# Amicus Curiae Brief — Agostini v. Felton

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## Record

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

## Text

| — 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0023%3A24. Public record. Not legal advice.