Amicus Curiae Brief — Agostini v. Felton

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MOTION FILED (y (4)

“FB 27 1997, Nos. 96-552 & 96-553

In The

Supreme Court of the United States

October Term, 1996

.

RACHEL AGOSTINI, et al.,

Petitioners,

BETTY-LOUISE FELTON, et al.,

Respondents.

¢

On Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

e

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE AND BRIEF AMICUS CURIAE OF SARAH

PETER, JOAN PETER, AARON WESTENDORP,

KRISTA WESTENDORP AND DOUGLAS

WESTENDORP IN SUPPORT OF PETITIONERS

¢

MIcHAEL STOKES PAULSEN

c/o University of

Minnesota Law School

229 19th Ave. S.

Minneapolis, MN 55455

612-625-0018

Danie. L. BowLes MICHAEL JOSEPH WoopRUFF

Danie. KaADLEC Counsel of Record

LARKIN, HoFrFMAN, DALy Scott J. Warp

& Linpcren, LTD. J. MattHew SzyYMANskKI

1500 Norwest Financial GAMMON & Grance, P.C.

Center 8280 Greensboro Dr.

7900 Xerxes Ave. S. McLean, VA 22102-3807

Bloomington, MN 703-761-5000

55431-1194

612-835-3800

Of Counsel

COCKLE LAW BRIEF PRINTING CO 225-6964 AY

CALL COLLECT (402) 342-2831 ’ ;

MOTION FOR LEAVE

TO FILE BRIEF AMICUS CURIAE

Amici curiae Sarah Peter, Joan Peter, Aaron Westen-

dorp, Krista Westendorp and Douglas Westendorp have

sought the consent of the parties to participate in this

matter by the filing of the enclosed brief. Consent letters

from counsel for all parties to file this brief are on file

with the Clerk in accordance with Rule 37.3, except that

counsel for Respondents Felton, et al., has withheld con-

sent, necessitating this motion.

This motion and the enclosed brief are filed in sup-

port of the Petitioners Agostini, et al., to inform the Court

of the interests of children with acute disabilities result-

ing in special education needs and to show how the

decision in Aguilar v. Felton, 473 U.S. 402 (1985), has been

applied by state and local governments and school offi-

cials to discriminatorily deny statutorily mandated spe-

cial education services solely because the student with a

disability attends a private religious school.

As set forth more fully in the “Interest of the Amici”

section of the attached brief, amici are children with phys-

ical and cognitive disabilities that require special educa-

tion assistance, and the parents of these children, who

live in Minnesota. Under state law, the children, Aaron

Westendorp (age 11) and Sarah Peter (age 5), are eligible

for special education services, including the assistance of

a paraprofessional aide in their regular classrooms. How-

ever, state and local authorities, relying on the Aguilar

decision, refused to provide these services at the families’

chosen private schools, because of the religious character

of those schools. As a consequence, their parents have

been forced to remove Aaron and Sarah from their chosea

religious schools and enroll them in public schools, in

order to obtain the needed paraprofessional assistance.

The experience of amici under the Minnesota statu-

tory and regulatory regime offers an important analytic

complement to, and a unique perspective on, the issue

presented by the pending case. In the instant case, New

York City has sought to provide on-site remedial educé-

tion services to needy students, without difference ca

discrimination based on the religious character, message,

or viewpoint of a child’s school, but the injunction in

Aguilar bars them from doing so. Petitioners have sought

review in order to be freed of this barrier. Amici are ina

somewhat different situation. In amici’s case, the State of

Minnesota, relying on Aguilar, has barred local schoel

districts from providing paraprofessional classroom aides

to students attending private religious schools. The Peter

and Westendorp families, and others like them, have

suffered the full brunt of Aguilar’s application, forcirg

them to choose between their constitutional right to pu-

sue a religious education and their statutory rights ©

receive critically necessary and otherwise unavailabe

special education services.

From the perspective of amici, the question of

whether Aguilar should be overruled thus involves moe

than simply the need to remove an impediment to tle

smooth and educationally sound operation of a beneficial

government program; for Sarah Peter and Aaron Westea-

dorp, Aguilar involves a question of individual rights — the

right to freedom of religious choice, without governme:t

interference; and the right to receive statutory educ-

tional benefits designed to address one’s disabilitie,

without being discriminated against because of one’s reli-

gious exercise, expression, or affiliation. Amici thus offer

a unique and important perspective on the constitutional

issues presented by the pending case.

Amici are particularly telling examples of the discrim-

ination that has been suffered by students with disabil-

ities who attend private religious schools in the wake of

Aguilar. The Aguilar case has visited very real and harsh

consequences in the lives of amici and others similarly

situated — individuals who have had to bear other harsh

burdens because of their disabilities.

Amici thus have a direct and important interest in the

resolution of the instant case, and a valuable perspective

to offer concerning the legal issues presented therein.

Amici therefore respectfully urge that the Court grant this

Motion for Leave to File a Brief Amicus Curiae.

Respectfully submitted,

MicHaet Stokes PAULSEN

c/o University of

Minnesota Law School

229 19th Ave. S.

Minneapolis, MN 55455

Danie. L. Bow es

Danie. KapLec

Larkin, HorrMan, Daty

& Linvcren, LTD. MicHaet JosepH Wooprurr

1500 Norwest Financial Counsel of Record

Center Scott J. Warp

7900 Xerxes Ave. S. ]. MatrHew SzyYMANskI

Bloomington, MN GamMon & Grance, P.C.

55431-1194 8280 Greensboro Dr.

Of Counsel McLean, VA 22102-3807

i ‘

QUESTION PRESENTED

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

be overruled.

TABLE OF CONTENTS

Page

QUESTION PRESENTED. .............-00eeeeeeeees i

TABLE OF AUTHORITIES ..............0.050000005 iv

INTEREST OF AMICI CURIAE ..................-- 1

SUMMARY OF ARGUMENT...............-..00055 5

RET 6 oc cccccccvtscccncasccentccescedccedss 8

I. THE ESTABLISHMENT CLAUSE DOES NOT

FORBID NEUTRAL PROVISION OF GOV-

ERNMENT BENEFITS TO STUDENTS

ATTENDING PRIVATE RELIGIOUS

SCHOOLS, INCLUDING PROVISION OF ON-

PREMISES SPECIAL OR REMEDIAL EDUCA-

TRIES GCE 0 cc ccccccccssessccccsccccces 8

A. The Establishment Clause Requires Gov-

ernment Neutrality, Noncoercion and

Nonendorsement With Respect to Reli-

gious Exercise; It Does Not Authorize Dis-

crimination Against Religion ............ 9

B. The Programs at Issue Here Satisfy the

Establishment Clause’s Core Requirements

of Neutrality, Noncoercion and Nonendor-

sement and Involve No Special Accom-

modation of Religion; Aguilar v. Felton

Should Be Ov on the Basis of the

Rule Announced in Zobrest v. Catalina Foot-

CS I i i ee i ies 15

Il. THE RULE OF AGUILAR v. FELTON VIO-

LATES THE FREE SPEECH CLAUSE AND

THE FREE EXERCISE CLAUSE OF THE FIRST

AMENDMENT ...........2-0ccceceeceeeeeees 22

iii

TABLE OF CONTENTS - Continued

Page

A. The Free Speech Clause Forbids Discrimi-

nation in Access to a Government Pro-

ram or Benefit on the Basis of the

ligious Content or Viewpoint of Expres-

GEPO RGU oc cscccccccccccccccccccceses 23

B. The Free Exercise Clause Forbids Discrimi-

nation in Access to a Government Program

or Benefit on the Basis of Religious Belief,

Exercise, Affiliation, or Status............ 27

SOT co cvadconcrcadnesevatcncencoscescoss 30

iv

TABLE OF AUTHORITIES

Cases:

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

Board of Education v. Mergens, 496 U.S. 226 (1990) ...17, 22

Board of Education of Kiryas Joel v. Grumet, 114 S.Ct.

DEB (BDDE)... cccccccvcccescccsvscccccveccscess passim

Bowen v. Kendrick, 487 U.S. 589 (1988)........ 10, 11, 22

Capitol Square Review and Advisory Board v. Pinette,

115 S.Ct. 2440 (1995) ...... 2. ccc eee cece eee eeeee 22

Church of Lukumi Babalu Aye v. City of Hialeah, 113

SC0. ZBIF (IGDED. 00 ccccccccrcccccnscccveces 12, 19, 27

Committee for Public Education and Religious Liberty

v. Nyquist, 413 U.S. 756 (1973) ..... 66.6 e eee ees 29

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

FEF CIN cece ccccccccccccecctesesesicoesensteces 13

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

occ ceccessenecevecccecsocdenseeenécesssees 10, 16, 22

Employment Division v. Smith, 494 U.S. 872 (1990)

ococeocecedosssevesvecve ee eeesceccescesseeeee O, 12, 27

Engel v. Vitale, 370 U.S. 421 (1962) ........... ee eeeeee 9

Estate of Thornton v. Caldor, Inc., 472 U.S. 703

CRBEED oc cccccccceccssescceccccoesenesceeseneses 10, 14

Everson v. Board of Education, 330 U.S. 1 (1947)

oc vcccecedeesedbonceddbucesesecsGedueuasetes 11, 12, 27

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

SIE co cvcccsccncceveconcoceeesedeceesedadecas passim

Hartmann v. Stone, 68 F.3d 973 (6th Cir. 1995) ....21, 28

Hobbie v. Unemployment Appeals Commission, 480

CGB. BBG GEOG co cccccccccccccccccccecccvecesovccess 13

Vv

TABLE OF AUTHORITIES - Continued

Page

Lamb’‘s Chapel v. Center Moriches School District, 113

PR SNGE Cire ccccocscccccvcccccccsecnecess passim

Lee v. Weisman, 112 S.Ct. 2649 (1992).......... 9, 11, 22

Lemon ». Kurtzman, 403 U.S. 602 (1971)............ 8, 22

Lynch v. Donnelly, 465 U.S. 668 (1984)........ 10, 14, 15

McDaniel v. Paty, 435 U.S. 618 (1978)............. 12, 23

Peter v. Johnson, No. 4-96-642 (D. Minn. filed 1996)

560d 2606 00d de pVEbSb0se0 eC Cesc vesseCs 1, 3, 4, 20, 24, 25

Pierce v. Society of Sisters, 268 U.S. 510 (1925)...... 6, 29

R.A.V. v. City of St. Paul, 112 S.Ct. 2538 (1992)...... 24

Rosenberger v. Rector and Visitors of the University of

Virginia, 115 S.Ct. 2510 (1995).............04.. passim

Texas Monthly v. Bullock, 489 U.S. 1 (1989)........ 10, 12

Thomas v. Review Board, 450 U.S. 707 (1981) ...... 13, 29

Wallace v. Jaffree, 472 U.S. 38 (1985) .............. 10, 17

West Virginia State Board of Education v. Barnette,

Pe Se Ge PE oc chase ccctcccesceccccccccce 14, 15

Widmar v. Vincent, 454 U.S. 263 (1981)............ 12, 23

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

474 U.S. 481 (1986) .... 2... 6c c cece 10, 11, 15, 19

Zobrest v. Catalina Foothills School District, 113 S.Ct.

BEES CREED ov ccvecerccvccccccccccccccccscccess passim

STATUTES:

Ry EY EE Cob ev ccc cedccdcccvecccccsecces 2, 24

Minnesota Rule 3525.1150.......... cece cccccccccccces 2

vi

TABLE OF AUTHORITIES —- Continued

Page

ARTICLES:

Michael W. McConnell, Accommodation of Religion,

1985S Sup. Ct. Rav. 2... .cccccccsccccecccvecccccces 14

Michael S. Paulsen, Lemon is Dead, 43 Case West-

~ - 2S &@ 5. errr 9, 22

1

INTEREST OF AMICI CURIAE

Amici are litigants in a case currently pending in the

United States District Court for the District of Minnesota,

Peter, et al. v. Johnson, Commissioner, et al., No. 4-96-642,

the resolution of which will be substantially affected by

this Court’s decision in the instant case. Amici are chil-

dren who have physical and cognitive disabilities that

require special education assistance, and the parents of

these children.

Sarah Peter, age five, has Down Syndrome, resulting

in physical and cognitive disabilities that require the

presence of a paraprofessional aide to assist Sarah in her

regular classroom. Her mother, Joan Peter, enrolled Sarah

in the Noah’s Ark Preschool, a Christian Preschool in

Buffalo, a small town in central Minnesota. Mrs. Peter

selected Noah’s Ark because of her religious beliefs and

her desire that these religious values be imparted to

Sarah, and because Noah’s Ark offered the best overall

preschool program for Sarah’s special needs. Mrs. Peter

sought special education services for Sarah, to be pro-

vided at Noah’s Ark, through her local school district,

pursuant to state law.

Aaron Westendorp, age eleven, has very serious dis-

abilities resulting from a brain stem lesion. Aaron is

partially paralyzed from the eyes down, has spastic quad-

riparesis, breathes through a permanent tracheostomy,

eats through a permanent gastrostomy tube, and is

unable to speak. He has full cognitive functions and

communicates through the use of finger spelling. Aaron's

disabilities require the full-time presence of a paraprofes-

sional classroom aide in his regular classroom to help in

adapting classroom tasks to accommodate Aaron’s physi-

cal disabilities, to attend to his personal care needs, and

2

to translate his finger spelling so that he can participate

in regular classroom discussions and activities. Aaron’s

parents, Douglas and Krista Westendorp, enrolled Aaron

in Calvin Christian School, a small Christian K-8 school

in Edina, Minnesota, a suburb of Minneapolis. The West-

endorps’ two older daughters had attended Calvin Chris-

tian School. The family had chosen the school because of

its excellent academic program, its Christian character

__and teaching, and their desire that the Westendorp chil-

dren be taught in accordance with these religious values.

Initially, the Westendorp family obtained private financial

support for Aaron’s special education needs through

their church. When such support ceased to be available,

the Westendorps were forced to withdraw Aaron from

Calvin Christian School.

The State of Minnesota and the local public school

districts in which these families reside refused to provide

special education services to Sarah Peter and Aaron West-

endorp, in the form of paraprofessional classroom assis-

tants, so long as the children were attending religious

private schools. Under state law, both Sarah and Aaron

are entitled to special education services and have been

determined to be entitled to the assistance of a para-

professional classroom aide. State law provides that such

services are to be furnished, when so indicated by the

nature of the child’s needs, on the premises of the child’s

regular school, including a nonpublic school, as long as

such a private school “is not church related, is not con-

trolled by a church, and does not promote a religious

belief.” Minn. Stat. § 123.932, subd. 3a, Minn. Rule

3525.1150, subp. 2. The effect of the Minnesota statutes

and rules is that children with disabilities attending pri-

vate nonreligious schools may receive special education

3

services at their schools, but children with disabilities

attending private religious schools may not.

As a consequence of these state laws and rules (and

the local school districts’ implementation of them), nei-

ther Sarah Peter nor Aaron Westendorp could receive

special education services at the religious schools selected

by their parents. Joan Peter was forced to remove Sarah

from Noah’s Ark Christian Preschool and to enroll her in

a public Head Start program in order to obtain the para-

professional assistance necessary to her education. Sim-

ilarly, Douglas and Krista Westendorp removed Aaron

from Calvin Christian School and enrolled him in a public

elementary school because they could not otherwise

afford to pay for the paraprofessional assistance Aaron

needs for his education.

The Minnesota state statutes and rules governing

provision of special education services by local school

districts — especially the definition of “neutral sites” at

which such services may be provided - are designed to

track this Court’s holding in Aguilar v. Felton, 473 U.S. 402

(1985) and have been so explained in official policy state-

ments of the State Attorney General’s office. Memoran-

dum of Assistant Attorney General Steven Liss (Exhibit G

to Complaint in Peter v. Johnson, No. 4-96-642 (D.Minn.)).

In defending the lawsuit brought by amici, the State of

Minnesota has resisted the families’ requests for declara-

tory and injunctive relief on the ground that Aguilar and

Grand Rapids v. Ball, 473 U.S. 373 (1985) forbid the provi-

sion of paraprofessional assistants on the premises of a

child’s religious nonpublic school. The State contends that

its implementing rules are mandated by Aguilar and

require disparate treatment of children with disabilities

based upon their attendance at a private religious (as

4

opposed to a private nonreligious) school. The State of

Minnesota has sought to distinguish this Court’s decision

in Zobrest v. Catalina Foothills Sch. Dist., 113 S.Ct. 2462

(1993), on the ground that the nature of paraprofessional

services differs from that of a sign-language interpreter,

and that Zobrest did not overrule Aguilar and Grand

Rapids v. Ball, 473 U.S. 373 (1985). See Memorandum of

State Defendants in Opposition to Plaintiffs’ Motion for

Preliminary Injunction at 14 (“Zobrest did not extend to

services beyond those provided by a sign-language inter-

preter who merely translates exactly what is said in

class.”).

Peter v. Johnson is currently awaiting decision on

plaintiffs’ motions for preliminary injunction and for par-

tial summary judgment, and defendants’ motions to dis-

miss. The motions were argued on November 8, 1996.

Obviously, this Court’s disposition of the pending case,

Agostini v. Felton, Nos. 96-552 & 96-553, in particular its

resolution of whether Aguilar v. Felton should be over-

ruled, will have a direct and important effect on amici and

the litigation in which they are parties. In addition, it is

no exaggeration to say that the continued apparent

authority of Aguilar v. Felton and Grand Rapids v. Ball has

forced these children and their families to withdraw from

their private religious schools in order to obtain special

education services to which they are otherwise entitled as

a matter of law. They may attend religious school only at

the cost of abandoning special education benefits that

they desperately need, and which their parents cannot

otherwise afford to provide.

o

5

SUMMARY OF ARGUMENT

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

decided and should be overruled. The correct rule of

decision in this case is supplied by this Court’s decision

in Zobrest v. Catalina Foothills School District, 113 S.Ct.

2462, 2467 (1993) (citation omitted): “When the govern-

ment offers a neutral service on the premises of a sec-

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

way skewed towards religion,’ . . . provision of that

service does not offend the Establishment Clause.” Agui-

lar v. Felton, we submit, is irreconcilable in principle with

this rule. A majority of the members of this Court has

noted this conflict in subsequent cases. See Board of Educa-

tion of Kiryas Joel v. Grumet, 114 S.Ct. 2481, 2498 (O’Con-

nor, J., concurring in part and in the judgment); id. at 2505

(Kennedy, J., concurring in the judgment); id. at 2515

(Scalia, J., joined by Rehnquist, C.J., and Thomas, J., dis-

senting). This case presents an appropriate occasion for

resolving the conflict.

We submit that the Zobrest rule is the correct one. The

Establishment Clause requires that government not

coerce or induce religious exercise; that government's

secular public programs be designed and administered in

a religion-neutral manner; that government accommoda-

tions of religion be neutral as among religions and not

impose substantial burdens on nonbelievers; and that

government not itself engage in religious expression that

endorses religion to such a degree as to impair the politi-

cal standing or religious freedom of nonbelievers or

believers in other faiths.

The decision in Aguilar v. Felton stands outside of -

indeed, in some respects is contrary to - these general

principles delineating the Court’s Establishment Clause

6

jurisprudence. Aguilar depends on a rigid, uncompromis

ing, and artificial “strict separation” that is unsupportel

by the history of the First Amendment and not requirel

to prevent religious coercion, improper endorsement, a

the burdening of nonbelievers. Moreover, Aguilar’s rule 6

not consistent with the principle of neutrality expressel

in Zobrest and so many of the Court’s other cases. Indeec,

we submit that the rule expressed in Aguilar v. Felton -

that a student attending a religious private school may

not receive the benefit of education programs to which hv

or she is otherwise entitled if such programs woull

involve the presence of public school teachers at religiow

schools to carry out the program - affirmatively violate

the neutrality principle. In short, Aguilar’s rule authorize

discrimination against religious exercise and the choice ¢f

religious education.

Amici’s own situation illustrates the problem. Sara

Peter and Aaron Westendorp (and their parents) hav

been told that they may receive special education service

only if they do not attend a private religious school. The

have been put to a cruel choice: sacrifice their constiti-

tional right to choose religious education (Pierce v. Sociey

of Sisters, 268 U.S. 510 (1925); see Employment Division ».

Smith, 494 U.S. 872, 881 (1990)) or sacrifice their statutoy

right to receive crucial special education services. Tle

dilemma for schoolchildren in the instant case is simila,

if less severe: they may receive remedial education only f

they are removed from their schools and made to trave,

sometimes at great inconvenience, to public school site.

In principle, however, the situations are alike: individuas

are deprived of a statutory benefit, or otherwie

penalized in their ability to receive or make use of i,

7

because of the decision to pursue a religious education.

See Aguilar, 473 U.S. at 431 (O’Connor, J., dissenting).

Such a result is surely not compelled by the First

Amendment; indeed, we believe that such an outcome is

affirmatively inconsistent with the First Amendment. As

Justice O’Connor has put it: “The Religion Clauses pro-

hibit the government from favoring religion, but they

provide no warrant for discriminating against religion. . . .

If the government provides this [special] education on-

site at public schools and at nonsectarian private schools,

it is only fair that it provides it on-site at sectarian schools

as well.” Kiryas Joel, 114 S.Ct. at 2498 (O’Connor, J., con-

curring).

That is what this case is about: discrimination. Speci-

fically, it is about whether the Establishment Clause

requires discrimination against religion - against “reli-

gious ideas, religious people, or religious schools” in the

context of secular government programs. Kiryas Joel, 114

S.Ct. at 2498 (O’Connor, J., concurring). We submit that

such discrimination violates the Free Exercise and Free

Speech clauses of the First Amendment. Aguilar needs to

be overruled in order to bring the Court’s Establishment

Clouse jurisprudence into line with the rest of its First

Amendment jurisprudence.

Amici will make two broad points in this brief: First,

the Establishment Clause, properly construed, does not

require the rule of Aguilar. Second, the Free Speech and

Free Exercise clauses forbid the rule of Aguilar. In making

these points, we will highlight the analogous situation of

amici, Sarah Peter and Aaron Westendorp, and show how

Aguilar punishes children and their families because of

their religious exercise and choice of religious education.

+

Al.G JMENT

I. THE ESTABLISHMENT CLAUSE DOES NOT FOR-

BID NEUTRAL PROVISION OF GOVERNMENT

BENEFITS TO STUDENTS ATTENDING PRIVATE

RELIGIOUS SCHOOLS, INCLUDING PROVISION

OF ON-PREMISES SPECIAL OR REMEDIAL EDU-

CATION SERVICES.

The question presented by this case is whether the

Establishment Clause requires some degree of discrimina-

tory treatment of students attending religious schools, in

order to preserve a degree of “separation” of church and

state not dictated by the requirement of neutrality, not

necessary to avoid government coercion of religion, and

not required to avoid improper endorsement of religion.

In doctrinal terms, the question is sometimes cast in

terms of avoiding “excessive entanglement” between

government and religion. Aguilar, 473 U.S. at 409-414

(1985); see Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).

The question here is whether “entanglement” concerns

legitimately may be used to invalidate neutral govern-

ment policies, and thus require exclusion of religious

persons or groups from the equal benefit of secular gov-

ernment programs.

Amici submit that such notions of “separation” and

“entanglement” cannot properly be used to justify depar-

tures from neutrality - that is, discrimination against

religion — in the administration of government programs.

The Establishment Clause does not require such an

extreme and insensitive result; moreover, such a result

9

would be at war with the rest of the First Amendment.

Rather, where the requirement of neutrality is satisfied,

and where the government program involves no coercion

or special endorsement of religious activity, the Establish-

ment Clause is satisfied. To the extent that Aguilar holds

to the contrary — and affirmatively sanctions discrimina-

tion against religion — it should be disapproved.

A. The Establishment Clause Requires Govern-

ment Neutrality, Noncoercion and Nonendorse-

ment With Respect to Religious Exercise; It

Does Not Authorize Discrimination Against

Religion.

It is difficult (and perhaps undesirable) to attempt to

reduce the Establishment Clause to a single judicial “test”

or formula. See Kiryas Joel, 114 S.Ct. at 2498-99 (O’Connor,

J., concurring). The rigid “Lemon test” has, in our view,

rightly been discarded by a majority of the Court. See id.

(O’Connor, J., concurring) (noting Court’s abandonment

of Lemon test); see generally Michael S. Paulsen, “Lemon is

Dead,” 43 Case Western Res. L. Rev. 795 (1993). Nonethe-

less, certain general principles remain clearly marked out

by this Court's cases and can be identified as setting forth

the core governing principles of the Establishment

Clause:

First, government must not coerce or induce religious

exercise. Lee v. Weisman, 112 S.Ct. 2649 (1992); Engel v.

Vitale, 370 U.S. 421 (1962).

Second, government's secular public programs must

be designed and administered in a religion-neutral man-

ner, so as to assure that they involve neither financial

promotion of religion nor financial discrimination against

religious individuals, groups, or speakers. Rosenberger v.

10

Rector and Visitors of the University of Virginia, 115 S.Ct.

2510 (1995); Witters v. Washington Dept. of Services for the

Blind, 474 U.S. 481 (1986); see Bowen v. Kendrick, 487 U.S.

589 (1988).

Third, governmental accommodations of religion

must be reliably neutral among religions and not impose

substantial burdens on nonbelievers. Kiryas Joel, 114 S.Ct.

2481; Texas Monthly v. Bullock, 489 U.S. 1, 27-29 (1989)

(Blackmun, J., concurring); Estate of Thornton v. Caldor,

Inc., 472 U.S. 703, 711 (1985) (O’Connor, J., concurring).

Fourth and finally, government must not itself

engage in religious expression to such a degree as to

impair the political standing or religious freedom of non-

believers or believers in other faiths. Compare, e.g., Lynch

v. Donnelly, 465 U.S. 668 (1984) with County of Allegheny v.

ACLU, 492 U.S. 573 (1989).!

1 We recognize that this last principle identifies an area in

which the Court has been intensely divided. Compare Allegheny,

492 U.S. at 614 (Blackmun, J.) (stating holding of the Court)

(invalidating government display of a creche but not of a

menorah) with id. at 645-55 (Brennan, J.) (creche display and

menorah display both unconstitutional); id. at 663 (Kennedy, J.)

(neither creche display nor menorah display unconstitutional).

We submit that the formulation set forth in the text is an

accurate and useful restatement of the non-endorsement

principle as expounded by members of this Court, despite

differences that may exist as to its relevance or application to

any particular case. The crucial operative features, in our view,

are that it applies only to situations of government speech (literal

or symbolic) and that it invalidates such expression only when it

has or is likely to have the actual effect of interfering with

persons’ religious or political liberty. It does not apply merely

because some individual might express a sense of subjective

affront, no matter how unreasonable or idiosyncratic. See

Wallace v. Jaffree, 472 U.S. 38, 83 (1985) (O’Connor, J.,

11

These four touchstones fit together to form a coher-

ent and unified whole: (i) noncoercion, (ii) neutrality in

government's secular programs, (iii) neutrality (and non-

coercion) in government accommodation of religion, and

(iv) nonendorsement. This Court has noted that, at a

minimum, the Establishment Clause forbids government

compulsion of religious worship or exercise through

means direct or indirect. Lee v. Weisman, 112 S.Ct. 2649

(1992). The noncoercion principle is reinforced by the

requirement that government's public programs be oper-

ated in a manner that is neutral with respect to religion.

Religion may be neither favored nor disfavored within

such programs. Thus, a government program must nei-

ther be “skewed towards religion,” Zobrest, 113 S.Ct. at

2467 (quoting Witters v. Washington Dept. of Services for

Blind, 474 U.S. 481, 488 (1986)); see Kendrick, 487 U.S. at

608-609, nor impose special burdens or disabilities on

persons or groups because of their religious status, affil-

iation, identity or expression. “State power is no more to

be used so as to handicap religions, than it is to favor

them.” Everson v. Board of Education, 330 U.S. 1, 18 (1947).

In this respect, the neutrality principle unites the

Court's Establishment Clause, Free Exercise Clause, and

Free Speech Clause jurisprudence. See, e.g., Rosenberger,

concurring). But in situations where government speech

actually impairs political and religious liberty, there is an actual

departure from the core requirement of neutrality.

As we argue below, however, mere speculation concerning

the possibility that some will perceive a “symbolic union” of

religion and government merely from the fact of government's

provision of a neutral, secular benefit, on equal terms, to

religious beneficiaries, is surely not sufficient to identify a

violation of the Establishment Clause. See infra at 16-17.

12

115 S.Ct. at 2517 (Free Speech Clause forbids exclusion

from a government benefit on the basis of a person’s or

group’s religious “premise,” “perspective,” or “stand-

point”); Lamb’s Chapel v. Center Moriches Sch. Dist., 113

S.Ct. 2141 (1993) (Free Speech Clause forbids discrimina-

tion on basis of religious viewpoint or perspective);

Church of Lukumi Babalu Aye v. City of Hialeah, 113 S.Ct.

2217, 2226 (1993) (unconstitutional to discriminate against

religion or prohibit conduct only when engaged in for

religious reasons); Employment Division v. Smith, 494 U.S.

872, 877 (1990) (“The government may not. . . impose

special disabilities on the basis of religious views or

religious status.”).?

The neutrality principle is, in a sense, an extension of

the noncoercion principle, for the obvious reason that

departures from neutrality - in either direction - will

tend to have coercive effects on religious exercise. Favori-

tism or special financial support of religious exercise or

affiliation, for example, will tend to induce such partici-

pation or affiliation, in order to gain the unique benefit.

Cf. Texas Monthly v. Bullock, 489 U.S. 1 (1989) (striking

2 See also Widmar v. Vincent, 454 U.S. 263 (1981)

(unconstitutional to discriminate against religious speech in a

limited public forum); McDaniel v. Paty, 435 U.S. 618 (1978)

(unconstitutional for a State to exclude a minister from

eligibility for public office on the basis of religious exercise,

affiliation, or occupation); id. at 639 (Brennan, J., concurring in

the judgment) (“[G]overnment may not use religion as a basis of

classification for the imposition of duties, penalties, privileges

or benefits.”); Everson, 330 U.S. at 16 (government “cannot

exclude . . . the members of any . . . faith, because of their faith,

or lack of it, from receiving the benefits of public welfare

legislation.”).

13

down sales tax exemption exclusively for religious pub-

lications). Likewise, discrimination or special financial

penalties attributable to religious exercise or affiliation

will tend to discourage such participation or affiliation, in

order to avoid the penalty. Cf. Rosenberger, 115 S.Ct. 2510;

see also Thomas v. Review Board, 450 U.S. 707, 714-18 (1981)

(financial penalty constitutes a “burden” on religious free

exercise).

The requirements of noncoercion and neutrality carry

over into a third area: accommodation of religion. It is

well established that “ ‘government may (and sometimes

must) accommodate religious practices, and that it may

do so without violating the Establishment Clause.’ ” Cor-

poration of Presiding Bishop v. Amos, 483 U.S. 327, 334

(1987) (quoting Hobbie v. Unemployment Appeals Commis-

sion, 480 U.S. 136, 144-145 (1987)). Of course, where gov-

ernment seeks to accommodate religion, it is being

specially cognizant of religion. This is different from

other secular programs of government, in that the gov-

ernment’s “secular interest” is one of furthering religious

liberty. The requirements of neutrality and noncoercion

play out slightly differently in this context. Government

need not disregard religion; to the contrary, taking account

of religious differences and unique needs is what accom-

modation is all about. But government may not discrimi-

nate among religions in making such accommodations.

Indeed, this Court has struck down accommodations

where there was insufficient assurance that accommoda-

tion would be granted to others in like circumstances.

Kiryas Joel, 114 S.Ct. at 2493-94. Nor may government, in

the guise of accommodation, impose such large, unequal

burdens on nonbelievers as would constitute, in effect, an

inducement or coercion to engage in the accommodated

14

religious practice. Cf. Estate of Thornton, 472 U.S. 703. In

short, government accommodation of religion is permiss-

ible only when it is neutral among religions, facilitates

religious practices independently adopted by their adher-

ents rather than induces them, and does not amount to a

transfer of resources or benefits from nonbelievers to

believers in a manner unrelated to relieving genuine bur-

dens on the free exercise of religion. See generally Michael

W. McConnell, Accommodation of Religion, 1985 Sup. Ct.

Rev. 1.

The fourth principle, nonendorsement, has some-

times provoked division among the members of this

Court. However, the nonendorsement principle can be

seen as consistent with the notions of neutrality and

noncoercion. “Nonendorsement” is the test applicable to

government religious speech (including symbolic expres-

sion); that is, it applies where the government is not being

neutral about religion, in order to test whether the effect

of such government religious speech is, in essence, to

coerce compliance with some government-sponsored

notion of religious orthodoxy. Cf. Lynch v. Donnelly, 465

U.S. 668, 687 (1984) (O’Connor, J., concurring). The non-

endorsement principle’s roots can be traced to the famous

statement of Justice Jackson for the Court in West Virginia

State Board of Education v. Barnette: “If there is any fixed

star in our constitutional constellation, it is that no offi-

cial, high or petty, can prescribe what shall be orthodox in

politics, nationalism, religion, or other matters of opinion

or force citizens to confess by word or act their faith

therein.” 319 U.S. 624, 642 (1943).

En

15

Government prescription of religious orthodoxy is the

harm to be avoided in this context - not mere govern-

ment speech that touches on religious themes or acknowl-

edges the religious observances of the people. The

relevant inquiry, we submit, is whether government has

itself engaged in religious expression that endorses reli-

gion to such a degree as to impair the political standing

or religious freedom of nonbelievers or believers in other

faiths. Cf. Lynch, 465 U.S. at 687 (O’Connor, J., concur-

ring). Such an approach is consistent with Barnette’s con-

demnation of government prescription of orthodoxy

generally, through its use of messages and symbols and

through the use of state power to compel or induce

adherence to such orthodoxy. So understood, the nonen-

dorsement principle harmonizes with the other cor-

nerstone principles of noncoercion, neutrality, and equal

accommodation.

B. The Programs at Issue Here Satisfy the Estab-

lishment Clause’s Core Requirements of Neu-

trality, Noncoercion, and Nonendorsement and

Involve No Special Accommodation of Reli-

gion; Aguilar v. Felton Should Be Overruled on

the Basis of the Rule Announced in Zobrest v.

Catalina Foothills School District.

We think it plain that the Title I / Chapter I arrange-

ments at issue in Aguilar and again today - and other

programs like it — satisfy these four principles. There is

no plausible claim that allowing remedial or special edu-

cational services to be provided on the premises of a

religious school by public employees coerces religious

exercise. The students’ families independently chose reli-

gious education. Zobrest, 113 S.Ct. at 2469; Witters, 474

U.S. at 487. They receive no special “benefit” from being

16

eligible to receive secular services on the premises of

their regular school of attendance; they receive only what

other similarly situated needy students receive. Equal

inclusion within a public benefit program cannot be

thought “coercive.”

It is equally plain that inclusion on equal terms is

neutral and furthers the secular purpose of reaching dis-

advantaged students wherever they are — be it public

school or religious or nonreligious private school — rather

than imposing the additional cost and hardship of forcing

these disadvantaged children to travel to public school

premises. See Aguilar, 473 U.S. at 423-425 (O’Connor, J.,

dissenting). The neutrality of the program is especially

evident where the program at issue supplements, rather

than supplants, a private school’s existing curriculum. Id.

at 425-426. Under such circumstances, there can be no

possibility that the program is really a disguised attempt

affirmatively to sponsor, through preferential funding,

religious instruction. Indeed, quite the contrary, the

arrangement mandated by Aguilar has the consequence of

disfavoring religious instruction by imposing unique pen-

alties and burdens on families who choose it.

The program at issue is not an “accommodation” of

religion in the sense of government voluntarily exempt-

ing some religious person or group from a rule of other-

wise general applicability. The rule that the New York

school board hopes to use is religion-blind: on-premises

services for everyone who is eligible under strictly secu-

lar criteria.

Nor would such a practice constitute “endorsement”

of religion. This is not a case of government embrace of a

religious symbol, cf. Allegheny, supra, or government pre-

scription as to the preferred use of a “Moment of Silence”

— ——— ©... eee

17

in public schools, cf. Wallace v. Jaffree, 472 U.S. 38 (1985). It

is a case of a genuinely neutral government program.

With respect, the “symbolic union” argument of the

majority in Grand Rapids v. Ball, 473 U.S. 373 (1985), the

companion case to Aguilar, is simply unpersuasive, and

has not stood the test of time. Any suggestion that neu-

tral provision of services constitutes an actual endorse-

ment of religion is, of course, specious. The “symbolic

union” argument thus reduces to the proposition that

schoolchildren or other members of the public will

wrongly view neutrality as sponsorship and that the Court

should indulge the error and abandon neutrality in favor

of actual discrimination against religion.

This Court emphatically rejected such an approach in

Board of Education v. Mergens, finding that schoolchildren

and the general public are able to understand that a

policy of neutrality does not constitute sponsorship or

endorsement of religion. 496 U.S. 226, 250 (1990). Just as a

reasonable observer (including students) should under-

stand “that a school does not endorse or support student

speech that it merely permits on a nondiscriminatory

basis,” id. at 250, so too, a reasonable observer should be

able to understand that equal access to a secular govern-

ment education benefit or service does not constitute

government sponsorship of religion. Mergens, we submit,

highlights the error of the “symbolic union” analysis as

applied in Grand Rapids and significantly undermines its

authority as precedent.

The principles of neutrality, noncoercion, and nonen-

dorsement thus all point in one direction: the rule of

18

Aguilar and Grand Rapids is not required by the Establish-

ment Clause, nor is it consistent with the central animat-

ing principles this Court has embraced. The correct rule is

as this Court stated it more recently in Zobrest:

When the government offers a neutral service

on the premises of a sectarian school as part of a

general program that ‘is in no way skewed

towards religion,’ . . . provision of that service

does not offend the Establishment Clause.

113 S.Ct. at 2467 (citation omitted).

That rule, we submit, controls this case. What is at

issue here is a neutral, secular program providing a bene-

fit to needy schoolchildren. Under the standards set forth

in Zobrest, there is simply no serious Establishment

Clause difficulty with neutral provision of remedial or

special education services to eligible students attending

religious schools, on the same basis as they would be

provided to eligible students attending nonreligious pri-

vate or public schools. The Establishment Clause forbids

favored treatment of religion, not neutral treatment.

The rule of Zobrest compels repudiation of Aguilar

and Grand Rapids. This Court held in Zobrest that neutral

provision of benefits does not become unconstitutional

merely because those benefits are provided on the prem-

ises of, or in connection with instruction at, a private

religious school. Aguilar and Grand Rapids, distilled to

their essence, hold exactly the opposite. They are incon-

sistent with the overriding Establishment Clause mandate

of neutrality and equal treatment. They are also inconsis-

tent with the Free Exercise Clause and Free Speech

Clause requirements that persons engaged in religious

exercise and expression not be discriminated against

within government programs on the basis of that reli-

gious activity. Rosenberger, 115 S.Ct. 2510 (1995); Lamb’s

19

Chapel, 113 S.Ct. 2141 (1993); Lukumi, 113 S.Ct. 2217 (1993). In

short, the rule of Aguilar and Grand Rapids is, in principle,

affirmatively inconsistent with this Court’s subsequent deci-

sions in Zobrest, Rosenberger, Lamb’s Chapel, Lukumi, and Wit-

ters — and arguably inconsistent with other decisions as well.

Under these circumstances, we submit, it is appropri-

ate and important that Aguilar and Grand Rapids be for-

mally abandoned. Lower courts and, even more

frequently, government agencies, are continuing to oper-

ate on the assumption that Aguilar and Grand Rapids

forbid them to provide on-site education benefit pro-

grams to children attending private religious schools, in

effect excluding them from such benefits.

Amici’s own situation is illustrative. Minnesota’s Spe-

cial Education statutes and regulations, as interpreted

3 Though the question was not specifically presented in

Kiryas Joel, a majority of the members of the Court openly

questioned the correctness and doubted the continued validity

of Aguilar and Grand Rapids. Board of Education of Kiryas Joel v.

Grumet, 114 S.Ct. 2481, 2498 (1994) (O’Connor, J., concurring in

part and in the judgment) (“The Court should, in a proper case,

be prepared to reconsider Aguilar, in order to bring our

Establishment Clause jurisprudence back to what I think is the

proper track — government impartiality, not animosity, towards

religion.”); id. at 2505 (Kennedy, J., concurring in the judgment)

(“The decisions in Grand Rapids and Aguilar may have been

erroneous. In light of the case before us, and in the interest of

sound elaboration of constitutional doctrine, it may be

necessary for us to reconsider them. . . . A neutral aid scheme,

available to religious and nonreligious alike, is the preferable way to

address problems such as the Satmar handicapped children have

suffered.”) (emphasis added); id. at 2515 (Scalia, J., joined by

Rehnquist, C.J., and Thomas, J., dissenting) (“I heartily agree

that these cases [Grand Rapids and Aguilar], so hostile to our

national tradition of accommodation, should be overruled at the

earliest opportunity.”).

20

and applied by state education officials, forbid on-site

provision of paraprofessional classroom aides to students

whose disabilities require such services, if the students

attend a private religious school. These state statutes and

regulations are binding on the local school districts that

serve Aaron Westendorp and Sarah Peter. Accordingly,

the school districts have refused to provide special educa-

tion services at the religious schools chosen by the par-

ents of these children. The State of Minnesota, and the

respective local school districts, have sought to distin-

guish Zobrest on the ground that there exists a “critical

distinction between a sign language interpreter and a

paraprofessional /instructional aide.” State Defendants’

Memorandum in Opposition to Plaintiffs’ Motion for Par-

tial Summary Judgment, Peter v. Johnson, No. 4-96-642 (D.

Minn. 1996) (decision pending). Aguilar and Grand Rapids,

the government officials contend, control the latter situa-

tion.

Thus, Aaron Westendorp, an 11-year-old with severe

paralysis through much of his body, is denied a para-

professional because he needs a translator to interpret his

communications (the exact reverse of the situation in

Zobrest) and to adapt classroom tasks to accommodate his

disability. This, the government officials and lawyers say,

starts to stray too close to an “instructional” activity, and

so is banned by Aguilar. Sarah Peter, a five-year-old with

Down Syndrome, requires, because of her physical and

cognitive disabilities, a paraprofessional to help her par-

ticipate in her regular preschool program. This too, offi-

cials say, comes too close to “instruction.” Aguilar has

thus produced a bright-line rule that Sarah Peter may not

receive a paraprofessional if her preschool program at

Noah’s Ark Preschool includes Bible stories — including,

21

of course, the story of Noah’s Ark - or a prayer before the

morning snack. But see Hartmann v. Stone, 68 F.3d 983 (6th

Cir. 1995) (invalidating U.S. Army regulation prohibiting

such religious activities during day care conducted in

program providers’ homes on base).

To be sure, the distinctions drawn by the Minnesota

government officials in these cases are insensible and

insensitive; they are doubtless wrong even under the

Aguilar regime. But our point here is more fundamental:

The continued existence of Aguilar and Grand Rapids as

precedents makes it both possible and inevitable for school

officials to draw exactly such distinctions and devise such

misguided bright-line prophylactic rules, with the result that

children with disabilities or other special needs, whose families

have chosen religious education, are discriminated against on

the basis of that choice.

We urge this Court to reaffirm that the Establishment

Clause forbids government coercion of religious exercise,

forbids selective endorsement of religion to such a degree

as to impair the exercise of political or religious liberty,

forbids preferential accommodations, and in general

requires government neutrality toward religion. See Kiryas

Joel, 114 S.Ct. at 2505 (Kennedy, J., concurring in the

judgment). We simultaneously urge the Court to reiterate

and emphasize that the Establishment Clause does not

authorize or require any form of discrimination against

religion, including rules that punish religious practice by

imposing special disabilities on eligibility to participate

in secular government programs. With respect, we submit

that as long as Aguilar and Grand Rapids stand as

22

unreversed precedents of this Court, that message will

not be clear.*

Il. THE RULE OF AGUILAR v. FELTON VIOLATES

THE FREE SPEECH CLAUSE AND THE FREE

EXERCISE CLAUSE OF THE FIRST AMEND-

MENT.

Our final point is implicit in much of what we have

already said: The rule of Aguilar is not only an unsound

* Relatedly, as a doctrinal matter, we urge this Court to

formally abandon “excessive entanglement” — the linchpin of

Aguilar - as an independent test under the Establishment

Clause. As noted above, the test as formulated in Lemon is

incompatible with the rest of Establishment Clause analysis and

its application frequently contradicts basic principles of the Free

Exercise and Free Speech clauses. In our view, “entanglement”

concerns properly belong on the free exercise side of the coin:

“[E]}xcessive entanglement of the state with religion is a form of

burden on free religious exercise, abridging the liberty of the

person or institution ‘entangled’ with, not a means of coercing,

promoting, or even endorsing religion.” Paulsen, Lemon is Dead,

supra, 43 Case Western L. Rev. at 809.

A majority of the Court has long criticized the entanglement

prong of Lemon as unsound in principle and unworkable in

practice, see Bowen v. Kendrick, 487 U.S. 589, 615-17 (1988)

(collecting cases), and the Court as a whole has not applied the

entanglement test to invalidate government action in any case

since Aguilar. See Rosenberger, 115 S.Ct. 2510 (1995); Capitol

Square Review and Advisory Board v. Pinette, 115 S.Ct. 2440 (1995);

Kiryas Joel, 114 S.Ct. 2481 (1994); Zobrest, 113 S.Ct. 2462 (1993);

Lee v. Weisman, 112 S.Ct. 2649 (1992); Mergens, 496 U.S. 226

(1990); Allegheny, 492 U.S. 573 (1989); cf. Lamb’s Chapel, 113 S.Ct.

2141 (1993) (noting test arguendo and rejecting its applicability).

See generally Paulsen, Lemon is Dead, supra, 43 Case Western L.

Rev. at 808-819 (1993) (noting decline and abandonment of

Lemon test and ascent of noncoercion and neutrality as the

central norms of Establishment Clause jurisprudence).

23

interpretation of the Establishment Clause, but one that

affirmatively violates the Free Exercise and Free Speech

clauses. If a state legislature of its own accord enacted a

statute providing that education benefits or services

should be open to all on an equal basis except those

attending religious schools (who are disqualified or sub-

jected to onerous burdens making their participation dif-

ficult or impossible), we have no doubt that this Court

would strike it down as a core violation of the First

Amendment. This, we believe, is the clear lesson of this

Court’s decisions in Rosenberger, 115 S.Ct. 2510 (1993),

Lamb’s Chapel, 113 S.Ct. 2141 (1993), Widmar v. Vincent, 454

U.S. 263 (1981), and McDaniel v. Paty, 435 U.S. 618 (1978).

The same principle should apply where the govern-

ment action in question is a judicial decision rather than a

statute. In this sense, Aguilar itself violates the First

Amendment. We offer two brief points in elaboration:

First, government policies or actions that exclude or dis-

criminate against persons or groups on the basis of reli-

gious expression, affiliation, viewpoint, or identity

violate the Free Speech Clause. Second, government poli-

cies or actions that exclude or discriminate against per-

sons or groups on the basis of religious exercise,

affiliation, identity, or motivation likewise violate the

Free Exercise Clause. Aguilar and Grand Rapids violate

both principles.

A. The Free Speech Clause Forbids Discrimination

in Access to a Government Program or Benefit

on the Basis of the Religious Content or View-

point of Expressive Activity.

Few propositions are more central to the First

Amendment than the proposition that, in the absence of

24

compelling justification, government must not discrimi-

nate against or deny a benefit to a person because of the

content of his speech or expression. This Court has made

clear that content-based discrimination against speech is

“presumptively invalid.” R.A.V. v. City of St. Paul, 112

S.Ct. 2538, 2542 (1992). This includes government policies

that exclude persons or groups from benefit programs or

that make it more difficult or burdensome to participate

in such programs, on the basis of the content of their

speech or expressive conduct - including the expression

of religious views and ideas. Rosenberger, 115 S.Ct. at 2516;

Lamb's Chapel, 114 S.Ct. at 2147-48 (“[T]he First Amend-

ment forbids the government to regulate speech in ways

that favor some viewpoints or ideas at the expense of

others.”) (original quotation marks and citations omit-

ted).

The rule of Aguilar violates these principles. Aguilar

holds that government may provide secular remedial

education services on the premises of public schools or

non-religious private schools, but is constitutionally for-

bidden from providing the same services at religious

private schools. This is a content-based, viewpoint-based

regulation. A government benefit is provided to eligible

persons except those who have chosen a religious-based

education.

The Minnesota statutes and regulations at issue in

Peter v. Johnson — derived from Aguilar — are explicit in

this regard, making eligibility for a government benefit

depend on the content and viewpoint of religious educa-

tion. Special education services may be provided on the

premises of private schools, as long as the school “is not

church related, is not controlled by a church, and does

not promote a religious belief.” Minn. Stat. § 123.932,

25

subd. 9. It is the religious content of a school’s program -

the fact that the school “promote[s] a religious belief” -

that supplies the basis for exclusion from special educa-

tion benefits for children attending that school. It is the

religious viewpoint of the school - the fact that it is

“church-related” and thus religious in orientation and

outlook — that disqualifies its students from receiving

benefits to which they otherwise would be entitled. If a

school promotes non-religious beliefs, or a secular philos-

ophy, or some other system of values and principles (or

none at all), parents may choose such a school for their

child without forfeiting special education services. Only

one perspective selected by parents for their children -

religion — is singled-out as the basis for exclusion.

A family’s choice of religious education is the choice

of a particular expressive message. The parents of the

children in Aguilar and the children in Peter have chosen

religious schools for their children in whole or in part

precisely because of the schools’ religious messages and

viewpoints and their desire to have such messages,

values, and views transmitted to their children. In a very

real sense, education is expression - of viewpoints,

values, traditions —- and the exercise by parents of the

choice of religious education is the choice of a particular

expressive viewpoint they wish conveyed to their chil-

dren.

Clearly, discriminatory treatment by government,

based upon the exercise of that expressive choice, is a

presumptive violation of the Free Speech Clause. It is the

“avowed religious perspective” (Rosenberger, 115 S.Ct. at

2518) of religious elementary and secondary schools, and

the fact that they provide education “from a religious

standpoint” (Lamb’s Chapel, 113 S.Ct. at 2147) that triggers

26

the Aguilar rule. And clearly, the effect of that rule is

discriminatory: Because of the religious content and

viewpoint of the schools they attend (and that their par-

ents have chosen), students attending religious schools

are denied a benefit — on-site provision of education ser-

vices, the method deemed most educationally appropri-

ate to the students’ situations.

We submit, therefore, that the rule of Aguilar is not

only mistaken as a matter of Establishment Clause law,

but forbidden as a matter of Free Speech law. Under this

Court’s cases, the rule of Aguilar, if adopted voluntarily

as a legislative matter, would violate the Free Speech

Clause. This, of course, is an important indicator that

Aguilar is an unsound interpretation of the Establishment

Clause. The First Amendment is not a self-contradiction.

For Aguilar to be correct, however, the Court must both

reaffirm an extreme and destructive interpretation of the

Establishment Clause and hold that the Establishment

Clause defeats the basic principles of Free Speech that

would otherwise govern. The Court has consistently

rejected that approach in the past, see Rosenberger, 115

S.Ct. at 2522 (“More than once have we rejected the

position that the Establishment Clause even justifies,

much less requires, a refusal to extend free speech rights

to religious speakers who participate in broad-reaching

government programs neutral in design.”) (collecting

cases), and it should reject that approach here.

27

B. The Free Exercise Clause Forbids Discrimina-

tion in Access to a Government Program or

Benefit on the Basis of Religious Belief, Exer-

cise, Affiliation, or Status.

The Free Exercise Clause argument closely parallels

the Free Speech Clause analysis. Just as the Free Speech

Clause forbids government discrimination on the basis of

religious expression, views, or ideas, the Free Exercise

Clause forbids discrimination on the basis of religious

belief, exercise, status, or affiliation.

Controversies concerning the Free Exercise Clause in

recent years have focused on whether that clause may

require special accommodation of religion, in the form of

exemptions from laws of general applicability, where a

facially neutral law or legal rule of general applicability

uniquely burdens the free exercise of a particular reli-

gious practice. See generally Employment Division v. Smith,

494 U.S. 872 (1990). However, one principle remains at

the agreed core of the Free Exercise Clause: Government

must not discriminate against religion or religious exer-

cise, in any manner, including within the context of gov-

ernment benefit programs. Id. at 877 (“The government

may not. . . impose special disabilities on the basis of

religious views or religious status.”); accord Church of

Lukumi Babalu Aye, 113 S.Ct. at 2226 (holding that “at a

minimum,” the Free Exercise Clause prohibits govern-

ment discrimination against religion); McDaniel v. Paty,

435 U.S. 618, 639 (Brennan, J., concurring) (“[G]overn-

ment may not use religion as a basis of classification for

the imposition of duties, penalties, privileges or bene-

fits.”); Everson, 330 U.S. at 16 (government “cannot

exclude . . . the members of any . . . faith, because of their

faith, or lack of it, from receiving the benefits of public

28

welfare legislation.”); Hartmann v. Stone, 68 F.3d 973 (6th

Cir. 1995) (unconstitutional discrimination under Free

Exercise Clause for government to exclude religious child

care providers from eligibility to participate in Army

child care program).

The rule of Aguilar violates this core Free Exercise

Clause requirement of nondiscrimination on the basis of

religion. Aguilar requires that unique disabilities be

imposed on program beneficiaries — here, children eligi-

ble for remedial or special education services — because of

their exercise of a religious choice and affiliation with a

school that has a religious identity or mission. As mem-

bers of this Court observed in Aguilar, the disability

imposed is not an insignificant one: impoverished chil-

dren are forced to receive remedial education away from

their usual schools, in circumstances not conducive to the

most educationally effective method of providing them,

and many needy children will be deprived of these ser-

vices altogether - on the basis of religion. Aguilar, 473

U.S. at 431 (O’Connor, J., dissenting) (noting that “the

Court's decision is tragic” for more than 20,000 children

in New York City alone, and for others who live in cities

“where it is not economically and logistically feasible to

provide public facilities for remedial education adjacent

to the parochial school.”). For many more, the strains and

difficulties in traveling to a different school to receive

remedial or special education assistance will lead parents

to choose to have their children forgo the benefit alto-

gether. See, e.g., Kiryas Joel, 114 S.Ct. at 2485.

The situations of amici, Sarah Peter and Aaron West-

endorp, once again illustrate the point. The nature of the

education benefits to which these children are entitled are

29

on-site paraprofessionals to assist them with their disabil-

ities, so that they can remain in their regular classroom

environments. If on-site services cannot be provided,

Sarah and Aaron lose the benefit entirely. If they are

enrolled in religious schools, they cannot have the benefit

of on-site paraprofessionals. They have been compelled

to abandon their chosen private religious schools, in

order to receive the special education services they need,

because of the rule of Aguilar.

Seeking an education uw der religious auspices or

with a religious orientation is a constitutional right pro-

tected under the Free Exercise Clause and allied constitu-

tional provisions. Committee for Public Education and

Religious Liberty v. Nyquist, 413 U.S. 756, 788 (1973); Pierce

v. Society of Sisters, 268 U.S. 510 (1925); cf. Smith, 494 U.S.

at 881. It is well established that government may not

require a private individual to forfeit Free Exercise

Clause rights as a condition of eligibility for benefits or

participation in a government program. Thomas, 450 U.S.

at 716. The rule of Aguilar, however, produces exactly

such a result: Families like the Peter family and the

Westendorp family are put to a choice of forfeiting their

rights to enroll their children in religious schools or for-

feiting valuable special education benefits. The imposi-

tion of the penalty of loss of special education benefits, or

denial of equal opportunity to benefit from such pro-

grams, as a consequence of choosing a religious school, is

a clear violation of the Free Exercise Clause of the First

Amendment.

30

CONCLUSION

For the forgoing reasons, Aguilar v. Felton should be

overruled. The judgment of the Court of Appeals should

be reversed.

Respectfully submitted,

MICHAEL STOKES PAULSEN

c/o University of

Minnesota Law School

229 19th Ave. S.

Minneapolis, MN 55455

Danie. L. Bow Les MICHAEL JOSEPH WoOopRUFF

DanieL KapDLecC Counsel of Record

LARKIN, HorFMAN, DALy Scott J. Warp

& Linpcren, LTD. ]. MattHew SZYMANSKI

1500 Norwest Financial GAMMON & GRANGE, P.C.

Center 8280 Greensboro Dr.

7900 Xerxes Ave. S. McLean, VA 22102-3807

Bloomington, MN

55431-1194

Of Counsel

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