Amicus Curiae Brief — Mitchell v. Helms

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IN THE

Supreme Court of the United States

GUY MITCHELL, et al., Petitioners

MARY L. HELMS, et ail., Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

BRIEF AMICUS CURIAE OF THE AMERICAN

CENTER FOR LAW AND JUSTICE IN SUPPORT

OF PETITIONERS GUY MITCHELL, ET AL.

JAY ALAN SEKULOW WALTER W. WEBER

Counsel of Record COLBY M. MAY

THE AMERICAN CENTER

JOHN P. TUSKEY FOR LAW AND JUSTICE

SHANNON DEMOS WOODRUFF 1000 Thomas Jefferson St. NW

SHAWN A. VOYLES Suite 609

THE AMERICAN CENTER Washington, DC 20007

FOR LAW AND JUSTICE (202) 337-2273

1000 Regent University Drive

Virginia Beach, Virginia 23464 § VINCENT P. MCCARTHY

(757) 226-2489 THE AMERICAN CENTER

FOR LAW AND JUSTICE

8 South Main

New Milford, Connecticut 06776

(860) 355-1902

Attorneys for Amicus Curiae

I. THE ESTABLISHMENT CLAUSE

ANALYSIS MANDATED BY THIS COURT

IN AGOSTINI v. FELTON GOVERNS THIS

el eRe re 8 BN Oe eee 5

B. The Fifth Circuit Panel’s Decision

Demonstrates the Confusion Caused by

RO eee ye 9

. CHAPTER 2 AND ITS LOUISIANA

COUNTERPART SATISFY THE THREE-

PART CRITERIA ARTICULATED IN

AGOSTINI, TO HOLD OTHERWISE WOULD

ENGENDER HOSTILITY TOWARD

CE Festa oe phe sun svacvetseabakers 11

A. Chapter 2 Does Not Result in ii

Government Indoctrination of Religion

Because it is a Neutral Progrom, TABLE OF AUTHORITIES

Offering Supplemental, Secuiar

Materials, Generally Available to Both | CASES: Page(s)

Public and Nonpublic Schools. ............ 12

Agostini v. Felton, 521 U.S. 203 (1997) .......... passim

B. Chapter 2 Does Not Define its

Recipients by Reference to Religion Aguilar v. Felton, 473 U.S. 402 (1985) ................ 8

Because the Program is Available on

the Basis of Secular, Neutral Criteria Board of Airport Comm'rs v. Jews for

that Neither Favor nor Disfavor Jesus, 482 U.S. 569 (1987) ............ 0. cee eee. 2

Religion, and is Available to Both |

Public and Nonpublic Schools on a | Board of Educ. of Westside Community

Nondiscriminatory Basis.................. 14 Sch. v. Mergens, 496 U.S. 224 (1990) .......... 2,6,7

C. Chapter 2 and its Louisiana Counterpart Bray v. Alexandria Women’s Health Clinic,

Do Not Create an Excessive | RL Bs Se Oe eae ees 2

PP i rere 16 )

| Grand Rapids Sch. Dist. v. Ball, 473 U.S. 373 (1985) ....8

CONCT ARIUS oncscccecsgtcnces o¥enbEneEeTEEeS 17

Helms v. Picard, 151 F.3d 347 (5® Cir. 1998) ......... 3,9

| Lamb's Chapel v. Center Moriches Union Free Sch.

| PEED ob bb eb cc ecbscccoccceces 2

Lemon v. Kurtzman, 403 U.S. 602 (1970) ........... 8,15

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

Mueller v. Allen, 463 U.S. 388 (1983) ................ 15

Rosenberger v. Rector and Visitors of the

Univ. of Va., 515 U.S. 819 (1995) ............... 6,7

Schenck v. Pro-Choice Network of

Western N.Y., 519 U.S. 357 (1997) ................ 2

United States v. Kokinda, 497 U.S. 720 (1990) .......... 2

Walker v. San Francisco Unified Sch. Dist.,

em 8 od PE er Seen es 15

Widmar v. Vincent, 454 U.S. 263 (1981) ............... 6

Witters v. Washington Dept. of Servs. for

the Blind, 474 U.S. 481 (1986) ............... 12,14

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

Zobrest v. Catalina Foothills Sch. Dist.,

Fee Cis BED Sid dd tevenbictciacniwet hes 12, 13

STATUTES AND OTHER AUTHORITIES:

20 UBL. 06 TN-TITD. ... ooo encccecses 3, 12, 13, 14

ise Re eo a oo a ,

La. Rev. Stat. Ann. §§ 17:351-52 .............-.0.00- 3

Webster's II New College Dictionary 565 (1995) ....... 12

No. 98-1648

IN THE

Supreme Court of the United States

GUY MITCHELL, et al., Petitioners

MARY L. HELMS, et al., Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

BRIEF AMICUS CURIAE OF THE AMERICAN

CENTER FOR LAW AND JUSTICE IN SUPPORT

OF PETITIONERS GUY MITCHELL, ET AL.

INTEREST OF AMICUS’

The American Center for Law and Justice ("ACLJ") is an

international, non-profit legal organization whose purpose is to

anontl liticati levislati ; ont nied

activities. ACLJ attorneys have participated in cases involving

* Counsel of record for the parties in this case have consented to the

filing of this brief. Pursuant to Rule 37.6, amicus ACLJ discloses that no

counsel for any party in this case authored in whole or in part this brief and

that no monetary contribution to the preparation of this brief was received

from any person or entity other than amicus curiae.

the Establishment and Free Exercise Clauses of the First

Amendment to the United States Constitution in federal courts

throughout the country. The ACLJ represents the interests of

its thousands of donors across the country.

Specifically, the ACLJ’s Chief Counsel, Jay Alan Sekulow,

has served as lead counsel and presented oral arguments before

this Court in the following cases: Schenck v. Pro-Choice

Network of Western New York, 519 U.S. 855 (1997); Lamb's

Chapel v. Center Moriches Union Free School District, 508

U.S. 384 (1993); Bray v. Alexandria Women's Health Clinic,

506 U.S. 263 (1993); Board of Education of Westside

Community Schools v. Mergens, 496 U.S. 224 (1990); United

States v. Kokinda, 497 U.S. 720 (1990); and Board of Airport

Commissioners v. Jews for Jesus, 482 U.S. 569 (1987).

Consequently, the ACLJ possesses expertise relating to the

Establishment Clause of the First Amendment to the United

States Constitution. As Amicus Curiae, the ACLJ’s expertise

in Establishment Clause cases would assist this Court in

analyzing the relevant case law regarding this important

decision. The ACLI files this brief in support of the Petitioners

and urges this Court to reverse the lower Court’s holding to

make clear that neutral distribution of educational equipment

to public and private students does not violate the First

Amendment.

SUMMARY OF ARGUMENT

In evaluating the constitutionality of Chapter 2, 20 U.S.C.

§§ 7301-7373 and its Louisiana counterpart, La. Rev. Stat.

Ann. §§ 17:351-52 as applied to Jefferson Parish, the Fifth

Circuit in this case relied exclusively upon Meek v. Pittenger,

421 U.S. 349 (1975), and Wolman vy. Walter, 433 U.S. 229

(1977). Considering itself bound by the holdings of those

cases, the Fifth Circuit conclusively and categorically

prohibited loans of instructional equipment and materials,

including library books and transparencies, to religious school

students, while upholding the loan of textbooks. Helms v.

Picard, 151 F.3d 347 (S® Cir. 1998). The Fifth Circuit

determined whether the aid was constitutional based solely on

the character of the aid itself. Jd at 372. This led the court to

conclude that the First Amendment allows the state to loan

textbooks, but not library books, to religious schools.

Even if the Fifth Circuit was obliged to follow Meek and

Wolman, this Court should reject the Fifth Circuit’s conclusion

textbooks and transparencies. This Court’s Establishment

Clause jurisprudence regarding government aid to religious

schools has developed significantly since Meek and Wolman.

This Court has clarified that the permissibility of aid to

religious school students does not depend solely on the

character of the aid. Rather, the underlying principle of

government neutrality toward religion governs this Court’s

Establishment Clause analysis. The Court properly has

recognized that while government may not be able to favor

religious institutions, the First Amendment does not allow

government to be hostile to religious institutions.

Based on the criteria this Court now considers to evaluate

whether government aid has the effect of advancing religion,

the loan of educational materials in this case is perfectly proper

under the Establishment Clause. The loan of materials here

does not constitute government indoctrination or create an

excessive entanglement between church and state. Most

importantly, the educational materials are provided entirely

without reference to the recipients’ religious affiliation; the

the students that attend them, exactly the same. Agostini v.

Felton, 521 U.S. 203, 234-235 (1997).

This Court should reverse the Fifth Circuit’s decision,

reaffirm that the analysis set forth in Agostini must be applied

to government aid programs such as Chapter 2, and formally

overrule Meek and Wolman to the extent those decisions are

inconsistent with the Court’s current understanding of the

Establishment Clause. To affirm the Fifth Circuit’s rigid

distinction between textbooks and other instructional materials

would exhibit not neutrality, but hostility toward religion, a

result this Court’s present Establishment Clause jurisprudence

emphatically rejects.

ARGUMENT

One can only hope that, at some future date, the Court

will come to a more enlightened and tolerant view of

the First Amendment’s guarantee of free exercise of

religion, thus eliminating the denial of equal protection

to children in church-sponsored schools, and take a

more realistic view that carefully limited aid to children

is Not a step toward establishing a state religion-at least

Meek v. Pittenger, 421 U.S. 349, 387 (1975) (Burger, C.J.,

concurring in part and dissenting in part).

The “future date" that Chief Justice Burger spoke of

twenty-four years ago already has arrived. This Court in

several cases subsequent to Meek and Wolman, and specifically

in Agostini, has "come to a more enlightened and tolerant view"

of government aid-to-education programs. No longer is

government aid to religious school students presumptively

unconstitutional because of the religious character of the

institution they attend. Rather, religious school students may

receive government aid on an equal basis with other students,

so long as the aid satisfies the three criteria established in

Agostini to ensure government neutrality toward religion.

I. THE ESTABLISHMENT CLAUSE ANALYSIS

MANDATED BY THIS COURT IN AGOSTINI vy.

FELTON GOVERNS THIS CASE.

A. The Three-Part Establishment Clause Test

Articulated in Agostini Determines the

Constitutionality of a Government Aid Program.

Even if the Fifth Circuit was obligated to follow this

Court’s decisions in Meek and Wolman, this Court should now

reject the Fifth Circuit’s perpetuation of the aimless distinction

between textbooks and transparencies. This Court’s decisions

subsequent to Meek and Wolman have undermined the

assumption upon which Meek and Wolman relied. In other

words, this Court has "departed from the rule . . . that all

government aid th t directly aids the educational function of

religious schools is invalid." Agostini, 521 U.S. at 225. To

affirm the Fifth Circuit panel’s reliance on Meek and Wolman

would merely serve to resurrect the now-discredited notion that

religious school students may not participate in neutral and

generally available government aid-to-education programs.

Such a result would contradict this Court’s strong legacy of

government neutrality toward religion. Therefore, Agostini, not

Meek and Wolman, should control the outcome of this case.

The importance of government neutrality toward religion to

this Court’s current Establishment Clause jurisprudence is seen

in numerous cases guaranteeing religious groups equal access

to generally available government facilities or programs. See,

e.g., Board of Educ. of Westside Community Sch. v. Mergens,

496 U.S. 224 (1990) (Equal Access Act guaranteeing high

school religious clubs equal access to meet on school facilities

during noninstructional time did not violate the Establishment

Clause); Rosenberger v. Rector and Visitors of the Univ. of Va.,

515 U.S. 819 (1995) (University violated Free Speech Clause

by denying student religious organization which published

Christian newspaper access to university funds generally

available to make payments to outside contractors for printing

costs of publications of student groups). '

These cases demonstrate that government adheres to the

requirements of both the Free Exercise and Establishment

Clauses when it treats religious activity neutrally, that is, in the

same manner it treats secular activity. In Mergens, Justice

O’Connor noted:

Indeed, the message [of equal treatment] is one of

neutrality rather than endorsement; if a State refused to

let religious groups use facilities open to others, then it

would demonstrate not neutrality but hostility toward

religion. The Establishment Clause does not license

government to treat religion and those who teach or

practice it, simply by virtue of their status as such, as

subversive of American ideals and therefore subject to

unique disabilities.

496 U.S. at 248 (plurality) (internal quotation marks and

citation omitted). In Rosenberger, Justice O’ Connor stated that

"[w]e have time and again held that the government may not

treat people differently based on the God or gods they worship,

or don’t worship. ... The Religion Clauses prohibit the

' See also Widmar v. Vincent, 454 U.S. 263 (1981) (university poli

exchading student religious organization ftom sing generally svatabie

university facilities violated the First Amendment); Lamb's Chapel v.

Center Moriches Union Free Sch. Dist., 508 U.S. 384 (1993) (school

district violated First Amendment by denying church access to school

premises solely to suppress the religious point of view the church espoused

on an otherwise includible subject).

government from favoring religion, but they provide no warrant

for discriminating against religion. ... Neutrality, in both

form and effect, is one hallmark of the Establishment Clause."

515 U.S. at 846 (internal quotation marks and citations

omitted) (emphasis in original).

This Court in Agostini followed the principle of

government neutrality toward religion when it modified "the

criteria used to assess whether aid to religion has an

impermissible effect.". Jd at 223. A government aid-to-

education program now survives Establishment Clause scrutiny

if it "does not run afoul of any of the three primary criteria we

currently use to evaluate whether government aid has the effect

of advancing religion: it does not result in government

indoctrination; define its recipients by reference to religion; or

create an excessive entanglement." Id. at 234.

In Agostini this Court examined the constitutionality of

sending public school employees into private religious schools

to provide remedial education under Title 1, 20 U.S.C. § 6301

et seg. The Agostini Court held that Establishment Clause

jurisprudence developed before and after its contrary decisions

in Aguilar v. Felton, 473 U.S. 402 (1985), and School Dist. of

Grand Rapids Sch. Dist. v. Ball, 473 U.S. 373 (1985), made

clear that the remedial education program under Title I did not

violate the Establishment Clause. Agostini, 521 U.S. at 236.

Specifically, the Court in Agostini modified the three-part

Lemon test, clarifying the factors relevant to the analysis of

whether a government aid program has the primary effect of

advancing religion. The Court analyzed the Agostini aid

program under three criteria derived from cases subsequent to

Meek and Wolman in which this Court examined various

government aid-to-education programs. Paramount to

upholding the program is the principle of government neutrality

toward religion which undergirds this Court’s current

Establishment Clause jurisprudence.

Because Chapter 2 and its Louisiana counterpart are clearly

government aid programs, the statutes’ constitutionality must

be determined under Agostini. To affirm the Fifth Circuit’s

reliance on Meek and Wolman would produce a result contrary

to this Court’s strong legacy of government neutrality toward

religion.

B. The Fifth Circuit Panel’s Decision Demonstrates the

Confusion Caused by Meek and Wolman.

This Court’s embrace of a First Amendment jurisprudence

undergirded by the principle of neutrality has only partially

fulfilled the hope expressed by Chief Justice Burger in Meek.

There still remains the confusing legacy of Meek and Wolman.

Indeed, the Fifth Circuit as much as admitted to laboring under

this confusing legacy, but declined to "take out our judicial

dividing rod and try to predict, on the basis of what has been

said since Meek and Wolman, what the present Court would

do." Helms, 151 F.3d at 371.

In striking down Chapter 2 and its Louisiana counterpart,

the Fifth Circuit relied solely on the distinction articulated in

Meek and Wolman--that government may loan textbooks but

not other instructional materials, to religious school students--

and struck down the aid program simply because it involved

supplemental instructional materials other than textbooks.

Helms, 151 F.3d at 374. The court relied exclusively upon

these two cases even though the premise upon which the

decisions are based--that the character of the aid at issue was

the sole determinant of the constitutionality of the program--is

at odds with current Establishment Clause jurisprudence as

well as principles of equal access established by this Court.

The panel’s decision to follow Meek and Wolman appears to be

based on similarities between the aid programs at issue,

coupled with admitted uncertainty as to the prevailing

analytical approach for such programs. Helms, 151 F.3d at

372.

The confusion underlying the panel’s analysis is evident

throughout its opinion. For example, in a separate section of its

opinion, the panel analyzed the Louisiana special education

program under the three criteria articulated in Agostini, 151

F.3d at 362, and yet, it explicitly refused to analyze the

program at bar under Agostini: "Agostini says nothing about

the loan of instructional materials to parochial schools and we

therefore do not read it as overruling Meek or Wolman.” 151

F.3d at 374. Even after acknowledging a "post-Agostini Lemon

test," 151 F.3d at 362, which specifically undermines the

central premise upon which Meek relied (that "[s}ubstantial aid

to the educational function of [sectarian] schools .. .

necessarily results in aid to the sectarian school enterprise as a

whole," Meek, 421 U.S. at 366 (emphasis added)), the court

proceeded to apply Meek and Wolman, not Agostini.

The absence of unequivocal guidance on this subject can

result only in needless perpetuation of "the denial of equal

protection to children in church-sponsored schools," Meek, 421

U.S. at 387 (Burger, C.J., concurring in part and dissenting in

part). Consequently, this Court must apply the three-part

criteria articulated in Agostini to the government aid-to-

education programs in this case. In doing so, the Court will

preserve government neutrality toward religion in the

distribution of government aid to education.

Il. CHAPTER 2 AND ITS LOUISIANA COUNTERPART

SATISFY THE THREE-PART CRITERIA

ARTICULATED IN AGOSTINI; TO HOLD

OTHERWISE WOULD ENGENDER HOSTILITY

TOWARD RELIGION.

Like the remedial education program in Agostini, the

programs here are generally available to public and nonpublic

schools without reference to religion. The materials by

definition are secular; extensive safeguards are in place to

ensure that no school receives "religious" material. Moreover,

the materials are strictly allocated according to the number of

students attending the respective schools; hence, no materials

reach a particular school unless a parent chooses to send his or

her child to that school. Finally, the state directs no funds to

religious schools under these programs. The decisions of

parents direct the flow of assistance. The funds are received by

the education agencies, which purchase the instructional

materials and then lend them to the schools. Title to the

materials remains in the education agencies.

These extensive safeguards are carefully designed to avoid

Establishment Clause problems while providing all students

with an equal opportunity to receive supplemental instructional

materials. Under the Fifth Circuit’s analysis, safeguards such

as these and the neutral and generally available nature of the

program are irrelevant. Religious students--attending religious

schools--simply may not receive the same _ secular,

supplemental instructional materials received by students in

public schools. This is blatant hostility toward religion.

A. Chapter 2 Does Not Result in Government

Indoctrination of Religion Because it is 2 Neutral

Program, Offering Supplemental, Secular

Materials, Generally Available to Both Public and

Nonpublic Schools.

Chapter 2 of Title I and its Louisiana counterpart do not

result in government indoctrination of religion? The

substantial safeguards discussed above ensure that all materials

purchased under these programs are "secular, neutral, and

nonideological.” 20 U.S.C. § 7372(a)(1). Also, unlike Agostini

2 We use the word "indoctrination" under protest. “Indoctrination” is

commonly viewed as teaching persons "to accept a system of thought

uncritically.". Webster’s II New College Dictionary 565 (1995). Hence,

"indoctrination" conveys the idea that religious beliefs cannot be the product

of rational reflection or even spiritual inspiration, but of acquiescence to

overbearing and mind-numbing repetition. “Indoctrination” also implies

that religious belief cannot be defended by rational argument. It goes

without saying that we disagree with both these implications. In any event,

it seems clear that merely loaning secular educational materials to religious

schools comes nowhere near even to government teaching, much less

"indoctrination," of religion.

and Zobrest, these programs do not involve government

employees interacting with students. The absence of live

personnel significantly decreases the danger of government

indoctrination of religion. Furthermore, as this Court pointed

out in Agostini, no government teaching of religion can take

place because the aid is "‘made available generally without

regard to the sectarian-nonsectarian, or public-nonpublic nature

of the institution benefitted.’” 521 U.S. at 225 (citing Witters v.

Washington Dept. of Servs. for the Blind, 474 U.S. 481, 487

(1986) (internal quotation marks and citation omitted)).

Chapter 2 aid is also limited by law to materials that

“supplement, not supplant” funds expended by private schools.

20 U.S.C. §7371(b). This consideration is not a constitutional

requirement. Obviously, the constitutionality of an aid

program--e.g., supplying an interpreter for a deaf student as in

Zobrest--cannot depend on the happenstance of whether the

private school already could or would provide the benefit in

question. See Asostini, 521 U.S. at 225 ("we have departed

from the rule . . . that all government aid that directly aids the

educational function of religious schools is invalid"). Rather,

governmental education assistance represents a discrete, neutral

benefit to students. Finally, the government itself directs no

Chapter 2 funds to religious schools, and title to materials

agency. 20 U.S.C. § 7372(c)(1). The direction of the benefits

is ultimately the prerogative of parents.

B. Chapter 2 Does Not Define its Recipients by

Reference to Religion Because the Program is

Available on the Basis of Secular, Neutral Criteria

that Neither Favor nor Disfavor Religion, and is

Available to Both Public and Nonpublic Schools on

a Nondiscriminatory Basis.

Important to this Court’s decision to uphold the Title |

program in Agostini was that it did not identify its recipients by

reference to religion; the program in Agostini offered

supplemental remedial instruction to al/ disadvantaged children

on a neutral basis. 521 US. at 234-235. "The services are

available to all children who meet the Act’s eligibility

requirements, no matter what their religious beliefs or where

they go to school." /d at 232. Because of the general

availability of the program, the Court also held that it "does

not, therefore, give aid recipients any incentives to modify their

religious beliefs or practices in order to obtain those services."

Likewise, Chapter 2 is available to all children in both

"public and private, nonprofit schools" for the purpose of

improving academic achievement. 20 U.S.C. §§ 7312 &

7351(b\2). The “aid is allocated on the basis of a neutral,

secular criteria that neither favor nor disfavor religion, and is

made available to both religious and secular beneficiaries on a

nondiscriminatory basis." 521 U.S. at 231. Once Louisiana

receives its Chapter 2 funds from the federal government, the

state education agency allocates eighty percent of the funds to

the local education agencies (LEAs). “Eighty-five percent of

those funds are earmarked for LEAs based on the number of

participating elementary and secondary school students in both

public and private, nonprofit schools. 15% go to LEAs based

on the number of children from low-income families." Helms,

151 F.3d at 367-68.

As a result, like the programs at issue in Witters and

Agostini, any Chapter 2 benefit to religious schools is indirect

and purely a “result of the genuinely independent and private

choices of individuals." 521 U.S. at 226 (internal quotation

marks and citations omitted). Government has no discretion as

to where the funds go and, consequently, no ability to promote

religion. In short, the funds follow the children.

In her concurring opinion in Witters, Justice O’ Connor

emphasized the importance of generally and neutrally available

aid: "[S}tate programs that are wholly neutral in offering

educational assistance to a class defined without reference to

religion do not violate the second part of the Lemon v.

Kurtzman test, because any aid to religion results from the

private decisions of beneficiaries." 474 U.S. at 493 (O’Connor,

J., concurring in part and concurring in the judgment) (internal

quotation marks and citation omitted). See also Mueller v.

Allen, 463 U.S. 388, 397 (1983) ("Most importantly, the

deduction is available for educational expenses incurred by ail

or sectarian private schools") (emphasis in original).

The Ninth Circuit’s analysis in Walker v. San Francisco

Unified Sch. Dist., 46 F.3d 1449 (9" Cir. 1995), although pre-

Agostini, recognized the neutral and general nature of Chapter

2 and upheld the program under relevant principles of

"government neutrality towards religion." /d at 1466.

Evaluating a Chapter 2 program that was, in all relevant

respects, identical to the one in this case, the Ninth Circuit

found it constitutional on grounds similar to the criteria later

prescribed in Agostini. Remarking that "Chapter 2 benefits are

neutrally available without regard to religion" and

"supplementary and cannot supplant the basic educational

services of the religious schools," the Ninth Circuit held that

"Chapter 2 . . . does not act as a subterfuge to channel money

to religious schools, but rather, it resembles other governmental

programs deemed constitutional due to the general applicability

of benefits conferred." 46 F.3d at 1467.

This Court should similarly find that Chapter 2 and its

effect of the programs "is to improve education for ail school

children." /d. at 1649 (emphasis in original).

C. Chapter 2 and its Louisiana Counterpart Do Not

Create an Excessive Entanglement.

Annual monitoring visits by local school district

employees, their attendant screening of instructional materials,

and visits from state monitors once every two years is clearly

less intrusive than the monthly visits held in Agostini to not

constitute excessive entanglement. /d. at 234.

Consequently, Chapter 2 and its Louisiana counterpart are

constitutional under this Court’s Establishment Clause

jurisprudence and the analysis for government aid-to-education

programs set forth in Agostini. To hold otherwise would be to

ignore this Court’s maxim of government neutrality towards

ligi

CONCLUSION

For the foregoing reasons, the judgment of the Fifth Circuit

should be reversed.

Respectfully submitted,