuant to Rule 37.

2

cases. For example, the ACLU represented the plaintiffs in

Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S

520 (1993) (upholding claim under the Free Exercise Clause),

and Lee v. Weisman, 505 U.S. 577 (1992) (upholding claim

under the Establishment Clause). The ACLU also filed an

amicus curiae brief in Aguilar v. Felton, 473 U.S. 402 (1985).

The resolution of this case, which seeks to overturn Aguilar,

therefore involves a matter of direct concern to the ACLU and

its members.

STATEMENT OF THE CASE

This case presents the Court with two important

questions that may, depending on their resolution, dramatically

affect both the substance of Establishment Clause jurisprudence

and the manner in which many controversies are brought before

the Court. This present case had its origins twelve years ago in

the Court's decision of Aguilar v. Felton, 473 U.S. 402 (1985).

There, this Court ruled that the Establishment Clause (in

particular, concerns over excessive government entanglement

with religion) barred the provision of Title | remedial and other

educational services on the premises of parochial schools.

Following that holding, the U.S. District Court for the Eastern

District of New York entered a permanent injunction

prohibiting the Secretary of Education and the Chancellor and

Board of Education of New York City from using public funds

to provide educational services on parochial school premises.

Since 1985, Title I services in New York City and

throughout the nation have been provided to parochial school

students through a variety of mechanisms. In some instances,

those services have been provided in nearby public schools; in

other instances, the local education agencies have leased neutral

—

3

sites or mobile instructional units/vans or have offered the

services through computer assisted instruction. When mobile

instructional units/vans have been used, they are usually parked

adjacent to the parochial schools (at times, on parochial school

property) for easy access. There is no recorded instance of

parochial school students being denied Title I services if so

desiring. See Walker v. San Francisco Unified School Dist., 46

F.3d 1449 (9th Cir. 1995); Board of Educ. v. Alexander, 983

F.2d 745 (7th Cir. 1992); Barnes v. Cavazos, 966 F.2d 1056

(6th Cir. 1992); Pulido v. Cavazos, 934 F.2d 912 (8th Cir.

1991).

Despite the effective operation of Title I services in this

manner for over eleven years, in 1996 the Chancellor and Board

of Education moved pursuant to to be relieved from the

judgment and continuing injunction, citing financial costs and

inconvenience in administering the program to parochial school

students. The sole basis for relief under their Rule 60(b)

motion was that a change in the law had occurred since this

Court's decision in Aguilar. The District Court, while agreeing

on the appropriateness of the Rule 60(b) procedure, denied the

motion due to the absence of a change in the law. The Court of

Appeals for the Second Circuit affirmed for substantially the

same reasons stated in the District Court's opinion.

SUMMARY OF ARGUMENT

This Court should not sanction this use of Rule 60(b).

Petitioners are not seeking to be relieved from a judgment as a

result of a change in the law but are instead attempting to use

Rule 60(b) to bring about a change in the law by obtaining

reconsideration of Aguilar v. Felton. Such use of Rule 60(b)

will threaten the finality of judgments, destabilize constitutional

jurisprudence, and burden court dockets through excessive

4

filings as parties seek to be relieved from long-standing

judgments.

In support of their urging that Aguilar be reversed, the

Chancellor and supporting amici proffer a view of government

"neutrality" toward religion that is inconsistent with

Establishment Clause jurisprudence. While this Court has long

embraced principles of neutrality for Religion Clause

adjudication, it has always rejected the view that neutrality

requires the funding of religious institutions and activities.

Contrary to claims of petitioners, this Court's more recent

Establishment Clause decisions are consistent with this

traditional view of neutrality.

The principles enunciated in Lemon v. Kurtzman are

also consistent with this traditional view of neutrality and

remain central to Establishment Clause adjudication. In

particular, the ban on excessive entanglements is key to

preserving religious autonomy and ensuring the equal treatment

of all religions. As such, it is a vital element of Establishment

Clause jurisprudence.

This Court's decision in Aguilar was correctly decided,

based on well-founded concerns of ongoing monitoring and

review of not just public employees, but also parochial schoo!

activities. In addition, the placement of public employees in

parochial schools via Title I raises other Establishment Clause

risks, primarily through the massive infusion of public monies

into parochial schools and the appearance of a joint operation

between public and religious school officials.

5

ARGUMENT

I. Rule 60(b) is an Inappropriate Vehicle for

Reconsidering this Court's Holding in Aguilar v.

Felton.

This Court should not sanction this use of Rule 60(b).

Petitioners are not seeking to be relieved from a judgment as a

result of changed circumstances or a change in the law, but are

instead attempting to use Rule 60(b) to bring about that very

change by obtaining reconsideration of Aguilar v. Felton, 473

U.S. 402 (1985). This use of Rule 60(b) to reconsider the

Aguilar decision is both unprecedented and problematic.’

Petitioners’ sole basis for contending that they are

entitled to reconsideration of the decision they lost twelve years

ago is that the legal rationale behind Aguilar is no longer valid.

In this regard, petitioners rely on: (1) statements contained in

the concurring and dissenting opinions in Board of Education

of Kiryas Joel v. Grumet, 114 S. Ct. 2481, 2498, 2505, 2515

(1994); and (2) claims of a general shift in Court jurisprudence,

including the assertion that this Court has abandoned the "no

funding" prohibition in favor of the "neutrality" principle. Each

of these rationales fails under scrutiny.

Petitioners rely principally on a combination of

statements about Aguilar made in dicta by five of the justices

in Kiryas Joel, not on an actual holding by this Court. Dicta

statements in concurring and dissenting opinions do not

? A fuller discussion of the Rule 60(b) issue is contained in the Amicus

Brief of the New York County Lawyers Association, Committee on

Supreme Court of the United States, which undersigned amici incorporate

by reference.

6

constitute a change in the law sufficient to warrant relief under

Rule 60(b). Rather, the Court has long held that "[qjuestions

which merely lurk in the record, neither brought to the attention

of the court nor ruled upon, are not to be considered as having

been so decided as to constitute precedents." Webster v. Fall,

266 U.S. 507, 511 (1925); see also In re Permian Basin Area

Rate Cases, 390 U.S. 747, 775 (1968) ("this Court does not

decide important questions of law by cursory dicta inserted in

unrelated cases."). Petitioners’ attempts to confer precedential

value on dicta should be rejected by this Court.

Petitioners also rely om the contention that the law

concerning public funding of religious institutions and

excessive entanglement with religion has eroded in the last

decade. As will be discussed infra, this Court has not retreated

from its prohibition on government advancement of or

involvement in religious matters, especially where it concerns

parochial school education. See Zobrest v. Catalina Foothills

Sch. Dist., 509 U.S. 1, 12 (1993).

As a result, it is clear that petitioners seek to affect a

change in the law, not to benefit from a change that has already

taken place. Rule 60(b) is an inappropriate vehicle for such

proactive purposes. Furthermore, allowing petitioners to obtain

reconsideration of their case under Rule 60(b) would destabilize

the future of constitutional jurisprudence, undermine the

finality of judgments, and disrupt stare decisis. The floodgates

would be opened for litigants to seek review of prior judgments

on the basis of "justice counting.” Any criticism by a sitting

justice of an earlier holding would invite parties to mount a

Rule 60(b) petition claiming the law had "changed." Allowing

Rule 60(b) to be used in this manner undermines the integrity

of this Court's decisions and our judicial system. It should not

be condoned.

7

Il. The Court's Prohibition on Government Funding of

Religion is Consistent with Principles of Neutrality

Toward Religion.

A. This Court has Consistently Rejected a View of

Neutrality that Requires Funding of Religion.

As part of their attack on the holding in Aguilar, the

Chancellor and his supporting amici insist that an

"irreconcilable conilict" exists in Establishment Clause

jurisprudence, a conflict that can be resolved only by this

Court's adoption of "neutrality" as the guiding principle for

Religion Clause adjudication. Chancellor Brief at 25-30; Brief

of Christian Legal Society, et al. at 6-14; Brief of Pacific Legal

Foundation at 17-19. Under their proposed version of

neutrality, the direct funding of inherently religious activity

would be permissible provided it occurs through a general

government program made available to all. As applied to the

issue of Title | and other education programs, this neutrality

principle would allow parochial schools to participate in such

programs in the same manner and to the same extent as public

schools, even if the educational funding or services were found

to advance the parochial schools’ religious missions or to

involve the state directly in the religious educational function.’

This notion of neutrality is inconsistent with the

principles underlying the Establishment Clause, and its

’ As a threshold matter, it is unnecessary for the Court to address this

issue even if it is inclined to reverse Aguilar. Neither the Agostini

petitioners nor the Secretary of Education advocates the adoption of a strict

neutrality approach to Establishment Clause adjudication. As the Agostini

petitioners acknowledge, “[nJeutrality or evenhandedness may not be

sufficient to save a program of government aid that directly funds or

subsidizes religious activity.” Agostini Brief at 13.

adoption would cause a wholesale revision of the Court's past

and current church-state jurisprudence. Although the Court has

often spoken in terms of neutrality toward religion,‘ it has never

permitted the government to fund sectarian activities under the

guise of neutrality. While the Court has long allowed religious

institutions to participate in general government programs, it

has always been on the condition that the benefits or services

derived from such participation could not be used for religious

purposes or to displace religious functions. See Bradfield v.

Roberts, 175 U.S. 291, 297-98 (1899); Tilton v. Richardson,

403 U.S. 672, 683 (1971); Meek v. Pittenger, 421 U.S. 349, 366

(1975); Wolman v. Walter, 433 U.S. 229, 248-51 (1977),

Bowen v. Kendrick, 487 U.S. 589, 610 (1988). Thus, even

when a general program is religiously neutral on its face, the

Court has "always been careful to ensure that direct government

aid to religiously affiliated institutions does not have the

primary effect of advancing religion." Kendrick, 487 U.S. at

609.

The Court's college funding decisions present a case-in-

point on the limits to the neutrality principle.’ In all three cases,

the Court allowed church-related colleges to participate in

generally available public grant, loan and revenue bond

programs for secular activities of the institutions. Based on the

lack of evidence that any funds would be used for religious

purposes, the Court held that the church-related colleges could

* Abington School Dist. v. Schempp, 374 U.S. 203, 222, 225 (1963)

(“wholesome neutrality"); Walz v. Tax Commission, 397 U.S. 664, 668-669

(1970) (“benevolent neutrality"); Roemer v. Board of Public Works of

Maryland, 426 U.S. 736, 745 (1976) ("scrupulous neutrality”).

* Roemer, supra, Hunt v. McNair, 413 U.S. 734 (1973), Tilton, supra.

9

participate in those general funding programs.® At the same

time, however, the Court stressed that government "funds [may]

not be used to support specifically religious activity." Roemer

v. Board of Public Works of Maryland, 426 U.S. 736, 759

(1976).’ Anticipating the broad neutrality argument made in

this case, the Roemer Court explained that "a secular purpose

and a facial neutrality may not be enough, if in fact the State is

lending direct support to religious activity." Jd. at 747. Under

the Establishment Clause, government cannot "pay for what is

actually a religious education, even though it purports to be

paying for a secular one, and even though it makes aid available

to secular and religious institutions alike." Jd.

The neutrality principle, of course, is not limited to

religion cases. It is an overarching principle that applies

throughout the First Amendment. Indeed, some of the earli-st

cases that expressly applied the neutrality principle involved the

intersection between religion and speech. See Fowler v. Rhode

Island, 345 U.S. 67 (1953); Niemotoko v. Maryland, 340 U.S.

268 (1951). Departures from the neutrality principle trigger

strict scrutiny. In the religion context, however, the

government's obligation to comply with the Establishment

Clause is a compelling interest that satisfies the strict scrutiny

standard. See Widmar v. Vincent, 454 U.S. 263, 271 (1981).

Invocation of the neutrality standard, therefore, begins the

* The Court emphasized in each case that the church-related colleges

were nonsectarian in character and were prohibited under the respective

statutes from using public funds for any religious purpose. Roemer, 426

U.S. at 740, 743; Hunt, 413 U.S. at 736-37; Tilton, 403 U.S. at 675.

” Accordingly, in Tilton, the Court struck down that provision of the

Higher Education Facilities Act, 20 U.S.C. § 745 (b)(2), that placed only a

twenty year cap on the ability of recipient institutions to use funded facilities

for sectarian instruction and religious worship. Tilton, 403 U.S. at 683.

10

analysis; it does not end it. As Justice Harlan observed twenty-

nine years ago, neutrality is "a coat of many colors" that on its

own offers "no simple or clear measure" for achieving the goals

promoted by the Establishment Clause. Board of Education v.

Allen, 392 U.S. 236, 249 (1968) (Harlan, J., concurring)

(que*'ng Abington School Dist. v. Schempp, 374 U.S. 203, 306

(1963) (Goldberg, J., concurring)).

Although those goals have been articulated in various

ways, see Everson v. Board of Education, 330 U.S. 1, 15-16

(1947), this Court has not wavered from its view that the

Establishment Clause was designed, at a minimum, to prevent

the "sponsorship, financial support, and active involvement of

the sovereign in religious activity." Walz v. Tax Commission,

397 U.S. 664, 668 (1970); accord Grand Rapids School Dist.

v. Ball, 473 U.S. 373, 381 (1985). As described below,

numerous decisions of this Court hold that government funding

of religious activities violates the Establishment Clause.

Accordingly, even a facially neutral government program

cannot be sustained if it violates, either singly or cumulatively,

any of the other indicia of government support for religion that

this Court has identified in its Establishment Clause cases.

The prohibitions on sponsorship, support, and

involvement,* while in part designed to enhance the religious

liberty goals of the Free Exercise Clause, also serve other ends:

they guarantee religious equality among sects as well as

* See Allegheny County v. ACLU, 492 U.S. 573, 593-594 (1989) (the

Establishment Clause prohibits “endorsement, favoritism, or promotion,” of

religion); Ball, 473 U.S. at 385 (the Establishment Clause "does absolutely

prohibit government-financed or government-sponsored indoctrination into

the beliefs of a particular religious faith."); Lemon v. Kurtzman, 403 U.S.

692, 614 (1971) (the purpose of the Establishment Clause is “to prevent, as

far as possible, the intrusion of either into the precincts of the other.").

*

=—- =

vm

—_"

pe

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between believers and nonbelievers; in addition, they protect

the integrity of religion and civil institutions in ways that the

Free Exercise Clause cannot. See Ball, 473 U.S. at 382; Engel

v. Vitale, 370 U.S. 421, 430-31 (1962). As such, the

Establishment Clause does more than mimic the Free Exercise

Clause. Leonard Levy, The Establishment Clause (1986) at ix.

As Justice Blackmun observed recently, "it is not enough that

the government restrain fromm compelling religious practices: It

must not engage in them either. . .. The Establishment Clause

protects religious liberty on a grand scale; it is a social compact

that guarantees for generations a democracy and a strong

religious community -- both essential for safeguarding religious

liberty." Lee v. Weisman, 505 U.S. 577, 604, 606 (1992)

(Blackmun, J., concurring).

The use of public funds to advance religious doctrines

is irreconcilable with these core principles of the Establishment

Clause. Ball, 473 U.S. at 385 ("Although Establishment Clause

jurisprudence is characterized by few absolutes, the Clause does

absolutely prohibit government-financed or government-

sponsored indoctrination into the beliefs of a particular

religious faith."); accord Kendrick, 487 U.S. at 612. Indeed,

this Court has long affirmed the funding limitations of the

Establishment Clause, even in cases that otherwise upheld

religious accommodations. E.g., Zorach v. Clauson, 343 U.S.

306, 315 (1952) ("Government may not finance religious

groups nor undertake religious instruction nor blend secular and

sectarian education nor use secular institutions to force one or

some religion on any person."). As Justice O'Connor stated in

Kendrick, “any use of public funds to promote religious

doctrines violates the Establishment Clause." /d at 623

(O'Connor, J., concurring) (emphasis in original).

For fifty years, therefore, the Court has rejected the

12

simplistic notion that neutrality requires the government to treat

religion and non-religion alike in all respects, especially when

that principle would result in the state funding or sponsorship

of religious instruction. Instead, the Court has recognized that

neutrality "may not suffice by [itself] to achieve in all cases the

purposes of the First Amendment." Walz, 397 U.S. at 695

(Harlan, J., concurring). This Court's traditional view of

neutrality -- which allows many religious entities to participate

in government programs upon the condition that secular

benefits are not applied to religious purposes -- is entirely

consistent with Establishment Clause goals. See Rosenberger

v. Rector & Visitors of University of Virginia, 115 S. Ct. 2510,

2526 (1995) (O'Connor, J. concurring) ("the neutrality principle

and the funding prohibition are . . . of equal historical and

jurisprudential pedigree").? The Court should reaffirm that the

"course of constitutional neutrality" cannot "be an absolute

straight line; rigidity could well defeat the basic purpose of [the

Religion Clauses], which is to insure that no religion be

sponsored or favored, none commanded, and none inhibited."

Walz, 397 U.S. at 669.

B. The Court's Recent Establishment Clause

Decisions do not Support an Expanded Notion of

Neutrality.

The Court's more recent funding cases are consistent

with this traditional view of neutrality. Contrary to petitioners’

* “Our cases have permitted some government funding of secular

functions performed by sectarian organizations. [Citing to Kendrick, 487

U.S. at 617; Roemer, 487 U.S. at 642; Bradfield, 175 U.S. at 299-300.]

These decisions, however, provide no precedent for the use of public funds

to finance religious activities." Rosenberger, 115 S. Ct. at 2525 (O'Connor,

J., concurring).

a ee

13

claims, the Court has not deviated from the rule that the

Establishment Clause prohibits the use of public funds to pay

for religious activity, even when the funds are administered

through neutral government programs. In Bowen v. Kendrick,

the Court upheld the facial constitutionality of the Adolescent

Family Life Act (AFLA), 42 U.S.C. § 300z et seq. (1988), as

well as the general eligibility of religious organizations to

receive funding for providing services under the Act.

Significantly, however, the Court remanded the case to the

district court to determine whether AFLA funds were going to

pervasively sectarian organizations or were being used to

promote religious activities of the recipient institutions. 487

U.S. at 621-22. While some of the justices were divided over

the eligibility of certain institutions, the Court was unanimous

in holding that public funds could not be “used to further

religion," even when administered under a general benefit

program. /d. at 624 (Kennedy, J., concurring). As the Chief

Justice stated, "even when the challenged statute appears to be

neutral on its face, we have always been careful to ensure that

direct government aid to religious affiliated institutions does

not have the primary affect of advancing religion." /d. at 609.

Similarly, in Zobrest, the Court found no constitutional

prohibition to using funds under the Individuals with

Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq.

(1988), to pay for a sign language interpreter for a hearing

impaired student attending a parochial school. 509 U.S. at 10.

The Court reiterated that "we 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." /d. at 8. But, consistent with the rule in

Kendrick, the Court also found no evidence that the interpreter

14

was involved in the instructional process or that the parochial

school accrued any financial benefit from the presence of the

interpreter. /d. at 10-12 (distinguishing the earlier aid cases of

Meek and Ball which involved "direct grants of government aid

[which] relieved sectarian schools of costs they otherwise

would have borne"). Evidence that public monies would be

used to further the religious program of the host parochial

school would have required a different resolution of the case,

notwithstanding the neutral character and general availability of

IDEA funds."

Finally, the decision in Rosenberger, while factually

distinguishable from the above funding cases, is also consistent

with the Court's long-standing position towards neutrality.

There, the Court held that the Establishment Clause did not bar

a student religious newspaper from receiving a share of student

fees under a university program designed to enhance student

free speech.'' Yet, while affirming the importance of neutrality

'° In fact, the regulations implementing IDEA, like numerous other

federal statutes and regulations, prohibit religious affiliates from using

federal funds for any religious purpose, including religious worship,

instruction, or proselytization. 34 C.F.R. § 76.532(a) (1994). See also the

Hill-Burton Act, 42 U.S.C. § 291 et seq. (1988); the American Schools

and Hospitals Abroad Program, 22 U.S.C. § 2174 (1988); the Emergency

Shelter Grants Program, 42 U.S.C. §§ 11371-11378 (1988 and Supp.

1994); and the Child Care and Development Block Grant of 1990, 42

U.S.C. § 9858 (Supp. 1992).

'' Rosenberger is distinguishable from the educational funding decisions

in that it involved the equivalent of a public square that provided a largely

unregulated platform for various forms of student expression. As such, it

is more similar to the holdings in Capitol Square Review and Advisory

Board v. Pinette, 510 U.S. 1307 (1995); Lambs Chapel v. Center Moriches

Union Free Sch. Dist., 508 U.S. 384 (1993); Board of Education v.

Mergens, 496 U.S. 226 (1990); and Widmar, supra. See Kathleen M.

15

in resolving the case, the Court also acknowledged the

limitations of that principle. 115 S. Ct. at 2523 (noting the

constitutional problems that would be presented in "a case

where, even under a neutral program that includes nonsectarian

recipients, the government is making direct money payments to

an institution or group that is engaged in religious activity").'”

Citing to those earlier decisions involving general government

programs such as Kendrick and Roemer, the Court

acknowledged the "special Establishment Clause dangers where

the government makes direct money payments to sectarian

institutions." Jd. As Justice O'Connor reiterated, Rosenberger

does not "trumpet[] the supremacy of the neutrality principle

nor signal{] the demise of the funding prohibition in

Establishment Clause jurisprudence." /d. at 2528 (O'Connor, J.,

concurring).

Accordingly, in its post-Aguilar decisions, the Court has

reaffirmed the crucial role of the "no-religious funding"

principle in Establishment Clause jurisprudence. While

affirming that notions of neutrality permit religiously affiliated

institutions to participate in general government programs and

apply those benefits toward secular ends, the Court has

continued to prohibit the extension of such aid where it has the

effect of subsidizing a religious function or brings about "the

direct and substantial advancement of religious activity."

Zobrest, 509 U.S. at 10-12.

Sullivan, "Parades, Public Squares and Voucher Payments: Problems of

Government Neutrality,” 28 Conn. L. Rev. 243-260 (1996).

'2 “Evenhandedness is therefore a prerequisite to further inquiry into the

constitutionality of a doubtful law, but evenhandedness goes no further. It

does not guarantee success under Establishment Clause scrutiny." /d. at

2541 (Souter, J., dissenting).

16

Ill. The Principles Enunciated in Lemon v. Kurtzman

Remain Central to Establishment Clause

Adjudication.

A. There is no Reason for this Court to Reconsider

the Lemon v. Kurtzman Standard.

The Agostini petitioners and several supporting amici

criticize the test enunciated in Lemon v. Kurtzman, 403 U.S.

602 (1971), and urge this Court to repudiate it in whole or in

part. This attack on Lemon, however, is largely a diversionary

tactic. The Lemon test is merely a distillation of Establishment

Clause principles articulated over time in the Court's decisions.

It has never represented more than a set of broad guidelines for

determining Establishment Clause controversies. As the Court

has recognized, these guidelines serve as "helpful signposts" in

each particular case, Hunt, 413 U.S. at 741; they do not

represent a "single constitutional caliper" for decision making.

Tilton, 403 U.S. at 677. Indeed, the Court has declared its

"unwillingness to be confined to any single test or criterion in

this sensitive area," Lynch v. Donnelly, 465 U.S. 668, 679

(1984). Its decisions over the past dozen years reflect this

nuanced approach. See Kiryas Joel, supra (preferential

treatment; unlawful delegation of authority); Lee, supra

(coercion); Allegheny County v. ACLU, 492 U.S. 573 (1989)

(endorsement); Marsh v. Chambers, 463 U.S. 783 (1983)

(historic).

Lower courts, as well, have recognized that the

principles of the Establishment Clause are more important than

any particular formulation and have not restricted their analysis

to the Lemon factors. See e.g. Ingebretsen v. Jackson Public

Schools, 88 F.3d 274 (Sth Cir. 1996), cert. denied, 117 S. Ct.

388 (1996); ACLU v. Black Horse Pike Regional Bd. of Educ.,

17

84 F.3d 1471 (3d Cir. 1996); Harris v. Joint Sch. Dist., 41 F.3d

447 (9th Cir. 1994), vacated as moot, 115 S. Ct. 2604 (1995):

Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d 963 (Sth Cir.),

cert. denied, 113 S. Ct. 2950 (1993); Adler v. Duval County

Sch. Bd., 851 F. Supp. 446 (M.D. Fla. 1994); Gearon v.

Loudoun County Sch. Bd., 844 F. Supp. 1097 (E.D. Va. 1993).

As a result, claims of confusion among lower courts are

overstated. Conversely, many recent applications of the Lemon

test have resulted in holdings that even petitioners and their

amici would not consider to be hostile to religion. See Lamb's

Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384

(1993); Board of Education v. Mergens, 496 U.S. 226 (1990);

Kendrick, supra. Apparently, the complaint here is not so much

with the application of Lemon itself but with the outcome of

particular cases with which petitioners and their amici disagree.

This does not represent a sensible rationale for reversing an

analytical standard that has been an important part of

Establishment Clause jurisprudence for thirty years. Arizona v.

Rumsey, 467 U.S. 203, 212 (1984) ("any departure from the

doctrine of stare decisis demands special justification").

B. The Lemon Principles Remain Vital and

Important to Establishment Clause Adjudication.

Although less frequently invoked in recent years, the

Lemon test still represents this Court's best articulation of the

principles and goals underlying the Establishment Clause."? In

In recent years, the Court has refined the Lemon test to emphasize an

“endorsement or disapproval” inquiry first proposed by Justice O'Connor in

Lynch v. Donnelly, 465 U.S. at 687-694. Under this reformulation, the

critical inquiry is whether the government's action has either the actual

purpose or effect of endorsing or disapproving of religion. Allegheny, 492

U.S. at 592-594; Edwards v. Aguillard, 482 U.S. 578, 585 (1987).

order to guard against prohibited government "sponsorship,

financial support, and active involvement . . . in religious

activity,” the Court fashioned a test based on the "cumulative

criteria" of its earlier decisions. Walz, 397 U.S. at 688; Lemon,

403 U.S. at 612. These "numerous precedents" have become

firmly rooted" in the Court's jurisprudence and their basic

principles have guided Establishment Clause adjudication for

over thirty years. Wolman, 433 U.S. at 236 (quoting Committee

for Public Education v. Nyquist, 413 U.S. 756, 761 (1973))."

The requirement that government policies and

legislation be based on legitimate secular rationales does not

impose an undue burden on legislators but instead rests on the

premise that laws should be based on secular policy

considerations, and that matters of religion are outside the

cognizance of civil authorities. See McGowan v. Maryland, 366

U.S. 420, 449-51 (1961). As Justice O'Connor stated in

Wallace v. Jaffree: "{i}t is not a trivial matter . . . to require that

the legislature manifest a secular purpose and omit all sectarian

endorsements from its laws." 472 U.S. 38, 75 (1985)

(O'Connor, J., concurring); accord Edwards v. Aguillard, 482

U.S. 578, 587 (1987). This requirement, in fact, finds its basis

in some of the nation's earliest church-state decisions where

courts first identified the necessity of secularly based legislation

in a religiously heterogenous democracy. See Thomasson v.

State, 15 Ind. 449, 454 (1860); McGatrick v. Wason, 4 Ohio St.

'* See Braunfeld v. Brown, 366 U.S. 599, 607 (1961) (A law is

constitutionally invalid if its “purpose or effect . . . is to impede the

observance of one or all religions or is to discriminate invidiously between

religions . . .."); Abington School Dist., 374 U.S. at 222 ("The test may be

stated as follows: what are the purpose and the primary effect of the

enactment?"). See also Daniel O. Conkle, "Lemon Lives,” 43 Case W. Res.

L. Rev. 865, 869 (1993) (the Lemon test "clearly recognizes that

Establishment Clause analysis is a matter of degree").

19

566, 571-72 (1855).

The notion that the primary effect of a law should not

advance or inhibit religion also has its roots deep in our

jurisprudence. See Everson, 330 U.S. at 8-16 (tracing the

historic influences behind the Establishment Clause); Zorach,

343 U.S. at 315. This prohibition is based on at least two

premises. First, government advancement of religion is

inherently a coercive and divisive process, either through the

enforced financial support of religion or through the placement

of government power and prestige behind particular articles of

faith. Everson, supra; Lynch, 465 U.S. at 688, 692 (O'Connor,

J., concurring). Second, the ban on advancing or inhibiting

religion recognizes that "a union of government and religion

tends to destroy government and degrade religion" and causes

people to lose “their respect for any religion that . . . relie{s]

upon the support of government to spread its faith." Enge/, 370

U.S. at 431. As such, government may impermissibly advance

religion by involving itself too closely in religious activities or

functions, thereby threatening the integrity of both institutions

and leading to perceptions of favoritism of particular sects.

Without the protection of these interests, and those

promoted by nonentanglement, see pp. 20-23, infra, the

Establishment Clause would revert to little more than a rule

prohibiting the formal structures of an established church. Such

a cramped view of the Establishment Clause is irreconcilable

with our history and this Court's decisions, and ignores the

"myriad, subtle ways in which Establishment Clause values can

be eroded" and religion advanced by the government. Lynch,

465 U.S. at 694 (O'Connor, J., concurring).

20

C. Entanglement is a Necessary Component of

Establishment Clause Jurisprudence.

The ban on excessive government entanglements with

religion has a pedigree that is much older and broader than the

religious funding cases of the 1970s. Even before the drafting

of the First Amendment, James Madison warned that excessive

government involvement in religious matters would "destroy

that moderation and harmony" between the civil and the sacred

that was necessary for the success of the new democracy. The

tenuous harmony of that era, Madison explained, was due to

“the forbearance of our laws to intermeddle with Religion . . .."

Memorial and Remonstrance § 11 (reprinted in Appendix to

Everson, 330 U.S. at 69). Judicial concerns over government

intrusion into religious affairs and the corresponding threats to

religious autonomy such entanglements produce go back at

least as far as the Court's 1872 decision in Watson v. Jones, 80

U.S. 666, 677 (1872), where the Court held that judges were

neither authorized nor competent to decide internal issues of

church governance. Since that time, the Court has frequently

decried the "hazards" that accompany excessive government

involvement in or oversight of religious matters. Presbyterian

Church v. Hull Memorial Presbyterian Church, 393 U.S. 440,

449 (1969); accord Serbian Eastern Orthodox Diocese v.

Milivojevich, 426 U.S. 696, 709 (1976) (remarking on the

“substantial danger that the State will become entangled in

essentially religious controversies” ).

The importance of avoiding government entanglements

in religious affairs has been noted in other contexts and

relationships, including areas of tax policy, labor relations, and

antidiscrimination laws. Walz, 397 U.S. at 674-75; Hernandez

v. United States, 490 U.S. 680, 693-93 (1989); Jimmy Swaggart

Ministries v. Equalization Board of Cal., 493 U.S. 378, 393-96

21

(1990); NLRB v. Catholic Bishop, 440 U.S. 490, 501-04 (1979),

Corporation of Presiding Bishop v. Amos, 483 U.S. 327, 336

(1987). For example, in Hernandez, the Court concluded that

a uniform rule governing charitable deductions had less

potential for entangling the IRS in religious matters than one

that permitted inquiry into whether the contribution served a

religious benefit as opposed to a secular one. 483 U.S. at 694

(noting that the petitioner's proposal would lead to "pervasive

monitoring’ for ‘the subtle or overt presence of religious matter,’

[which] is a central danger against which we have held the

Establishment Clause guards," quoting Aguilar, 473 U.S. at

413).

As such, the Court's application of the entanglement

standard to public funding issues rests on a broad-based

concern about avoiding government oversight of and

involvement in inherently religious matters. "The objective [of

the entanglement prohibition] is to prevent, as far as possible,

the intrusion of either into the precincts of the other." Lemon,

403 U.S. at 614. At the same time, the test avoids the potential

danger that government intrusion into religious affairs will

result in the unequal treatment of religious institutions, either

through unfamiliarity with matters of faith or through

incompetence or design. Hernandez, 490 U.S. at 694.

By definition, a funding program is "a relationship

pregnant with involvement," and although the existence of

oversight is not unique to programs with religious recipients, it

is through such oversight that constitutional concerns arise.

Lemon, 403 U.S. at 621.'° Because the government "is

'S “Although the very fact of neutrality may limit the intensity of

involvement, government participation in certain programs, whose very

nature is apt to entangle the state in details of administration and planning,

22

constitutionally compelled to assure that the state-supported

activity is not being used for religious indoctrination," it may be

required to engage in the very type of detailed and ongoing

monitoring of program recipients that leads to excessive

involvement in religious matters. Levitt v. Committee for Public

Education, 413 U.S. 472, 480 (1973). Such surveillance or

involvement is especially problematic with those religious

institutions, such as parochial schools, where "religion is so

pervasive that a substantial portion of [their] functions are

subsumed in the[ir] religious mission{s] . . .." Hunt, 413 U.S. at

743: accord Kendrick, 487 U.S. at 610. Complaints about the

effect of the entanglement prong minimize the constitutional

concerns that inevitably accompany the funding of religious

institutions.

Moreover, the test is one of "excessive" entanglement

and, thus, is "inescapably one of degree." Walz, 397 U.S. at

674-75; accord Roemer, 426 U.S. at 766. It is therefore an

overstatement to claim that the entanglement prong presents an

inescapable "Catch-22" that needlessly excludes religious

institutions from participating in important government

programs. As this Court's decisions have shown, in some

situations religious institutions may participate in government

funded programs without undue risk of either advancement or

excessive entanglement with religion. See Kendrick, 487 U.S.

at 615-17; Committee for Public Education v. Regan, 444 U.S.

646, 660 (1980); Roemer, 426 U.S. at 766. In many other

situations, adjustments can be made in the way programs

operate to ensure that unnecessary entanglements are avoided.

Aguilar, supra. Appropriately understood and applied, the

entanglement prong operates for the benefit of both religion and

may escalate to the point of inviting undue fragmentation.” Walz, 397 U.S.

at 695 (Harlan, J., concurring).

23

civil society, at times insisting on long-term goals in place of

short-term gains. Its function is essential for Religion Clause

jurisprudence, and it should be retained as an independent test.

Ill. The Court's Decision in Aguilar v. Felton was Based

on___Well-Founded Concerns of Excessive

Entanglement with Religion.

This Court's decision in Aguilar reflects the important

goals behind the entanglement prong. Like the programs struck

down in Lemon and Meek, Title | utilizes teachers to perform

instructional functions which are indistinguishable from many

of the core educational functions performed by the parochial

schools. 7 As Justice Brennan recognized, public employees

teaching in religious environments may be subject to subtle or

overt pressure to tailor the substance of their instruction to

conform to the mission of the religious school. Aguilar, 473

US. at 409. At a minimum, they will seek to avoid perceived

conflicts between their duties and the schools’ doctrinal

positions. However, public education officials "must be certain,

given the [command of the] Religion Clauses, that [publicly]

subsidized teachers do not inculcate religion." Lemon, 403 U.S.

at 619. In order to be true to this command, intrusive and

ongoing monitoring will be inevitable and unavoidable.

Petitioners do not deny the inevitability of monitoring.

Instead, they claim that entanglement concerns do not arise

when only public school teachers are being monitored. That

‘* "The key role played by teachers in [a parochial] school system had

been the predicate for our conclusions that government aid channeled

through teachers creates an impermissible risk of excessive government

entanglement in the affairs of the church-operated schools.” Catholic

Bishop, 440 U.S. at 501.

24

claim oversimplifies the integrated nature of the Title I services.

Unlike the provision of health services, for example, remedial

education is closely tied to the educational function of the

parochial school, thereby necessitating greater contact and

coordination with parochial school teachers and officials. It is

entirely predictable that these contacts will increase when

public school teachers and parochial school teachers work side-

by-side in the same buildings.'’ Such contacts will inevitably

lead to comparisons of course content which may involve issues

of religious doctrine or administration. It is therefore naive to

suggest that monitoring can be limited to the activities of the

public employees and not -involve religious matters.

Government involvement in issues of religious significance,

which now are avoided through the separate operations, will

become more frequent through the enhanced day-to-day

relationship, and will in turn invite greater opportunity for

government judgments on matters of faith. See Lemon, 403 U.S.

at 620. These are the very type of intrusive activities the no-

entanglement requirement is designed to avoid.

Accordingly, the Aguilar Court correctly found that the

avoidance of excessive entanglement required that Title |

services occur off parochial school premises. That holding was

a constitutionally reasonable one. In order to avoid ab initio

those hazards that would accompany the detailed monitoring

and close pedagogical and administrative contact necessitated

by placing public teachers in sectarian schools, the Court

reasonably found that application of Title | unconstitutional.

’ See Findings of Fact in Helms v. Cody, 856 F. Supp. 1102, 1116-18

(E.D. La. 1994), regarding the increased level of interaction and the blurring

of roles between public and private school employees under state program

that places public school teachers in parochial schools.

25

IV. The Risk of Entanglement is Not the Only

Establishment Clause Fiaw in the Title | Program.

Even assuming, arguendo, that the entanglement

problems identified by Justice Brennan in 1985 could be

resolved -- and no one suggests that there has been any

fundamental change in the structure of Title | during the

intervening years -- the fact remains that petitioners are seeking

permission to spend millions of federal tax dollars to place

public school teachers in parochial schools for instructional

purposes on an ongoing basis. This Court has never sustained

such a massive program of aid to education in the parochial

schools, nor has this Court ever allowed public school teachers

and parochial school teachers to work side-by-side in the joint

enterprise of educating parochial school students. Contrary to

petitioners’ assertion, therefore, Aguilar is not an anomaly in

this Court's Establishment Clause jurisprudence. Rather, it is

petitioners who seek to undermine a shared understanding of

the Establishment Clause that the Court has reaffirmed on

numerous occasions over the past fifty years.'*

Petitioners argue that Title I can no longer be viewed as

a program of public support for parochial education after

Witters v. Washington Dep't of Services for the Blind, 474 U.S.

481 (1986), and Zobrest, 509 U.S. 1. Those cases, however,

cannot support the weight that petitioners place on them. Both

"* It is not surprising that Justice Brennan's opinion in Aguilar focused on

entanglement since New York City attempted to defend its program

primarily by relying on the “system of monitoring" it had put into place.

473 U.S. at 409. The concluding paragraph of Justice Brennan's opinion,

however, emphasizes that the on premises operation of Title | is

constitutionally flawed both because of “excessive entanglement" and

because of “the benefits” it advances to pervasively sectarian educational

institutions. /d. at 414.

26

cases dealt with a singular application of a government program

that did not result in the substantial funding of religious

education. Accordingly, the financial benefit received by the

sectarian schools in those cases could be described as an

"attenuated" one. Zobrest, 509 U.S. at 8; Witters, 474 U.S. at

488. Here, by contrast, New York City is seeking to have its

public schools teachers provide continuing instruction to

approximately 22,000 students each year in the parochial

schools. Considering both the massive expenditures and the

instructional nature of the services under Title I, the benefit to

parochial schools can hardly be characterized "attenuated."

This distinction is consistent with Zobrest itself, where the

Court carefully distinguished Meek on the ground that it

involved "massive aid" for instruction in the parochial schools,

509 U.S. at 11."° By any reasonable measure, the Title I

program is much closer to the massive aid program struck down

in Meek than the "attenuated" aid upheld in Zobrest and Witters.

Amici acknowledge that the massive nature of an aid

program, on its own, may not render that program infirm under

the Court's jurisprudence. But when the size of a program Is

combined with other factors, such as the funding of educational

functions and its operation inside parochial schools, the benefit

to sectarian schools becomes undeniable.

Petitioners’ emphasis on the fact that Title I funds are

designed to “supplement, not supplant" parochial school

programs also collapses under scrutiny. See 20 U.S.C.

§6322(b)(1); 34 C.F.R. §200.23(a). Their theory seems to be

that because Title I funds can only be used for "supplementary"

* As this Court also recognized in Zobrest, teachers are different because

their function goes to the very essence of the educational enterprise. 509

U.S. at 13.

27

services, albeit on parochial school campuses, they do not

“relieve[] sectarian schools of costs they otherwise would have

borne in educating their students." Zobrest, 509 U.S. at 12.

Unfortunately for petitioners, the Zobrest Court places Meek on

the prohibited side of that constitutional line. If remedial

education was not regarded as a supplementary service in Meek,

it is not a supplementary service under Title i either. Accord

Wolman, 433 U.S. at 244 (contrasting diagnostic services from

instructional services which are "closely associated with the

educational mission of the non-public school").

Moreover, the statutory and regulatory language cited

by petitioners is not nearly as clear as they suggest. A parochial

school that provides remedial instruction for its underachieving

students is still eligible for Title | funding so long as it does not

reduce any money spent from its own budget, 20 U.S.C.

§6322(b)\(1), or the level of services it was previously

providing, 34 C.F.R. §200.12(a). What the statute does not

address and what the record does not reveal is whether the

parochial schools would have felt obligated to increase their

own spending for remedial education in the absence of Title |

funding. If parochial schools would have increased their

spending for remedial education but for Title I, the distinction

between "supplemental" and "supplant" becomes largely

illusory.

Finally, petitioners contend that Title I does not

subsidize religious education because it is earmarked

exclusively for secular instruction delivered exclusively by

public school employees. Thus, petitioners assert, Title I is best

understood as a child benefit program rather than as a program

that impermissibly aids parochial schools. This Court has taken

a more realistic approach, recognizing that at some point the

infusion of money into a pervasively sectarian institution for

28

instructional purposes becomes so substantial that it violates the

Establishment Clause even though it is earmarked for allegedly

secular use. Cf Meek, 421 U.S. at 265. See also Ball, 473 USS.

at 394 (expressing concern about public schools taking over

"entire responsibility" for parochial school education); Public

Funds for Public Schools v. Marburger, 358 F. Supp. 29, 42

(D.N.J. 1973), aff'd mem., 417 U.S. 941 (1974) (warning about

"escalating" state aid which "bespeak(s) the invasion of secular

authorities in to the affairs of organized religion").

These financial considerations are augmented in this

case by the added concern that Title I creates an inescapable

link between public school teachers and parochial school

teachers who are both engaged in teaching reading and math to

the same students in the same buildings. See Lemon, 403 U.S.

at 612. From the perspective of an impressionable elementary

school student, the reasonable assumption is that the public

school teacher and the parochial school teacher are participating

in a joint enterprise. And, because the parochial school setting

is a pervasively sectarian one, e.g. Meek, 421 U.S. at 366, it is

unlikely that many young students will appreciate that the

boundaries of the Title I program do not include sectarian

instruction. It is far more likely that a young student will see all

the teachers as indistinguishable and all teachers, therefore, as

supporting the obvious religious mission of the parochial

school.

This Court's concerns over joint enterprises between

religious and civil entities are long-standing. Three decades

before Aguilar, the Court drew a clear distinction between a

"release time" program that permitted students to leave public

school early for religious instruction at another site, and a

program that permitted religious instructors to conduct religious

classes in the public schools. Although both programs were

29

voluntary, the former was upheld, Zorach, 343 U.S. at 315, and

the latter struck down, McCollum v. Board of Education, 333

U.S. 203 (1948). The distinction, Justice Frankfurter explained,

flows from constitutional imperative "to abstain from fusing

functions of Government and of religious sects .. . ." Jd. at 227:

cf. Larkin v. Grandel's Den, Inc., 459 U.S. 116 (1982). As this

Court reaffirmed in Ball, when impressionable schoolchildren

are involved, government should the take all steps to avoid the

“graphic symbol of concert or union or dependency." Ball, 473

U.S. at 391, (quoting Zorach, 343 U.S. at 312).

More recently, this Court has made the same point using

the language of endorsement. For example, in Allegheny

County, 492 U.S. at 600, the Court struck down the display of

a creche in the main lobby of the county courthouse in part

because the "display of the creche in this particular physical

setting” conveyed the impression that its religious message was

linked to the symbols of government that surrounded it. Cf

Capitol Square Review and Advisory Board v. Pinette, 510 U.S.

1307 (1995). This case presents the reverse situation.

Petitioners would like to portray the Title I program as an

enclave of secular instruction unrelated to everything and

everyone around it. In the real world, however, that is not the

way it is likely to be perceived by a young schoolchild.

Accordingly, there are sound Establishment Clause

reasons for prohibiting public employees from teaching in the

parochial schools under any circumstances. Nor was Aguilar

the first case to recognize the propriety of that bright line. The

line this Court identified in Aguilar is thus constitutionally

supportable on several levels. That line should be respected

and reaffirmed.

30

CONCLUSION

Based on the aforementioned reasons, amici urge this

Court to affirm the decisions below.

Respectfully submitted,

Steven R. Shapiro Steven K. Green*

American Civil Liberties Julie A. Segal

Union Foundation Americans United for

132 West 43rd Street Separation of

New York, NY 10036 Church and State

(212) 944-9800 1816 Jefferson Place, N.W.

Washington, DC 20036

(202) 466-3234

Arthur N. Eisenberg

New York Civil Liberties

Union Foundation * Counsel of Record

132 West 43rd Street

New York, NY 10036

(212) 382-0557

March 28, 1997