Amicus Curiae Brief — Agostini v. Felton

Supreme Court, U.S.

ge GS A Se

IN THE SUPREME COURT OF THE UNITED STATES 3

OCTOBER TERM, 1996

RACHEL AGOSTINI, ET AL.,

Petitioners,

v.

BETTY-LOUISE FELTON, ET AL.,

Respondents.

CHANCELLOR OF THE BOARD OF EDUCATION, ET AL.,

Petitioners,

v.

BETTY-LOUISE FELTON, ET AL.,

Respondents.

BRIEF AMICUS CURIAE OF THE

UNITED STATES CATHOLIC CONFERENCE

IN SUPPORT OF PETITIONERS

MARK E. CHoPpKo*

General Counsel

JOHN A. LIEKWEG

Associate General Counsel

JEFFREY HUNTER MOON

Solicitor

UNITEDSTATES CATHOLIC CONFERENCE

3211 Fourth Street, N.E.

Washington, D.C. 20017

*Counsel of Record (202) 541-3309

SUMMARY OF ARGUIBGENT 20. ccc cece eens 2

ee ee ee Ee PT Oe 4

Aguilar v. Felton Has Institutionalized

Significant Jurisprudential and Educational

ee 4

A. Aguilar \s Inextricably Rooted in

Lemon, and Its Suspect

Interpretation of Constitutional

ER 4

B. Aguilar Has Created Significant and

Expensive Difficulties, Harmful Both

to Needy Children and the Common

GUI oo ce eis cc ivccces 9

A New Approach to the Interpretation

of the Establishment Clause Must Be

I as secede wksescccvecccesss 14

A. A New Interpretational Guide Should

Be Rooted in the History of the

Religion Clauses and Capable of

Consistent Application ............... 17

(continued)

B. This Court Should Insist That

Cooperative Efforts Between

Religious and Governmental

Institutions Be Tested According

to Whether It Can be Demonstrated

That the Program Actually

Impairs Personal Religious Liberty

or Institutional Autonomy ...........- 21

Ill. | Aguilar Must be Overturned ..............-. 25

CONCLUSION 2... ncccvccsccccsvccvsvcccscscess 28

TABLE OF AUTHORITIES

Page

Cases

Aguilar v. Felton,

CE ae passim

Barnes v. Cavazos, 966 F.2d 1056 (1992),

No. C80-0501-L(A)

EE ee 13

Board of Education v. Alexander,

CRAG L CULL Seb cW ec cece be. 13

Board of Education of Kiryas Joel Village

School District v. Grumet,

IED wins cc cccccccees passim

Bowen v. Kendrick,

ee 8, 22

Bowen v. Roy, 476 U.S. 693 (1986) ..... 2... 6.060... 25

Capital Square v. Pinette,

EE 18

Chrysler Corp. v. Brown,

sa os wo cbUUV eb v0 ve 7

Church of Lukumi Babalu Aye v. City of Hialeah,

ES 20, 21, 22

Committee for Public Education v. Nyquist,

iit. Ccebacceeecees+ ees 26

TABLE OF AUTHORITIES

Committee for Public Education and Religious Liberty

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

F.Supp. 842 (E.D.N.Y. 1996) ............ 3

Corporation of Presiding Bishop of the Church

of Jesus Christ =: Amos,

483 U.S. 327 (1987) ............-. VARS

County of Allegheny v.

ACLU, Greater Pittsburgh Chapter,

GB UE GRE 6c dd idowe ds ccevces 6, 18, 21

Edwards v. Aguillard,

Mae SOE... dilsddiciddtddins 6

Employment Division v. Smith,

GESTS, Gee CHS oc ccc cbbccdivescccdvece 9

Everson v. Board of Education,

Ss SE bcctcccccescceeetss 16, 22, 24

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

TIO Fee 0 cc cccccccceccecccvcess: 10

Harmon v. Dreher,

17 S.C. Eq. (Speers Eq.) 87 (1843) ........... 22

Hobbie v. Unemployment Appeals Comm'n of Fia.,

yg Re Pre 20

TABLE OF AUTHORITIES

Hunt v. McNair,

So ge RR TT ee ee 20

Lamb's Chapel v. Center Moriches

Union Free School District,

i 18

Larkin v. Grendel's Den, Inc.,

Ee 23

Lee v. Weisman,

Ee A ee ee 21

Legal Tender Cases,

79 U.S. (12 Wall.) 457 (1871) ... 00.0000... 7,24

Lemon v. Kurtzman,

i Ne a eo Oe ae passim

Lynch v. Donnelly,

465 U.S. 668 (1984) ................... passim

Marsh v. Chambers,

a 6, 15

McCollum v. Board of Education,

EN nds occ occooceucceoces 14

McGowan v. Maryland,

a is 17, 22

vi

TABLE OF AUTHORITIES

Meek v. Pittenger,

— pl & 7 eee ee Pree 24

Meyer v. Nebraska,

y LIER fT. . Srerrrrr sr er 27

NLRB v. Catholic Bishop of Chicago,

GEDUD. GO CIGAD 5 oc ccdiccdivceceveess. 9,23

Pacific Gas and Elec. Co. v. Public Utils. Comm’n.,

i) |G) rere roe 7

Pierce v. Society of Sisters,

_ , & | 21,27

Pulido v. Cavazos,

728 F. Supp. 574 (W.D. Mo. 1989) ........ 12, 13

Roemer v. Maryland Board of Public Works,

4!) ee 8, 19, 20

Rosenberger v. Rector of the University of Virginia,

jij le®- [| Brrr iris 19

Schmidt v. Bishop,

779 F.Supp. 321 (S.D.N.Y. 1991) ............. y

School District of Abington Township v. Schempp,

ot) § 0 ee ir passim

Sherbert v. Verner,

SOOT, SE OPOEED ccbectvcececesseccteces 20

vii

TABLE OF AUTHORITIES

Torcaso v. Watkins,

ee ee a a ok occ de dwecec Bde. 16

United States v. Public Utils. Comm'n..

i 7

Walker v. San Francisco Unified School District,

46 F.3d 1449 (1995),

761 F. Supp. 1463 (N.D. Cal. 1991) .......... 13

Wallace v. Jaffree,

EE ae Se a 5, 7,15

Walz v. Tax Commission,

Se IUD ov oicc cc cck dbcces 18, 20, 23

Wisconsin v. Yoder,

I ee passim

Zobrest v. Catalina Foothills School District,

jp ls) 7) 18, 19, 23, 26

Zorach v Clauson,

ED so Sdccccdeacedeb 15, 20, 27

Constitutional and Statutory Provisions

Adolescent Family Life Act,

eee 25

viii

TABLE OF AUTHORITIES

Education Consolidation and Improvement Act of 1981,

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

Title V, Subtitle D (1981) 26... eee eee eee 2

Elementary and Secondary Education

RARE TEED oo cccccensevesvescecscvevecess< 2

Pub. L. 103-112, 107 Stat. 1082 (1993) .............. 12

Pub. L. 103-333, 108 Stat. 2539 (1994) .............. 12

Pub. L. No. 103-382,

108 Stat. 3518, Title 1 (1994) ............0055. 2

Pub. L. 104-56, 109 Stat. 548 (1995)... .........555. 12

Religious Freedom Restoration Act,

42 U.S.C. § 2000bb ef seg. ... 6... ee eee eee 20

ZO UBL. 6 BIZ < vec ccvevevccsessesccvvegeees 1

PUBL. BSBBR CITED cc ccccvcecss déepawecccsce 2

BUBL. GIGI CIGED) 2. nc cvcacdecdisovcvcecvess 2

20 U.S.C. 6 GIBE KIDDE) 6 ice sce cdtvccsvvcccveteds 2

UB, Comet amend. |b ..ccccccccevescevsqenes dees 16

Legislative History

ix

TABLE OF AUTHORITIES

ee

Other Auth >rities/Miscellancous

1 ANNALS OF CONGRESS 730-31

(Gales & Seaton eds., 1789) ..............

Antieu, Chester J., ef al., Freedom From Federal

Establishment: Formation and Early History

of the First Amendment Religion Clauses

EE ESE SESE EE Ee ee eee

Baer, Richard, The Supreme Court's

Discriminatory Use of the Term “Sectarian,”

6 J. Law & Politics 449 (1990) .............

Chopko, Mark E., /ntentional Values and the

Public Interest - A Plea For Consistency

in Church/State Relations, 39 DePaul

Bo I er eee

Chopko, Mark E., Religious Access to Public

Programs and Governmental Funding,

60 Geo. Wash. L. Rev. 645 (1992) ..........

Elliot, J., DEBATES OF THE FEDERAL CONSTITUTION

Sire x) bb ewadd od csc coeverc.

General Accounting Office, Aguilar v. Felton

Decision’s Continuing Impact of Chapter |

Program (GAO/HRD-89-131BR, 1989) .....

Glendon, Mary Ann & Yanes, Raul,

Structural Free Exercise,

90 Mich. L. Rev. 477 (1991) ............45. 5,8

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

to Private Religious School Studenis

(U.S. Dept. of Education, 1993) ............. 12

McConnell, Michael W., Religious Freedom at

a Crossroads, 59 U. Chi. L. Rev. 115 (1992) ....5

Nomination of David H. Souter to be Associate Justice

of the Supreme Court of the United States:

Hearings Before The Senate Comm. on the

Judiciary, 101st Cong., 2nd Sess 156 (1990) ..... 6

Paulsen, Michael Stokes, Lemon is Dead,

43 Case. W. Res. L. Rev. 795 (1993) .......... 5

PROCEEDINGS, EARL WARREN CONFERENCE ON

ADVOCACY, CHURCH, STATE

DFE ho de Ree ides deucecds 14

Russo, A., Haslam , M., The Uses of

Computer Assisted Instruction in Chapter |

Programs Serving Sectarian Private School

Students, (U.S. Dept. of Education, 1992) ...... 10

Stokes, A., CHURCH AND STATE IN THE

J eee ee ee 16

re

xi

TABLE OF AUTHORITIES

U.S. Department of Education, Statement

of the Independent Review Panel

of the National Assessment of

I ce ce toe, ot oot.

The Writings of Thomas Jefferson

(Washington ed., 1861) ....................

"een? coed te eed A.

: «fa ney kya aft y

2 ins ig ee a 3S.

60. | ho

RACHEL AGOSTINI, ET AL.,

Petitioners,

Vv.

BETTY-LOUISE FELTON, ET AL.,

Respondents.

CHANCELLOR OF THE BOARD OF EDUCATION, ET AL.,

Petitioners,

v.

BETTY-LOUISE FELTON, ET AL.,

Respondents.

BRIEF AMICUS CURIAE OF THE

UNITED STATES CATHOLIC CONFERENCE

IN SUPPORT OF PETITIONERS

INTEREST OF AMICUS

The United States Catholic Conference (“USCC”) is a

nonprofit corporation, the members of which are the active Catholic

Bishops in the United States. USCC advocates and promotes the

pastoral teaching of the U.S. Catholic Bishops in such diverse areas

of the nation’s life as the free expression of ideas, fair employment

and equal opportunity, the rights of parents and children, the sanctity

of life, and the importance of religious communities. Values of

particular importance to the Conference are the protection of the first

amendment rights of religious organizations and their adherents, and

the proper development of this Court’s jurisprudence in that regard.

This case offers this Court an opportunity to speak on several

important issues. First, the case allows for a serious reexamination

of the Court’s Establishment Clause jurisprudence which, both in

substance and in process, has failed to serve the history and purpose

of the first amendment. That jurisprudence can better serve the

genuine goals of both religion clauses, and begin to implement them

2

more consistently. Second, and more importantly, this Court can

meaningfully advance the welfare of special needs children by

endorsing appropriate and religiously neutral ways to advance their

education consistent with their parents’ religious and cultural values.

Through their counsel, the parties have consented to the

appearance of this amicus.

SUMMARY OF ARGUMENT

For the nineteen years prior to 1985, pursuant to Title | of the

Elementary and Secondary Education Act and its successive

amendments,’ the New York City Board of Education provided

remedial education to economically and educationally deprived

children in both public and private schools, including religiously-

affiliated schools. This remedial instruction was provided on

premises, in both public and private schools. By all reckoning, that

program was a success, serving to further the educational

development of those children most in need.

The Court’s decision in Aguilar v. Felton, 473 U.S. 402

(1985), dramatically altered that program. In perhaps the strictest

application of “separation” principles, a bare majority in Aguilar

decided that these remedial education programs could not

constitutionally survive on the premises of religious schools in spite

On July 1, 1982, the Elementary and Secondary

Education Act (“ESEA”) of 1965 was amended and superseded by

the Education Consolidation and Improvement Act (“ECIA”) of

1981. Pub. L. No. 97-35, 95 Stat. 463, Title V, Subtitle D (1981).

20 U.S.C. § 3801 (1982). Chapter | of the ECIA incorporated by

reference most provisions of Title | of the ESEA which were the

subject of this lawsuit when filed in 1978 and includes identical

provisions governing participation of private school students. See

20 U.S.C. § 3803 (1982). On October 20, 1994 Congress again

amended ESEA, resulting in the redesignation of the program as

“Title 1.” Pub. L. No. 103-382, 108 Stat. 3518, Title 1 (1994). 20

U.S.C. § 6301 (1994). We will refer to the program throughout as

“Title 1.”

3

of the fact that not a single instance, in 19 years, of improper attempts

to inculcate religious beliefs at public expense, was ever

demonstrated. Aguilar, 473 U.S. at 424 (O’Connor, J., dissenting).

Following Aguilar, school authorities were forced to pursue

alternative venues and techniques to provide those services to

children who needed and were entitled to them, and who attended

parochial schools. These techniques themselves have come under

attack as being constitutionally deficient, by groups and individuals

opposed to the provision of special education services in any but a

public school setting. See, e.g., Committee for Public Education and

Religious Liberty v. Secretary, U.S. Dept. of Education, 942 F Supp.

842 (E.D.N.Y. 1996). At the same time, the development of this

Court’s Religion Clauses jurisprudence has grown away from

Aguilar, and has made its deficiencies, with its singular reliance on

Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971), all the more clear.

This Court should embark in a new direction, abandoning the flawed

decision in Aguilar and the aptly-labeled Lemon test. This Court

should do so in a way that sets out new parameters the Court can use

to frame a more appropriate test, rooted in history and experience but

capable of application to a range of contemporary problems.

First, such a test must provide for absolute impartiality of

treatment for religion, and among religions. In order to do so, two

interests must both be served, rather than spuriously seeming to be

weighed against each other. Personal religious liberty must at all

times be protected from encroachment by the state, and the

institutional autonomy of both governmental and religious institutions

must not be impinged upon. Neither must be permitted to intrude

into the institutional prerogatives of the other.

Second, these interests should be protected by demanding

that the challenger of the action in question, as in all other civil

litigation, bear the burden of demonstrating that a claimed violation

of the Establishment Clause has in fact occurred. In Aguilar, the

burden was essentially placed on those defending the program to

prove that public employees could never convey a religious message

in delivering Title I services, without constant surveillance arising out

of the state’s efforts to supervise its own employees who were

providing these services. Aguilar, 473 U.S. at 413. That supervision,

4

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

entanglement test.

The state’s affirmative obligation to accommodate religion,

not take a position hostile to religious belief itself, must be clearly

recognized. By using these standards as a benchmark, then, the

Establishment Clause can here be understood in a coherent way.

Applying these standards here will not only result in the reversal of

Aguilar but set a course for future jurisprudence that allows for the

vindication of the authentic goals of both Religion Clauses.

ARGUMENT

I. Aguilar v. Felton Has Institutionalized Significant

Jurisprudential and Educational Deficiencies.

This Court has a chance to undo a decision that has been as

damaging in its implications for religious/state relationships in this

country, as it has been damaging to the educational interests of the

economically needy and educationally disadvantaged students whose

parents have chosen to send them to religiously affiliated schools. In

Aguilar, this Court decided that the Establishment Clause prohibited

the provision of Title | remedial educational services to children

entitled to receive these services, on the premises of their own

schools, if those schools happened to be religiously affiliated. In

large part it did so because it concluded that a violation of the

“entanglement prong” of the Lemon test would “inevitably result”

from the public school board’s monitoring of its own teachers, who

were providing services on the premises of parochial schools.

Aguilar, 473 U.S. at 409. In the intervening years, both the

jurisprudential and educational! goals of the country have suffered.

Here, the Court can -- and we submit, must -- make things right.

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

Suspect Interpretation of Constitutional Text and

Principle.

It is clear from this Court’s decision in Aguilar that that

decision depends, first and last, on the authority of the tripartite test

5

announced in Lemon v. Kurtzman. Application of the three-part

Lemon test resulted in the Court's decision that the state’s own

supervision of its own publicly-employed special education teachers

conducting remedial education in religious schools constituted

“excessive entanglement” of church and state. Aguilar, 473 U.S. at

409. Lemon does not do legitimate service to the constitutional text.

It skews the analysis against beneficial and constitutional cooperation

between government and religion, as measured by history and

experience. Aguilar should be overturned because it depends on

Lemon, and the test enunciated in Lemon should be reconsidered and

reformulated along the lines suggested here. The factual

circumstances of Aguilar presented no threat at al! of establishment

or preference of any particular religion. Rather, the Aguilar decision

demonstrates affirmative “hostility toward religion and the children

who attend church-sponsored schools.” Aguilar, 473 U.S. at 420

(Burger, C.J., dissenting).

Lemon itself has long been subject to criticism as excessive

and unsupportable.*Many members of this Court have joined in this

criticism. From the time Lemon was decided, in fact, members of the

Court have criticized the test as not being a particularly useful or

principled way of deciding cases. Lemon, 403 U.S. at 668 (White, J..

concurring in part, dissenting in part). In Wallace v. Jaffree, 472 U.S.

38 (1985), Chief Justice Rehnquist wrote that “[these] difficulties

arise because the Lemon test has no more grounding in the history of

the First Amendment than does the [“}wall[”] theory upon which it

standards for deciding Establishment Clause cases, as this Court has

slowly come to realize. Even worse, the Lemon test has caused this

. Lemon has come under broad-ranging criticism in

the academic legal community, and for a variety of reasons. See,

e.g., Michael Stokes Paulsen, Lemon is Dead, 43 Case W. Res. L.

Rev. 795 (1993), Michael W. McConnell, Religious Freedom at a

Crossroads, 59 U. Chi. L. Rev. 115, 127-34 (1992); Mark E.

Chopko, Religious Access to Public Programs and Governmental

Funding, 60 Geo. Wash. L. Rev. 645, 654-60 (1992); Mary Ann

Glendon & Raul Yanes, Structural Free Exercise, 90 Mich. L. Rev.

477, 503, 538 (1991).

6

Court to fracture into unworkable plurality opinions. ...” /d. at 110

(dissenting). Justice Kennedy has indicated that an overall revision

of the Court’s Establishment Clause jurisprudence “may be in order.”

County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S.

573, 656 (1989) (concurring in part and dissenting in part). Justice

O'Connor has pointed out the particular problems which application

of the Lemon test creates, when the issue is what steps the

government can take to accommodate the exercise of religion without

at the same time violating the Establishment Clause. Corporation of

Presiding Bishops of the Church of Jesus Christ of Latter-Day Saints

v. Amos, 483 U.S. 327, 346 (1987) (concurring in judgment), as well

as criticizing the Lemon test as being, in and of itself, excessively

rigid and insensitive to the demands of constitutional litigation.

Board of Education of Kiryas Joel Village School District v. Grumet,

114 S.Ct. 2481, 2500 (1994) (concurring and concurring in

judgment). Justice Scalia has also criticized the Lemon test. See

Edwards v. Aguillard, 482 U.S. 578, 613-19 (1987). Justice Souter

has voiced his concern that the Lemon test, as applied, may be in

direct conflict with the Free Exercise Clause. Nomination of David

H. Souter to be Associate Justice of the Supreme Court of the United

States: Hearings Before The Senate Comm. on the Judiciary, 101 st

Cong., 2d Sess. 156 (1990) (statement of nominee). In his opinion

for the Court in Kiryas Joel, 114 S.Ct. at 2487-2494, Justice Souter

eschewed Lemon in favor of an analysis of the facts and

circumstances of the case.

Lemon has led to results in individual cases, particularly in

the area of education, that are inconsistent and conflicting. Wallace.

472 US. at 110-11 (Rehnquist, J., dissenting). The focus of this

brief, however, is not only on achieving a different result in the

instant case, but also upon the process this Court utilizes in

"scrutinizing challenges brought under the Estab!ishment Clause. That

Clause demands that the Court must have a means to distinguish “real

threat” from “mere shadow.” Marsh v. Chambers, 463 U.S. 783, 795

(1983) (quoting School District of Abington Township v. Schempp,

374 U.S. 203, 308 (1963) (Goldberg, J., concurring)). Those means

must also be rooted in what history and experience teach are the goals

and values of the constitutional text. See Lynch v. Donnelly, 465 U.S.

668, 673-76 (1984). It is a text of enormous complexity requiring

7

care and sensitivity in its application.’ Lemon has utterly failed to

provide that procedural vehicle. It weights the scales of justice

against legitimate and benign cooperation undertaken in the public

interest. In Aguilar, it allowed the invalidation of an important public

program without any evidence of actual harm.

Each prong of the Lemon test is problematic. On its face, the

search for “secular purpose” seems uncontroversial. In many

circumstances the Court simply looks to the goals sought to be

achieved as stated by the legislature. But in religion cases, Lemon

invites judges to do more, searching not just the legislature's motives

but those of individual legislators as well.‘ The second, “primary

effect,” prong, clearly manifests a distrust of religious organizations

to function properly within the confines of a governmental program.

For example, in Lemon the Court concluded that the religious nature

of the institution providing the services, by itself, demonstrated that

the statute had the primary effect of aiding religion. Lemon, 403 U.S.

at 635 (Douglas, J., concurring). The Court reasoned that all

functions of a religious institution, whether a school or a social

service agency, are committed to the inculcation of religious beliefs.

By linking one function of a religious institution with all of its others,

the Court assumed that religious organizations could not keep their

’ Acts of Congress should not be invalidated absent

“clear incompatibility” with the Constitution. Legal Tender Cases,

79 U.S. (12 Wall.) 457, 530-31 (1871).

See, e.g., Wallace, 472 U.S. at 56-58 (hinging its

conclusion on fact that legislature had no secular purpose, based on

the views of the principal sporsors). For the most part, the Court

has deferred to the legislative findings and purposes that are

reflected in the statute. See Pacific Gas and Elec. Co. v. Public

Utils. Comm'n., 475 U.S. | (1986). The basic rule of statutory

construction is to disregard views of individual legislators (even

sponsors) as definitive interpretative guides. See Chrysler Corp. v.

Brown, 441 U.S. 281, 311-12 (1979), see also United States v.

Public Utils. Comm’'n., 345 U.S. 295, 319 (1953) (Jackson, J.,

concurring) (stating that the Court should avoid “psychoanalysis of

Congress”).

various missions and goals separate. /d° That conclusion of

constitutional significance has had disastrous consequences for the

education of our nation’s neediest children.

It has always been recognized that the third facet of the

Lemon test, “excessive entanglement,” is inherently “insolubly

paradoxical.” Roemer v. Maryland Board of Public Works, 426 U.S.

736, 768 (1976) (White, J., concurring in judgment). This “Catch-22”

effectively creates a presumption of invalidity in cases having to do

with governmental aid programs involving religious schools.

Aguilar, 473 U.S. at 420 (Rehnquist, J., dissenting). This

presumption, and the inversion of the usual burdens of proof in the

civil case which was its concomitant in Aguilar, have also been

roundly criticized. See, e.g., Glendon and Yanes, Structural Free

Exercise, 90 Mich. L. Rev. supra at 510-514. This presumption of

invalidity arises from the way the Lemon test was enunciated. The

test stated in Lemon was not limited to the actual issue presented

there, the propriety of direct government supervision of officials of

a religious institution. Lemon, 403 U.S. at 619-20. Rather, Lemon

broadly condemned all “entanglement,” whether merely

administrative, substantive, or even entirely “prophylactic contacts”

having no purpose whatsoever except to ensure that teachers were not

teaching religious beliefs or doctrines when they were to be teaching

government-funded secular material. Lemon, 403 U.S. at 619. By

finding “entanglement” even though the Court agreed that only

potential but not actual hazards had been shown, id at 618, it

virtually conclusively presumed that whenever a government aid

. From time to time, this Court has employed the

rubric “pervasively sectarian” to mean an institution in which

religious proselytism and instruction could not be distinguished

from secular education. That terminology itself shows a marked

hostility towards religion and contributes to the jurisprudential

problem underlying this case. Richard Baer, The Supreme Court's

Discriminatory Use of the Term “Sectarian,” 6 J. Law & Politics

449 (1990). The focus should not be the institution but the

program of cooperation, and how the institutional cooperation

utilizes public funds. Bowen v. Kendrick, 487 U.S. 589, 624

(1988) (Scalia, J., concurring).

’

9

program involving parochial schools was at issue, that program

would violate the Establishment Clause.°

All of these concerns, distilled by Justice O'Connor's

recognition in Aguilar that the Lemon test had indeed condemned

benign cooperation between church and state, Aguilar, 473 U.S. at

421 (O'Connor, J., dissenting), show that new parameters must be

used to evaluate the constitutionality of governmental actions in cases

that raise Religion Clauses issues.

B. Aguilar Has Created Significant and Expensive

Difficulties, Harmful Both to Needy Children and

the Common Good of Our Society.

The Aguilar decision was made in the face of proof in the

District Court that the on-premises program had, in Justice

O’Connor’s words, “over almost two decades . . . . helped thousands

of impoverished parochial school children to overcome educational

disadvantages without once attempting to inculcate religion.”

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

the opinion in Aguilar, Justice Powell conceded that the educational

programs in question there had “done so much good and little, if any,

. Simply abandoning “excessive entanglement” is,

however, not a solution. In Employment Division v. Smith, 494

U.S. 872 (1990), this Court rewrote its Free Exercise Clause

jurisprudence generally but attempted to leave intact its caselaw

immunizing church internal operations, doctrine, and polity from

secular court scrutiny. /d. at 876-78. Some of that caselaw

involves decisions that involvement of a state regulator, for

example, in a particular matter in a religious institution, would

“excessively entangle” the state in the governance of a church.

See, e.g., NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 501-

7 (1979); see also Schmidt v. Bishop, 779 F Supp. 321, 327-9

(S.D.N.Y. 1991). These cases are examples of “free exercise,” not

“establishment,” concerns. But revision of the test, as suggested

here, should avoid creating more harm to the body of law

protective of religious institutions, a principle on which this Court

has always correctly persisted.

10

detectable harm,” echoing the Second Circuit's decision below in

Felton v. Secretary, U.S. Dept. of Education, 739 F.2d 48, 72 (1984).

Aguilar, 473 U.S. at 415. At the same time, the Aguilar decision led

to extraordinary costs on the part of school districts nationwide as

they attempted to comply with the decision and provide these services

in ways not prohibited under Aguilar, as well as to much additional

litigation attempting to fix its boundaries and its meaning.

Aguilar created major logistical and educational problems in

delivering Title | services to private school children, resulting in

fewer children receiving remedial services.’ Following Aguilar,

participation of private school children in the Title | program dropped

precipitously as school districts scrambled to provide alternative

methods to deliver those services. Before Aguilar, states served

185,000 private school students. After Aguilar, the number declined

by 62,000 children.’ In addition, the quality of those services also

became inferior to those provided pre-Aguilar and to those provided

to public school children. Alternative delivery systems have

included mobile vans parked on public streets, portable classrooms

on neutral sites, instruction in public school buildings, and computer-

assisted instruction in private schools with no instructional personnel

present.’ Requiring students to leave their regular schools and travel

U.S. Department of Education, Statement of the

Independent Review Panel of the National Assessment of Chapter

1,57 (1993).

. General Accounting Office, Aguilar v. Felton

Decision 's Continuing Impact on Chapter | Program, 5

(GAO/HRD-89-131BR, 1989).

, A. Russo, M. Haslam, The Uses of Computer

Assisted Instruction in Chapter | Programs Serving Sectarian

Private School Students, \7, 57-58 (U.S. Dept. of Education,

1992). Computer assisted instruction also has its problems. It is

not well integrated with regular school programs, frequently

neglects staff training and support, and is used primarily for drill

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

assisted instruction to students’ intellectual development and

to locations off-site interrupts the educational process, creates safety

concerns, and causes undue hardship on children.

Most importantly, even for those children who continue to

receive services, Aguilar’s continuing detrimental impact is that it

exacerbates the educational deficiencies of the children most in need

of help. Requiring services to be off-premises adds another layer of

disruption to the school day, requiring children to travel to alternative

education sites for their remedial instruction or receive less effective

instructional techniques. This further disadvantages these children

and further derogates the public interest in serving them. It is a

disservice to the public interest to invalidate in-school programs

which promote real educational, economic, and social values, and do

not, except by arrant speculation, in any way establish religion.

Following Aguilar, Congress attempted to ameliorate the

problems that Aguilar created. 20 U.S.C. § 2727(d)."° Between 1988

improved achievement is limited. /d. at 23.

oy The Senate Labor and Human Resources

Committee reported:

To comply with the Supreme Court's decision [in

Aguilar v. Felton\, schools have had to implement

costly, disruptive, and creative procedures to serve

private school children.

The Committee strongly believes that these

eligible children should be served. Service to

eligible private school children has been a

provision in law since its enactment in 1965. The

Committee is very concerned that efforts to

comply with the Supreme Court ruling have

resulted in a decline of about 35 percent in the

number of private school children who are served.

S. Rep. No. 100-222, 100th Cong., Ist Sess. 14, reprinted in, 1988

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

12

and 1993, Congress had appropriated over $180 million to help

defray the cost of capital expenses associated with alternative

delivery methods, such as mobile vans, and the leases of neutral sites

necessitated by Aguilar,'' money that could better have been used to

provide instructional services to both public and private school

students. Instead, the costs for alternative delivery methods decrease

the amount of funds available to provide instructional services for all

students, regardless of where they attend school.

What followed, predictably, was a spate of new litigation

which focused on the use of government-controlled mobile vans

being used for remedial education classrooms, other alternative

teaching methods, and the methods of cost allocation. A Missouri

district court invalidated both the parking of mobile vans on school

property, and the method of accounting for any additional costs to

provide these services. Pulido v. Cavazos, 728 F. Supp. 574 (W.D.

Mo. 1989). The district court came to the conclusion that a van

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

Private Religious School Students, 41 (U.S. Dept. of Education,

1993), (approximately $161 million had been appropriated for

capital expenses for fiscal years 1988-93). Subsequently, Congress

appropriated additional funds for capital expenses: $41.434 million

for fiscal year 1994, Pub. L. 103-112, 107 Stat. 1082, 1101 (1993);

$41. 434 million for fiscal year 1995, Pub. L. 103-333, 108 Stat.

2539, 2562 (1994); and $20 million for fiscal year 1996, Pub. L.

104-56, 109 Stat. 548 (1995). Perhaps appropriately, the extra

costs required to provide remedial education to needy parochial

school students as a result of this Court’s decision in Aguilar have

become known as “Felton costs.” These “Felton costs’ had to be

taken “off-the-top” of a state’s allocation of funds in order to

provide actual services equitably to all needy students. If these

costs were not taken off the top of the allocation of Title | funds,

but instead were assessed against the private school students’ share

of Title | funds, services might have to be discontinued for a year

or more. Many students would be unserved or would simply be

forced to leave their private schools.

13

parked directly in front of a parochial school, just a few steps from

the entrance, but outside the school’s property line, was

constitutional, while a van parked across campus, out of sight of the

school’s entrance, but on land owned by the school, violated the first

amendment. /d. at 587-93. On appeal, the Eighth Circuit upheld both

the use of mobile classrooms, no matter where parked, as well as the

cost allocation method. Pulido, 934 F.2d 912 (8th Cir. 1991). By

contrast, a Kentucky district court upheld the delivery of services in

off-premises mobile vans but invalidated the method of cost

allocation. Barnes v. Cavazos, No. C80-0501-L(A) (W.D. Ky. Feb.

21, 1990). The Sixth Circuit upheld the actual dollar allocation of

costs, based solely on the facts in that case, but did not address the

van placement issue. Barnes, 966 F.2d 1056 (6th Cir. 1992).

In yet another of Aguilar’s progeny, a district court concluded

that property boundaries do have constitutional significance for

placement of mobile vans. Walker v. San Francisco Unified School

District, 761 F. Supp. 1463, 1469-71 (N.D. Cal. 1991). But the

Walker court supported the constitutionality of the method of

financing. /d. at 1472. On appeal, the Ninth Circuit in Walker held

that the provision of Title | services in vans parked on parochial

school premises did not violate the Establishment Clause, and neither

did the monitoring of Title | teachers by their public-employee

supervisors. Walker v. San Francisco Unified School District, 46 F 3d

1449 (1995). In Board of Education v. Alexander, 983 F.2d 743 (7th

Cir. 1992), the Seventh Circuit resolved a similar challenge to the

way in which so-called “Felton” costs were taken off the top of a total

agency allotment under Title |, holding that that did not violate the

Establishment Clause.

Clearly, the continuing litigation of these questions, arising

as it does from Aguilar, has also had an adverse impact upon the

overall Title | program. That, and the adverse educational

consequences of off-premises teaching methods, reinforce the

conclusion that Aguilar must be overturned and the Lemon test

reformed.

14

Il. A New Approach to the Interpretation of the

Establishment Clause Must Be Undertaken Here.

This Court has regularly insisted upon history and experience

as its only reliable guides in the interpretation and application of the

Establishment Clause. Lynch v. Donnelly, 465 U.S. 668, 673-76

(1984). Unfortunately, consideration of the meaning of the Religion

Clauses frequently begins and ends with reference to Thomas

Jefferson’s “wall of separation” between church and state."? “The

concept of a ‘wall’ of separation is a useful figure of speech. . . [bJut

the metaphor itself is not a wholly accurate description of the

practical aspects of the relationship that in fact exists between church

and state.” Lynch, 465 U.S. at 673. It is often forgotten that the

Religion Clauses were themselves political compromises forged by

persons of different cultural, religious and regional experiences. No

one or another view predominated in fact. Even if Jefferson were the

benchmark, Jefferson’s view of religion and the state was one in

which religion played a central role in the order of society. Although

Jefferson opposed the establishment of any religion, he and other

founders believed that the interaction of religion and state brought

about and preserved moral values which were essential to civil

government. Jefferson, like others of his contemporaries, believed

that religion was important in the public and private lives of the

citizens of the state."

The history of the drafting and negotiations that led to the

wording of the Religion Clauses as finally adopted by the First

Congress is detailed in many texts. See Chester J. Antieu, Freedom

From Federal Establishment: Formation and Early History of the

First Amendment Religion Clauses, \87-8 (1964). The process of

extensive compromise that resulted in the Establishment Clause-

= See McCollum v. Board of Education, 333 U.S.

203, 244 n.8 (1948) (Reed, J., dissenting) (quoting 1802 Letter to

Danbury Baptist Churches in 8 The Writings of Thomas Jefferson

113 (Washington ed., 1861)).

e PROCEEDINGS, EARL WARREN CONFERENCE ON

ADVOCACY, CHURCH, STATE AND POLITICS 79 (1981).

15

shows that it had two specific purposes: first, to prevent Congress

from establishing or favoring a national religion; and second, to

prevent Congress from interfering with the stat:s’ policies with

regard to religion.'* The Framers of the Constituticn, however, “had

no fear or jealously of religion itself, nor did they wish to see us an

irreligious people .. .” S. Rep. No. 376, 32d Cong. 2d Sess. 4 (1853)

( appointment and compensation of legislative chaplains); see also

Zorach v. Clauson, 343 U.S. 306, 312 (1952) (“The First

Amendment, however, does not say that in every and all respects

there shall be a separation of Church and State”). There was no

concern expressed during the first congressional debates that the

government might enact a law beneficial to religion or religious

institutions. | ANNALS OF CONGRESS 730-31 (Gales & Seaton eds.

1789).

History indicates that the Establishment Clause was intended

to prohibit the preference of one religion over another; it did not

forbid any assistance, regulation, or other interaction. Clearly the

Framers of the Religion Clauses in the First Congress allowed some

state involvement with religion, including payment for chaplains,

Marsh v. Chambers, 463 U.S. 783, 788 (1983), a Thanksgiving

Holiday, id. at 788, and inclusion of churches in land grants in the

Northwest Territories, Wallace, 472 U.S. at 100 (Rehnquist, J..

dissenting). Benevolence toward religion was not perceived as an

evil. Rather, support and encouragement of religion was perceived

to be in the public good.

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

” | ANNALS OF CONGRESS 730-31 (Gales & Seaton

eds. 1789). At the time of the Constitutional Convention, there

was a wide diversity of views and practices among the states

regarding established religion. See 3 J. Elliot, DEBATES OF THE

FEDERAL CONSTITUTION 330 (2d ed. 1836) (Madison’s discussion

of freedom of religion in Virginia).

7 “Congress shall make no law respecting an

establishment of religion or prohibiting the free exercise

thereof....” U.S. Const. amend. I.

16

subsumed centuries of contention about the appropriate relation

between religion and government. The Religion Clauses reflect the

experience of their Framers that an officially preferred or nationally

established religion generates religious intolerance and infringes upon

persona! liberty. See, e.g, Abington Township, 374 U.S. at 228

(Douglas, }., concurring); Torcaso v. Watkins, 367 U.S. 488, 490

(1961). The Establishment Clause was not meant to drive a wedge

between church and state, but rather to avoid those relationships

between the two which pose a realistic threat of impairing religious

liberty. See Lynch, 465 U.S. at 683.

The Religion Clauses were included in the Bill of Rights:

[Not as protection from religion,

but rather as a protection for

religion. They were inserted in our

Constitution largely because its

framers felt that they were

important to ensure the continuance

and the strengthening of religion

which could not flourish under

American conditions if any State

Church were either provided for or

tolerated.

| A. Stokes, CHURCH AND STATE IN THE UNITED STATES, 556 (1950).

While one of the signal purposes of the Religion Clauses is to protect

personal religious liberty, it is equally plain that one of the political

purposes of the Clauses was to preserve the integrity of religious and

governmental institutions. See Abington Township, 374 U.S. at 222

(government neutrality toward religion prevents powerful sects from

fusing governmental and religious functions, and protects the

freedom of religious observance from state compulsion); Everson v.

Board of Education, 330 U.S. |, 15 (1947) (the federal government

structure protects public and religious organizations from interfering

with each other).

In her concurrence in Lynch v. Donnelly, Justice O’ Connor’ s

analysis of the Establishment Clause identified two evils that could

17

accompany the excessive involvement of religion in government and

government in religion: (1) the loss of political and institutional

autonomy; and (2) the loss of personal religious liberty. 465 U.S. at

687-88. The loss of institutional autonomy was not feared just for the

consequences for personal religious liberty, but “equally feared

because of its tendencies to political tyranny and subversion of civil

authority.” McGowan v. Maryland, 366 U.S. 420, 430 (1961). It is

important, therefore, as one considers the interests served by church

and state each to be independent and autonomous, that together they

share important responsibilities with deep roots in our national

tradition. .

Both components of the Religion Clauses, then, were meant

to work to the same end. Wisconsin v. Yoder, 406 U.S. 205 (1972).

If the Establishment Clause is read to reach results which cannot be

justified in terms of religious liberty, it fails to serve the intended

constitutional purpose. This is certainly the case when it is used to

invalidate governmental accommodation of activities conducted by

religious institutions which serve the public interest and which pose -

no actual threat to religious freedom. Lemon, and of necessity

Aguilar, fail this test. They demand a scrutiny of a public program

without regard to its real purposes and effects, unguided by

constitutional tradition and unrestrained by any consideration of the

common good.

A. A New Interpretational Guide Should Be Rooted

in the History of the Religion Clauses and

Capable of Consistent Application.

The Religion Clauses of the first amendment to the United

States Constitution must be read consistently with the goals outlined

above, as well as coherently in an internal sense. This is because, as

Justice Goldburg put it in Abington Township, the two Religion

Clauses “are to be read together, and in light of the single end which

they are designed to serve. The basic purpose. . . is to promote and

assure the fullest possible scope of religious liberty and tolerance for

all... .” Abington Township, 374 U.S. at 305 (concurring). In order

to do this, the Religion Clauses must be read with a view toward the

goals that the first amendment was intended to achieve. By use of

this framework, first amendment jurisprudence can develop free from

the spurious linguistic categories of “original” versus “contemporary”

construction, as wel! as placing the Court’s prior First Amendment

cases in a useful context that reads the Free Exercise Clause and the

Establishment Clause together.'*

In Lemon, this Court attempted that goal by reading together

the various strands of its jurisprudence. Lemon, 403 U.S. at 611-623.

However, the test chosen was not adequate for it lacked roots in

constitutional, as opposed to jurisprudential, precedent and, as

indicated above, weighted the scales of justice against cooperation in

the public interest. This Court has often said that the Constitution

forbids “sponsorship, financial support, and the active involvement

of the sovereign in religious activity,” Walz v. Tax Commission. 397

US. 664, 668 (1970), but has not been able to provide a means for

drawing these fine distinctions. Dissatisfied with Lemon, members

of this Court have struggled with whether Lemon, or a different test

or tests, shall apply.'’ The result has been a lack of coherence in

” Mark E. Chopko, /ntentional Values and the

Public Interest - A Plea for Consistency in Church/State Relations.

39 DePaul L. Rev. 1143, 1163 (1990). In this way, the approach

attempts to link this Court’s insistence that history be its guide

with the reality that contemporary society, incorporation under the

Fourteenth Amendment, and new problems require flexibility.

Rigid and narrow use of text and history limits the usefulness of a

test that is blind towards these realities. Ignorance of history

means that a test lacks roots in the very text it purports to interpret.

“Intentional values” is a way to bridge these two concerns.

ae Compare Lamb's Chapel v. Center Moriches

Union Free School District, 143 $.Ct. 2141, 2148 & n.7 (1993),

with Zobrest v. Catalina Foothills School District, 113 S.Ct. 2462.

2464-69 (1993) (resolution of claim in Lamb's Chapel relies on

Lemon, seven days later, Zobrest decided without it). See also

Lynch v. Donnelly, 465 U.S. at 688 (O’Connor, J. concurring)

(endorsement test); County of Allegheny v. ACLU, 492 US. at 655,

660-61 (Kemmedy, J.) (coercion test); Capiial Square v. Pinetie,

115 S.Ct. 2440, 2452 (1995) (O'Connor, J.. concurring) (different

19

process even while there has been a substantial shift favoring

programs that are neutral towards religion.

2467. Three years later, in Rosenberger v. Rector of the University

of Virginia, 115 $.Ct. 2510, 2521 (1996), the Court pointed to what

it termed a “central lesson” of its Establishment Clause decisions.

“that a significant factor in upholding governmental programs in the

face of Establishment Clause attack is their neutrality towards

religion.” That principle of neutrality, the Court said, would be

authentic intentions of the First Amendment. A reliable test would

not need to rely exclusively on facial neutrality but could be applied

in more diverse contexts. The “neutrality” approach is but one piece

of a more complex puzzie. “Neutrality” tests the level of

involvement between religion and government, but the set of facts

and circumstances to be evaluated in the range of cases presented is

tests for various purposes).

20

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

As a concomitant to the obligation of government not to

obligation to ensure personal religious freedom, government also

bears an affirmative obligation to accommodate religion and religious

practice. This is true, first and foremost, because the Free Exercise

Clause affirmatively commits the government itself to religious

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

S.Ct. 2217, 2234 (1993). This translates into a requirement of

“benevolent neutrality,” Walz, 397 U.S. at 669 (emphasis added), not

a requirement to ignore religious needs, Roemer, 426 U.S. at 736;

Hunt v. McNair, 413 U.S. 734 (1973). In Kiryas Joel, Justice Souter

noted that “government may (and sometime must) accommodate

religious practices and . . . may do so without violating the

Establishment Clause.” Kiryas Joel, 114 S.Ct. at 2492, quoting

Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U.S. 136,

144-45 (1987). The Establishment Clause simply does not require

the automatic invalidation of every cooperative effort between

religious and governmental entities. Abington Township, 374 U.S. at

294-96 (Brennan, J., concurring).

This is consistent with Congress’ decision to enact the

Religious Freedom Restoration Act, 42 U.S.C. § 2000bb ef seg., and

with the rationales of Sherbert v. Verner, 374 U.S. 398 (1963), and

Wisconsin v. Yoder, 406 U.S. 205 (1972). These manifest an

underlying recognition of an obligation on the part of our government

to accommodate its own practices and requirements to the religious

needs of citizens. This is because accommodation of government to

religious interests is important to a free society. Zorach, 343 U.S. at

313-14; see Walz, 397 U.S. at 689 (Brennan, J., concurring). Any

Religion Clauses test that does not respect the need for governmental!

accommodation of religious beliefs and practices flies in the face of

the Framers’ intent, as well as the exigencies of a complex

contemporary society.

A new approach to the interpretation of the Establishment

Clause must evaluate two intentional goals. First, personal religious

liberty must be affirmatively protected and furthered by the state. So,

the state cannot sponsor one particular religious activity, or support

one to the detriment of others, or oppose any or all. Secondly and

simultaneously, the institutional autonomy o; both governmental and

religious institutions must be protected. The burden to demonstrate

whether these goals have been impaired rests on the one challenging

the constitutionality of the program. These values underlie the

concerns expressed both in the generative debates and conditions that

led to the First Amendment, and the opinions of this Court struggling

to apply those provisions.

The right to engage freely in religious activity and conduct is

sO important that any law “restrictive of religious practice, in this

society, must advance interests of the highest order.” Church of

Lukumi, 113 S.Ct. at 2237 (internal quotation marks omitted)

(quoting Yoder, 406 U.S. at 215). A state instrumentality cannot

“require[] religious exercise,” Lee v. Weisman, 505 U.S. 577, 594,

604 (1992). It also may not actually engage in it. Abington

Township, 374 U.S. at 305 (Goldberg, J., concurring). Public schools

are prohibited from “conveying or attempting to convey a message

that religion or any particular religious belief is favored or preferred.”

County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S.

at 593 (emphasis in original). These all reflect different facets of the

same idea - that personal religious freedom must be protected. They

must be protected against the state’s imposition of religion, coercion

to participate in religious activities, state action to prefer or favor a

religion, or, on the other hand, state action that would tend to impede

or damage the exercise of religious beliefs, even when the state also

has legitimate interests to be protected. See, e.g. Yoder, 406 US. at

214; Pierce v. Society of Sisters, 268 U.S. 510 (1925).

22

Personal religious freedom is not merely something tolerated

because the government has no interest in it. To the contrary, this

Court has held that the “Free Exercise Clause commits government

itself to religious tolerance, and upon even slight suspicion that

proposals for state intervention stem from animosity to religion or

distrust of its practices, all officials must pause to remember their

own high duty to the Constitution and to the rights it secures.”

Church of Lukumi, \\3 S.Ct. at 2234 (emphasis added). After all, it

gave concern to those who drafted the Free Exercise Clause.” Bowen

v. Roy, 476 U.S. 693, 703 (1986). Our Constitution itself

affirmatively commits government to permit and protect religious

practice and religious tolerance, and provides a high degree of

protection for those practices.

At the same time, another of the purposes of the First

Amendment was to protect the institutional autonomy of both civil

and religious institutions. See, e.g., Abington Township, 374 U.S. at

222 (government neutrality toward religion prevents powerful sects

from bringing about a fusion of governmental and religious functions,

and also guarantees religious observance free of any compulsion from

the state). In Everson v. Board of Education, 330 U.S. at 15, the

Court quoted with approval a statement about the “interrelation of

these complementary clauses” from the Court of Appeal of South

Carolina rendered in | 843: “[t}he structure of our government has, for

the preservation of civil liberty, rescued the temporal institutions

from religious interference. On the other hand, it has secured

religious liberty from the invasion of the civil authority.” Harmon v.

Dreher, \7 S.C. Eq. (Speers Eq.) 87, 120 (1843).

In Lynch v. Donnelly, Justice O’ Connor identified the loss of

political and institutional autonomy and the loss of personal religious

liberty as the consequences of a regime where religion and —

government did not maintain their rightful roles and relations. 465

U.S. at 687-88. The loss of institutional autonomy was not feared by

the Framers simply because of its consequences for personal religious

liberty, but was “equally feared because of its tendencies to political

tyranny and subversion of civil authority.” McGowan, 366 U.S. at

430. For this reason, it has long been held that one of the principal

23

objectives of the Religion Clauses is to prevent, as far as possible, the

intrusion of both religious and political institutions into each other’s

essential functions. '*

This basic proposition operates in both conceptual directions.

First, religion may not intrude into or take over the proper functions

of government. Kiryas Joel, 114 S.Ct. at 2484 (state statute is

“tantamount to an allocation of political power on a religious criterion

and neither presupposes nor requires government impartiality toward

religion . . [and so] . . . violates the prohibition against

establishment”); Larkin v. Grendel's Den. Inc. 459 US. 116 (1982)

(state statute gave religious groups a veto power over liquor license

applications). By the same token, government and its agents cannot

may not be violated. Zobrest v. Catalina Foothills School District,

supra.

balanced and protected, is a recurring theme in the Court’s Religion

Clauses cases. See, Wisconsin v. Yoder. supra, Abington Township

= This condition, we submit, is a joining of free

exercise and establishment clause concerns that cannot be

remedied simply by jettisoning “excessive entanglement.” Supra,

note 6.

24

v. Schempp, supra, Everson v. Board of Education, supra. These

themes are rooted in the history of the constitutional text and are

applicable, as framed here, to a diverse array of problems. Lemon

pays lip service to these concerns but its tripartite test of purpose,

effect and entanglement has not proved capable of making the fine

distinctions that complex constitutional litigation requires.

It is equally clear, however, that tinkering with the Lemon test

itself will not solve the jurisprudential problem unless the Court also

makes clear that the burden of proof must remain on the challenger

of government aid programs, to demonstrate that the Establishment

Clause has been violated. See Legal Tender Cases, 79 U.S. (12

Wall.) 457 (1871). In Aguilar, the Court viewed the burden as being

on the schools and school board involved, to demonstrate that no

publicly employed teacher could possibly ever convey a religious

message in the course of providing Title | services. Indeed, in the

absence of proof that this was impossible, the Court seemed to

assume that it would occur, and so found that the remedial education

program at issue there violated the Establishment Clause. Aguilar,

473 U.S. at 413-414. Justice Powell, concurring, found an

Establishment Clause violation inherent in the mere “risk of

government entanglement” in the program’s administration. /d. at

415 (Powell, J., concurring). It has been said in other cases that a

“state must be certain, given the Religion Clauses, that subsidized

teachers do not inculcate religion.” Meek v. Pittenger, 42\ U.S. 349,

371 (1975) (emphasis added).

The failing of this attitude toward burdens of proof was

sharply demonstrated by Justice O’Connor in her Aguilar dissent,

noting pointedly the utter lack of evidence in the record of even a

single instance of any problem. Aguilar, 473 U.S. at 424. justice

Scalia delivered an extensive criticism of this requirement for “up-

front assurances” in his opinion in Kiryas Joel, 114 S.Ct. at 2513, et

seq. (concurring). Public supervision alone, particularly of other

public employees, should not automatically be assumed to create an

Establishment Clause violation. The question should be what the

evidence actually demonstrates, if anything, regarding attempts to

teach religion in government programs.

25

This is so, first, because there is no principled reason that the

burdens of proof in a Religion Clauses case should vary from those

in any other civil litigation context. Second, it appears that when the

Court has given consideration to this burdens-of-proof question, it

recognizes this very problem. For example, in Bowen v. Kendrick,

487 U.S. at 622, rather than concluding or assuming that the

Adolescent Family Life Act (“AFLA”), 42 U.S.C. § 300z et seq., had

the impermissible primary effect of establishing religion, the Court

remanded the matter to the trial court to make a factual record and

decide whether “particular AFLA grants have had” that effect. The

need for “detailed factual findings” was emphasized by Justice

O’Connor in her Bowen concurrence. /d. at 623. The need to resist

the sort of assumptions upon which the 1985 Aguilar opinion rests

was also emphasized by Justices Kennedy and Scalia, concurring in

Bowen, 487 U.S. at 624, and in Justice Scalia’s concurrence in Kiryas

Joel, 114 §.Ct. at 2513, et seg. Until the Court makes clear that the

burdens of proof rest on the challenger of the governmental program

in question, as it should, Lemon's failings will continue to bedevil the

development of Religion Clauses jurisprudence.

Ill. Aguilar Must be Overturned.

This Court should insist that a challenger must demonstrate

whether a substantial threat (either to personal religious freedom, or

of interference by one institution with another) is presented in the

case. If that threat were demonstrated to be both real and serious,

then a violation of the Religion Clauses would be shown. The

concern with actual and substantial threats, based on the facts, should

be uncontroversial as that standard applies in every other context.

Under the circumstances presented in this particular case, the

analytical process suggested here leads to the conclusion that a public

remedial program may constitutionally be provided in religious

schools as was done before the 1985 Aguilar decision. That program

does not demonstrably threaten religious freedom and institutional

autonomy.

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

26

evidence of harm." On the other hand, the social and financial costs

and losses attendant upon Aguilar, outlined above, were set forth at

the time in Justice Rehnquist's, O’Connor’s and Burger’s dissents in

that case, Aguilar, 473 U.S. at 419-431. They need not be repeated

here. Suffice it to say that the application of any arbitrary test that

sacrifices “the long-range interests of the country,” in Justice White's

words, is profoundly unwise and should not be deemed required by

our First Amendment. Committee for Public Education v. Nyquist,

413 U.S. 756, 820 (1973) (White, J., dissenting). Application of these

concepts to the present case provides an inescapable affirmative

answer to the question whether Aguilar should be overturned.

First, the provision of on-premises special education to

students at all parochial schools, taught by the same teachers, with the

same material, to reach the same goals, as used in public schools, is

genuinely neutral as regards religion. No religious practice or

concept is furthered thereby. As Justice O’Connor trenchantly

observed in her opinion in Kiryas Joel, 114 S.Ct. at 2498 (emphasis

in original):

The Religion Clauses prohibit the

government from favoring religion,

but they provide no warrant for

discriminating against religion. All

handicapped children are entitled by

law to government-funded special

education. . . . If the government

- “(A]bstract theories explaining why on-premises

instruction might possibly advance religion dissolve in the face of

experience in New York City.” Aguilar, 473 U.S. at 424

(O’Connor, J., dissenting). In the same case Chief Justice

Rehnquist criticized reliance on “gossamer abstractions” to

overturn a useful, neutral program. Jd. at 421. Such real threats

are not to be found in cases of “attenuated financial benefit,” or

where violations of the Establishment Clause are found by exalting

“form over substance,” as the Court said in Zobresi, |13 S.Ct. at

2469. Where no real and substantial threat is demonstrated, no

Religion Clauses violation is shown.

27

provides this education on-site at

public schools and at nonsectarian

private schools, it is only fair that it

provide it on-site at sectarian

schools as well.

Second, because religion-neutral material is being taught,

there simply is no real threat that either religious institutions or

governmental! institutions could intrude into the proper areas of

activity of the other. Indeed, the fact that publicly-employed

supervisors would be supervising the activities of publicly-employed

special education teachers, on premises, demonstrates the

independence of these two individual spheres. Clearly, on-premises

special education presents no conceivable governmental! threat to

personal religious freedom. After !9 years of on-premises services,

the lack of a single actual instance of any violation of Establishment

Clause principles, as was recognized even in concurring opinions,

Aguilar, 473 U.S. at 415, 421-31 (Powell, J., concurring; O’Connor,

J., dissenting), shows that the risk in this case is chimerical at best.

Finally, the obligation of government to accommodate

religious beliefs and practices should also weigh heavily in favor of

overturning Aguilar. As noted above, this Court has repeatedly

recognized this affirmative obligation. Since at ieast the 1920s, this

Court has recognized that the right of parents to direct the education

of their children is constitutionally protected. Meyer v. Nebraska,

262 U.S. 90 (1923); Pierce v. Society of Sisters, supra. And it is “‘the

best of our traditions’ to ‘accommodate{] the public service to the[]

spiritual needs [of our people]."” Zorach, 343 U.S. at 314. As this

Court has noted, protection of religious freedom predates “genera!

acknowledgement of the need for universal formal education .. . .

The values underlying [the Religion Clauses] have been zealously

protected, sometimes at the expense of other interests of admittedly

high social importance.” Yoder, 406 U.S. at 214. It follows that even

if the provision of on-premises special education in New York

parochial schools could be viewed to benefit those children, Catholic,

Jewish, Protestant and others alike, by permitting them to be helped

in their own schools as public school students now are, that

accommodation is entirely reasonable. In fact, it is required if the

28

parental rights noted above are to be respected in a neutral fashion,

without impinging upon their childrens’ rights to the services

provided by Title 1.

CONCLUSION

As Justice Scalia (joined by Chief Justice Rehnquist and

Justice Thomas) noted in Kiryas Joel, the 1985 opinion in Aguilar

was in fact affirmatively “hostile to our national tradition of

accommodation . . . [and] should be overruled at the earliest

opportunity.” Kiryas Joel, 114 S.Ct. at 2515. This is precisely that

opportunity. Aguilar must be overturned in a way which genuinely

reforms this Court’s analytical methods.

Respectfully submitted,

MARK E. CHOPKO*

General Counsel

JOHN A. LIEK WEG

Associate General Counsel

- JEFFREY HUNTER MOON

SOLICITOR

UNITED STATES

CATHOLIC CONFERENCE

3211 Fourth Street, N.E.

Washington, D.C. 20017

(202) 541-3300

February 28, 1997 * Counsel of Record