Amicus Curiae Brief — Mitchell v. Helms

No. 98-1648 aren |

IN THE

Supreme Court of the United States

Guy MITCHELL, et ai..,

. Petitioners,

Mary L. HELMS, et ai.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

BRIEF FOR THE

NATIONAL EDUCATION ASSOCIATION

AS AMICUS CURIAE SUPPORTING RESPONDENTS

ROBERT H. CHANIN *

JEREMIAH A. COLLINS

BREDHOFF & KAISER, P.L.L.C.

1000 Connecticut Avenue, N.W.

Suite 1300

Washington, D.C. 20036

(202) 833-9340

MICHAEL D. SIMPSON

NATIONAL EDUCATION

ASSOCIATION

1201 Sixteenth Street, N.W.

Washington, D.C. 20036

(202) 822-7035

* Counsel of Record

- (202) 789-0096 - WASHINGTON, D.C. 20001

WILSON-EPEes PRINTING CO

IBEST AVAILABLE COPY

TABLE OF CONTENTS

Page

Bee OW AUT E ED ocinccccicesicinssnsnenpecenerateeedisione ii

INTEREST OF AMICUS CURIAE .........0........ 1

SUMMARY OF ARGUMENT .0uw..........0.--ccececeeeeeeeee 2

FPR ERE SESE NOC SEI RE TO REO a TS 3

I. GOVERNMENT AID CAN BE PROVIDED

TO SECTARIAN SCHOOLS ONLY IF SUCH

AID IS CONFINED TO SECULAR FUNC-

PTE cuctsinsspatecldinitliciendniabanliatidins afbcnisiosalnbiptenshianiiverbine 3

II. IN PERVASIVELY SECTARIAN PRIVATE

SCHOOLS IT IS CONCEPTUALLY IMPOSSI-

BLE TO CONFINE THE USE OF TITLE VI

MATERIALS AND EQUIPMENT TO SECU-

LAR FUNCTIONS; IN OTHER SECTARIAN

SCHOOLS, SUCH CONFINEMENT IS IM-

POSSIBLE AS A PRACTICAL MATTER........ 13

FRE EIS ALES EO ORI AML EE CE 21

ii

TABLE OF AUTHORITIES

In THE

CASES Page: Supreme Court of the United States

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

Board of Education v. Allen, 392 U.S. 236 (1968)... 4,11

Bowen v. Kendrick, 487 U.S. 589 (1988) .....3, 6, 11, 15, 17’

Committee for Public Education v. Nyquist, 413

No. 98-1648

UB. 706 (1978) ccikiccciouseseeutiae 4, 6, 12, 13,

Committee for Public Education v. Regan, 444

U.S. 646 eae sits Sieben anaemia . ciehies ee 5 Guy MITCHELL, et al.,

Edwards v. Aguillard, 482 U.S. 578 (1987) ..........--. 17’ y Petitioners,

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

First National Bank v. United Air Lines, 342 U.S. Mary L. HecLMs, et ai.,

B96 (1952) ........-.----ne-o-csenervensssserseseonnsnssnsneunsusnennsentns 2) Respondents.

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

aff'd in pertinent part sub nom. Helms v. Picard, On Writ of Certiorari to the

151 F.3d 347 (5th Cir. 1998) mococecassocssabbndcatnatenesanes 16) United States Court of Appeals

Hunt v. McNair, 413 U.S. 734 (1973) seececscncascenscod 5, 16, 17’ for the Fifth Circuit

Lee v. Weisman, 505 U.S. 577 (1992) ...................... 19)

Lemon v. Kurtzman, 403 U.S. 602 (1971) ............... 3.

Levitt v. Committee for Public Education, 413

etl iD ising yg oo scat eke: * mamends, SOUCireN aneeC IATION

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

Mueller >. a 463 U.S. 388 ens : a 10) AS AMICUS CURIAE SUPPORTING RESPONDENTS

Roemer v. Maryland Public Works Board, 426 U.S.

TOE CIGTBD) ictciiciccrctiptcsntqsitineabiealuaiel 5, 11, 16, 17

Rosenberger v. Rector and Visitors of University This brief amicus curiae is filed by the National Edu-

of Virginia, 515 U.S. 819 (1995) .................-.-...- 8, 11, 12 cation Association (“NEA”) with the written consent

School District of Grand Rapids v. Ball, 473 U.S. of the parties, as vided in the Rules of this Court

STB CIDOB vavcenicinccstiistscsransmibiaieaddiaiemamaaa passim — ;

Sioan v. Lemon, 413 U.S. 825 (1978) ...-.---------.----0-+- 7 NEA is a nationwide employee organization with ap-

Tilton v. Richardson, 403 U.S. 672 (1971).............. 5, 6,17 proximately 2.4 million members, the vast majority of

tee v. sige emp ua elas (1970) .... ‘i a ) whom are employed by public schools, colleges, and uni-

idmar v. Vincent, 454 U.S. (ot ROBERT AO Ee . ities th : ,

Witters v. Washington Department of Services for we ed t — the “ ited ge NEA is poo

the Blind, 474 U.S. 481 (1986) .........-c..ce-cc0--coee00es passim Com © the preservation and improvement of pubic

Wolman v. Walter, 433 U.S. 229 (1977).............. 4, 5, 7,16)

1 Counsel for a party has not authored this brief in whole or

in part. No person or entity other than the amicus curiae, its

members, or its counsel, has made a monetary contribution to the

preparation or filing of this brief.

Zobrest v. Catalina Foothills School District, 509

it SE). | SRR Soe passim

STATUTES

20 U.S.C. § 7371 (b) .........-. 14.

2

education, and to the constitutional principle of separa-

tion between church and state. Because of these dual

commitments, NEA has a vital interest in the question

presented in this case—i.e., whether, and to what extent,

the Establishment Clause permits government to lend in-

structional materials and equipment to sectarian schools.”

In addition to its interest in this specific question, NEA

actively is involved in the national debate—and ongoing

litigation—regarding “vouchers” and other programs pur-

suant to which public funds are used to pay for students

to attend sectarian schools. The outcome of this case

could have significant implications for the constitutionality

vel non of such programs as well.

SUMMARY OF ARGUMENT

This case brings to mind Justice Jackson’s observation

in First National Bank v. United Air Lines, 342 U.S. 396,

398 (1952) (Jackson, J., concurring), that “sometimes

the path that we are beating out by our travel is more

important to the future wayfarer than the place in which

we chose to lodge.” Petitioners and the Secretary of Edu-

cation agree as to where this Court should end up—they

both maintain that the decision of the Court of Appeals

should be reversed—but they “part company .. . as to

the road [this Court should] travel to reach [that] destina-

tion.” Jd. We disagree with the destination that peti-

tioners and the Secretary would have this Court reach,

but our more fundamental concern—both for this case

and for Establishment Clause jurisprudence generally—

is with the paths they would have this Court travel.

Petitioners seek to reduce this Court’s Establishment

Clause jurisprudence to a simplistic “neutrality” principle

2 The term “sectarian school” is used herein to mean a private

school that is affiliated with a religion group, institution, or or-

ganization, and/or that seeks through its educational program to

inculcate religious beliefs.

3

that would open the door to unprecedented government

funding of religious activities. The Secretary, in contrast,

starts down the proper path by recognizing that govern-

ment must not be allowed to provide financial support

for religious activities, even in a “neutral” manner; but

the Secretary veers off the proper path by failing to ap-

preciate that religious activities are in fact impermissibly

subsidized when government aid goes to schools in which

the secular and sectarian components of the educational

program are inextricably intertwined, or when government

provides facially-neutral instructional materials or equip-

ment that readily can be shifted from the secular to sec-

tarian component of the program.

ARGUMENT

I. GOVERNMENT AID CAN BE PROVIDED TO SEC-

TARIAN SCHOOLS ONLY IF SUCH AID IS CON-

FINED TO SECULAR FUNCTIONS

A. Although “[nJeutrality, in both form and effect, is

one hallmark of the Estabiishment Clause . . ., there ex-

ists another axiom in the history and precedent of the .. .

Clause.” Rosenberger v. Rector and Visitors of University

of Virginia, 515 U.S. 819, 846 (1995) (O'Connor, J.,

concurring). That axiom is that “[p]Jublic funds may not

be used to endorse the religious message.” /d. at 846-47

(quoting Bowen v. Kendrick, 487 U.S. 589, 642 (1988)

(Blackmun, J., dissenting)). This “funding prohibition,”

Rosenberger, 515 U.S. at 852 (O'Connor, J., concurring),

is just as central to Establishment Clause jurisprudence

as the “neutrality principle.” id. It reflects this Court's

understanding that “the . . . evils against which the Estab-

lishment Clause was intended to afford protection,” Lemon

v. Kurtzman, 403 U.S. 602. 612 (1971), include not

only “sponsorship” and “active involvement of the sover-

eign in religious activity,” but “financial support” as well,

4

id. (quoting Walz v. Tax Commission, 397 U.S. 664, 668

(1970)).

This Court never has wavered from the principle that

“[a]id to a religious institution unrestricted in its potential

uses, if properly attributable to the State, is ‘clearly pro-

hibited under the Establishment Clause.” Witters v.

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

489 (1986) (quoting School District of Grand Rapids vy.

Ball, 473 U.S. 373, 395 (1985)). “In the absence of an

effective means of guaranteeing that the state aid derived

from public funds will be used exclusively for secular,

neutral, and nonideological purposes, it is clear from [this

Court’s] cases that direct aid in whatever form is invalid.”

Committee for Public Education v. Nyquist, 413 U.S.

756, 780 (1973)

B. The prohibition against the use of public funds to

pay for religious activities that is at the core of the Estab-

lishment Clause means that any government assistance to

sectarian schools must be confined either to matters that

do not have any educational content—such as transport-

ing students to such schools *—or to the purely secular

aspects of the schools’ educational program. This Court’s

determination that public funds would be used only for

secular functions was the basis for its approval of the

provision to sectarian schools (on equal terms with non-

sectarian schools) of textbooks,* diagnostic services,> and

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

4 See Board of Education v. Allen, 392 U.S. 236, 248 (1968) (em-

phasizing that the record did not support the contention that text-

books might be used to teach religion); Meek v. Pittenger, 421

US. 349, 362 (1975) (same); Wolman v. Walter, 433 U.S. 229,

251-52 n.18 (1977) (reiterating the “unique presumption” that

textbooks will not be put to religious uses).

5 Wolman, supra note 4, 483 U.S. at 241-44.

eS th. aa *

=" =

a ee.

5

state-prepared tests. The same determination—that the

government aid in question would not help to finance the

teaching of religion—also was the basis for this Court's

recent decision in Agostini v. Felton, 521 U.S. 203

(1997), which allowed public school teachers to provide

Title I remedial educational services on sectarian school

premises, subject to specified safeguards designed to assure

that the teachers would engage only in secular instruction

with no religious content. And, this secular-use limitation

likewise explains why this Court has sustained certain

programs pursuant to which public funds have been made

available to religiously-affiliated institutions of higher edu-

cation.’

The decisions approving such assistance have recog-

nized that, “{o]f course, under the relevant cases the out-

come would likely be different were there no effective

means for insuring that the [funds] would cover only

secular services.” Committee for Public Education v.

Regan, 444 U.S. 646, 659 (1980) (White, J.). When

faced with the possibility that funds or services pro-

vided by a government program might be used to sup-

port the religious activities of sectarian schools, this

Court consistently has found an Establishment Clause

violation. See, e.g., Meek v. Pittenger, 421 U.S. 349

(1975) (instructional materials other than textbooks can-

not be provided to sectarian schools because they might

be used for religious teaching); Wolman v. Walter, 433

U.S. 229 (1977) (same; and funds cannot be provided

for field trips because “public school authorities will be

6 Wolman, supra note 4, 433 U.S. at 239-40; Committee for Public

Education v. Regan, 444 U.S. 646 (1980).

7 See Tilton v. Richardson, 403 U.S. 672, 680, 682-84 (1971)

(plurality opinion); Hunt v. McNair, 413 U.S. 734, 744 (1973) ;

Roemer v. Maryland Public Works Bd., 426 U.S. 736, 759-61 (1976)

(plurality opinion ).

EE

6

—_

unable adequately to insure [the] secular use of the field

trip funds,” id. at 254); Nyquist, 413 U.S. at 774 (main-

tenance and repair grants cannot be provided because

they might be used to pay employees who maintain a

chapel); Levitt v. Committee for Public Education, 413

U.S. 472 (1973) (Burger. C.J., for an 8-1 majority)

(costs of testing cannot be reimbursed to sectarian

schools, even though the testing is required by state law,

where the tests are not prepared by the State and it can-

not be assured that there will be no religious content);

Ball, 473 U.S. at 286-88 (public funding of remedial and

enrichment classes is impermissible where the classes are

taught by parochial school teachers); id. at 399-40

(O'Connor, J., concurring) (“When full-time parochial

school teachers receive public funds to teach secular

courses to their parochial school students under parochial

school supervision, I agree that the program has the per-

ceived and actual effect of advancing the religious aims

of the church-related schools”); Bowen v. Kendrick, 487

U.S. 589, 609-10, 621 (1988) (Rehnquist, C.J.) (grants

for programs directed at adolescent sexual behavior and

pregnancy cannot be provided to “pervasively sectarian”

religious institutions, and cannot be used to fund religious

activities in an otherwise secular setting); Tilton v. Rich-

ardson, 403 U.S. 672, 682-84 (1971) (college facilities

constructed with public funds cannot be used for reli-

gious purposes even after twenty years have passed).

The prohibition against government support for reli-

gious activities has been applied not only when aid has

been provided directly to sectarian schools, but also when

attempts have been made to channel the aid through stu-

dents or parents. See Nyquist, 413 U.S. at 780, 783

(partial reimbursement of tuition is unconstitutional “[{i]n

the absence of an effective means of guaranteeing that the

state aid derived from public funds will be used exclu-

7

sively for secular, neutral, and nonideological purposes” );

Sloan v. Lemon, 413 U.S. 825 (1973) (same); Wolman,

433 U.S. at 248-50 (striking down loans to students of

instructional materials other than textbooks, because such

aid “flows in part in support of the religious role of the

schools”). See also Ball, 473 U.S. at 394 (1985) (fact

that aid flows through students or parents does not mean

that it should not be seen as aid to sectarian schools);

Witters, 474 U.S. at 487 (“[a]id may have th[{e] effect

{of a direct subsidy to sectarian schools] even though it

takes the form of aid to students or parents”).

Furthermore, even when government aid is directed

solely to the secular functions of sectarian schools, the

Establishment Clause is violated if the effect of the aid

is to relieve the schools of expenses they otherwise would

have incurred, thereby enabling them to shift additional

resources to religious activities. In Zobrest v. Catalina

Foothills School District, 509 U.S. 1, 12 (1993), this

Court stated that government aid (in that case, to stu-

dents) would constitute “an impermissible ‘direct sub-

sidy’” of a religious schooi if the effect of the aid were

to “relieve[] [the school] of an expense that it otherwise

would have assumed in educating its students.” And, peti-

tioners misread Agostini when they assert that “[tJhe

Agostini Court did not . . . hold that a ‘supplement, not

supplant’ provision is constitutionally required.” Brief for

Petitioners (“Pet. Br.”) at 26 n.16. To the contrary, this

Court took pains in Agostini to satisfy itself that the Title

I services at issue did not “supplant the remedial instruc-

tion and guidance counseling alrady provided in New

York City’s sectarian schools.” 521 U.S. at 229.8

8 Nor is the underlying principle at stake here implicated only

in situations where government assistance directly “supplants”

services previously provided by a sectarian school. If public funds

were to cover a substantial portion of the costs of a sectarian edu-

C. Petitioners’ “neutrality” theory of the Establishment

Clause is bottomed principally on two cases in which this

Court held that assistance provided to students could not

properly be viewed as government support of religious

activities merely because a student chose to use that assist-

ance at a sectarian school. See Witters, supra; Zobrest,

supra. The key to these two holdings is that the govern-

ment aid was provided pursuant to programs of broad scope

that in no way were skewed towards religion. Under those

programs, the recipient was able to use the benefit at so

many schools—the vast majority of which were nonsec-

tarian—that his or her individual choice to use the benefit

at a sectarian school could not properly be viewed as con-

stituting government aid to religion, any more than a gov-

ernment employee's decision to use his or her paycheck

for religious purposes could be so viewed. Witters, 474

U.S. at 486-87. See also Zobrest, 509 U.S. at 8 (analogiz-

ing challenged program to such universally available gov-

ernment services as police and fire protection).

In Witters, this Court held that sectarian schools did

not have to be excluded from the otherwise unrestricted

universe of education and training programs for which

blind persons could use vocational rehabilitation assistance

provided by the State of Washington. The Court empha-

sized that “the full benefits of the program [were not]

limited, in large part or in whole, to students at sectarian

institutions. On the contrary, aid recipients have full op-

portunity to expend vocational rehabilitation aid on wholly

secular education, and as a practical matter have rather

greater prospects to do so. Aid recipients’ choices are

cation, whether by “supplanting” services previously provided by

the schools or by providing “supplementation” that is sizeable in

relation to the services paid for by the schools themselves, the

Establishment Clause would be violated. Ball, 473 U.S. at 397.

9

made among a huge variety of possible careers, of which

only a small handful are sectarian.” 474 U.S. at 488.

It also was “important{],” id., that there was no indica-

tion that “any significant portion of the aid expended

under the Washington program as a whole will end up

flowing to religious education,” id. Because the program

was “in no way skewed towards religion,” id., and the

“link” between church and state was so “highly attenu-

ated,” id., the Witters Court found the program to be

akin to the “salary donation” paradigm rather than to the

“direct subsidy” paradigm. Id. at 487. While reaffirming

that “aid to a religious institution unrestricted in its poten-

tial uses, if properly attributable to the State, is ‘clearly

prohibited under the Establishment Clause,” id. at 489

(quoting Ball, 473 U.S. at 395), this Court concluded

that an individual’s decision to use his vocational rehabili-

tation assistance to pursue a religious career rather than

one of the “huge variety of [other] possible careers” to

which that assistance could be applied was not “properly

attributable to the State.” ®

In Zobrest, this Court held that the Establishment

Clause did not require that sign language interpreters pro-

vided to deaf students under the Individuals with Dis-

abilities Education Act be excluded from providing inter-

pretative services in sectarian schools. Noting that the

statute provided benefits to any child found to be dis-

abled—whether attending public or private school—the

Court again emphasized the “broad class of citizens de-

fined without reference to religion” to which the program

applied, 509 U.S. at 8, and the fact that the program was

“in no way skewed towards religion,” id. at 10 (quoting

9 Nor should it be overlooked that Witters involved postsecondary

education, where the Court has recognized that the potential for

religious indoctrination is much less than in elementary and sec-

ondary schools. See infra note 15.

10

Witters, 474 U.S. at 488). Explaining that “{tJhe provi-

sion of benefits to so broad a spectrum of groups is an

important index of secular effect,” 509 U.S. at 9 (quot-

ing Widmar v. Vincent, 454 U.S. 263, 274 (1981)), and

that any financial benefit realized by sectarian schools as

a result of the program was indirect and attenuated, id.

at 10-11, this Court found that the Establishment Clause

did not mandate the exclusion of religious schools from

the program.’

Thus, Witters and Zobrest stand for the proposition

that in certain narrowly defined circumstances—involving

neutral allocation criteria, meaningful individual choice,

and a broad public/private universe—government need

not be viewed as the source of funds received by a sec-

tarian school.

Quite obviously, that proposition has no application to

a program—such as Title VI—under which government

provides assistance to the schools themselves. There can

be no doubt in such a case that the assistance is “properly

attributable to the State.” Wéitters, 474 U.S. at 489.

See id. at 487 (explaining that the fact that vocational

assistance was provided to the student, not the school,

was “central” to the analysis); Zobrest, 509 U.S. at 10

(emphasizing that “no funds traceable to the government

ever find their way into sectarian schools’ coffers”).

Petitioners read Witters and Zobrest more broadly, cit-

ing them for the proposition that public funding of reli-

10In Mueller v. Allen, 463 U.S. 388 (1983), this Court likewise

repeatedly emphasized that the benefit at issue—a tax deduction

for a wide array of educational expenses incurred in public and

private schools—went to a broad spectrum cof recipients. /d. at

392, 397, 399. The Court’s holding in Meller was confined in any

event to “genuine tax deduction[s},” which are accorded a “tradi-

tional rule of deference,” id. at 397 n.6, and the Court emphasized

that the challenged deduction for educational expenses was merely

“one among many deductions” recognized in the Minnesota tax

system, id. at 396.

ee

11

gious activities is constitutional as long as the funds are

provided pursuant to a facially neutral allocation formula

and the ultimate destination of the funds is determined

by the “independent decisions of private parties.” Pet.

Br. at 23. As indicated above, even if this were a cor-

rect reading of Witters and Zobrest, it would not aid

petitioners here, inasmuch as Title VI materials and equip-

ment are provided to the sectarian schools themselves.

But, in fact, this proposition does not accurately reflect

the teaching of those two cases.

This Court never has viewed mere facial neutrality as

sufficient in and of itself to render government aid per-

missible under the Establishment Clause. As Chief Jus-

tice Rehnquist put it in Bowen v. Kendrick, “even when

the challenged statute appears to be neutral on its face,

we have always been careful to ensure that direct govern-

ment aid to religiously affiliated institutions does not have

the primary effect of advancing religion.” 487 U.S. at

609. See also Roemer v. Maryland Public Works Bd.,

426 U.S. 736, 747 (1976) (plurality opinion) (“[sJecular

purpose and a facial neutrality may not be enough, if in

fact the State is lending direct support to a religious ac-

tivity”); Rosenberger, 515 U.S. at 846, 852 (O'Connor,

J., concurring) (neutrality “in both form and effect” is

one “hallmark” of the Establishment Clause, but does not

override the “funding pohibition” of the Clause) (em-

phasis added) .™

Witters and Zobrest do not signify—any more than do

Agostini or Rosenberg—*“the supremacy of the neutrality

principle {Jor . . . the demise of the funding prohibition

in Establishment Clause jurisprudence.” Rosenberger, 515

11 Cf. Allen, 392 U.S. at 249 (Harlan, J., concurring) (where

government aid is challenged under the Establishment Clause,

“lnjeutrality is ... a coat of many colors’).

12

U.S. at 857 (O'Connor, J., concurring). The Court did

not suggest in Witters and Zobrest that the government

aid programs challenged in those cases survived constitu-

tional scrutiny simply because they allocated benefits on

a facially neutral basis and private choice was involved

in selecting the specific institutions at which the benefits

would be used. Rather, as we have explained, crucial to

the Court’s approval of those programs was the fact that

they operated across so broad a spectrum that the ultimate

receipt of funds by a sectarian school simply could not be

attributed to the government any more than a government

employee’s decision to spend his or her paycheck on reli-

gious activities could be attributed to the government.

Witters, 474 U.S. at 486-87.”

In short, the “neutrality/private choice” doctrine touted

by petitioners has very narrow bounds: it does not even

come into play where, as here, government aid is provided

directly to sectarian schools themselves; and it does not

sustain the constitutionality of a government program pur-

suant to which students attending sectarian schools con-

stitute a substantial portion of those who are eligible to

receive benefits. See Nyquist, 413 U.S. at 768, 782-83

and n.38; Meek, 421 U.S. at 363.%

12 That was the situation in Widmar and Rosenberger as well—

cases petitioners invoke as further support for the “neutrality”

doctrine, but which are not directly on point because they involved

the distinct isssue of access to a public forum. Widmar referred

to “[t]he provision of benefits to so broad a spectrum of groups” as

“an important index of secular effect.” 454 U.S. at 274 (emphasis

added). Rosenberger emphasized the “broad and diverse” view-

points of the student groups that participated in the student-

funded program at issue. Jd. at 839. See also id. at 842 (“wide

spectrum ef student groups”); id. at 850 (O’Connor, J., concur-

ring) (“widely divergent viewpoints of these many purveyors of

opinion, all supported on an equal basis by the University”).

13 Under the typical voucher/tax credit program, see Brief Amici

Curiae of the Institute of Justice, et al., at 18-21, the aid that is

13

Il. IN. PERVASIVELY SECTARIAN’ PRIVATE

SCHOOLS IT IS CONCEPTUALLY IMPOSSIBLE

TO CONFINE THE USE OF TITLE VI MATERIALS

AND EQUIPMENT TO SECULAR FUNCTIONS; IN

OTHER SECTARIAN SCHOOLS, SUCH CONFINE-

MENT IS IMPOSSIBLE AS A PRACTICAL MAT-

TER

Based upon the foregoing principles, it would be con-

Stitutional to lend Title VI materials and equipment to

sectarian schools only to the extent that the use of those

resources is confined to secular aspects of the schools’

educational programs. Unlike petitioners, the Secretary

of Education squarely acknowledges this limitation, see

Brief for the Secretary of Education (“Sec. Br.”) at 32-

33; but the Secretary argues that it is satisfied here. /d.

at 37-41.%* The Secretary's position is untenable for two

reasons.

directed to students of private elementary and secondary schools

generally flows in large measure to sectarian schools. Unlike the

situation in Witters and Zobrest, such aid programs are “skewed

towards religion,” and the fact that they tend to result in significant

public funding of sectarian schools is not some mere fortuity for

which government is not to be held responsible under the Establish-

ment Clause. Providing assistance that can be used only for a serv-

ice—e.g., private elementary and secondary education—that is fur-

nished largely by sectarian schools hardly fits the Witters analogy

of a government paycheck that can be used for services as to which

sectarian institutions play only a marginal role.

The argument that such funding of private sectarian schools

should be deemed defensible under the Establishment Clause to the

extent that it merly provides benefits comparable to those available

in public schools misses the mark. As the Nyquist Court observed,

such a view “would . . . provide a basis for approving through

tuition grants the complete subsidization of all religious schools on

the ground that such action is necessary if the State is fully to

equalize the position of parents who elect such schools—a result

wholly at variance with the Establishment Clause.” 413 U.S. at 782

n.38 (emphasis by the Court).

14The Secretary also recognizes the requirement, pointed out

supra at 7, that the loaned Title VI materials and equipment

14

A. The Secretary’s argument begins with the assump-

tion that there are separable secular components in the

educational program of sectarian schools, such that Title

VI resources could be directed so.ely to the secular com-

ponents. In some sectarian schools this may indeed be the

case, see Ball, 473 U.S. at 384 (“It is true that each school

may not share all the characteristics of [pervasively sec-

tarian] religious schools.”), but the reality is that in most

sectarian schools—in NEA’s experience, the vast majority

—the secular and sectarian aspects of the educational pro-

gram are “inextricably intertwined,” Meek, 421 U.S. at

366. “The very purpose of many of those schools is to

provide an integrated secular and religious education; the

teaching process is, to a large extent, devoted to the in-

culcation of religious values and belief.” Jd.

Sectarian schools themselves oftex are the first to ac-

knowledge this fact. In Ball, for example, the parents’

handbook of one school stated that the school’s goal was

“{a] God oriented environment which permeates the total

educational program.” 473 U.S. at 379 (emphasis by

the Court). A policy statement issued by other schools

declared that “it is not sufficient that the teachings of

Christianity be a separate subject in the curriculum, but

the Word of God must be an all-pervading force in the

educational program.” Id. (emphasis by the Court). In

a pending federal case in Ohio, one school’s informational

literature provides that “total religious instruction is the

major focus of the educational program ... . Lessons

learned in formal religious classes are purposefully carried

over into all subject areas;” and the parents’ handbook of

must not enable sectarian schools “to shift their [financial] re-

sources to religious purposes.” Jd. at 35-36. The Secretary argues

that the “anti-supplantation rule” of 20 U.S.C. § 7371(b) and its

implementing regulations ensure that this will not occur. See Sec.

Br. at 42-43. We adopt respondents’ position that, in this case, the

reality has been otherwise.

15

another school states that “a child needs to hear and learn

the word of God constantly, and [this can be done only

when the entire curriculum and the life of the school is

grounded in the word of God and dedicated to the pur-

pose of showing the love of the Savior to a world which

without Him, would be lost forever.” Simmons-Harris v.

Zelman, 54 F. Supp. 2d 725, 729 (N.D. Oh. 1999).

Although “pervasively sectarian” is the term this Court

has used to describe schools which have this type of edu-

cational program, see Bowen v. Kendrick, 487 U.S. at

620 n.16, petitioners—who interpret the term to refer to

all “religious schools”—would ban it from the lexicon as

“impl{ying] disapproval.” Pet. Br. at 34 n.22. And, in-

deed, some members of this Court have questioned

whether the term defines “a well-founded juridical cate-

gory,” Bowen, 487 U.S. at 624 (Kennedy, J., concur-

ring); see also id. at 631 (Blackmun, J., dissenting)

(characterizing “pervasively sectarian” as “a vaguely de-

fined term of art”). But whatever the appropriate choice

of words might be, there is no denying what this Court

meant when it indicated—without intending disapproval,

we would add—that “many of those schools,” Meek, 421

U.S. at 366, are “pervasively sectarian.” The Court was

acknowledging the reality that, in a substantial percentage

of sectarian schools (we need not for present purposes

debate what that percentage is), the secular and sectarian

aspects of the educational program are “inextricably inter-

twined,” id., the educational program includes religious

indoctrination, worship, and the inculation of religious

beliefs, and the educational program is designed to ad-

vance the religious mission of the school and its affiliated

religious institution. This is not some legal presuriptior;

it is a fact, and surely one of the “practical” considera-

tions, Sec. Br. at 20, that must guide the inquiry in this

area. It is a fact, moreover, that was found by the courts

16

below to characterize schools that have received Title VI

resources in this case. See Helms v. Cody, 856 F. Supp.

1102, 1118 (E.D. La. 1994), aff'd in pertinent part sub

nom. Helms v. Picard, 151 F.3d 347, 355 (Sth Cir.

1998).

This Court was entirely correct, therefore, when it

stated in Meek that “it would simply ignore reality to

attempt to separate secular educational functions from

the predominantly religious role performed by many of

Pennsylvania’s church-related elementary and secondary

schools and to then characterize [loans of instructional

materials and equipment] as channeling aid to the secular

without providing direct aid to the sectarian.” 421 U.S.

at 365. The Wolman Court likewise properly recognized

that, “[iJn view of the impossibility of separating the

secular education function from the sectarian, the state

aid inevitably flows in part in support of the religious role

of the schools.” 433 U.S. at 250.

Nor do Meek and Wolman stand alone in recognizing

the impermissibility under the Establishment Clause of

providing government aid to institutions in which the

secular functions that are the ostensible target of the aid

are inextricably intertwined with relivion. In Hunt v.

McNair, 413 U.S. 734 (1973), the Court, speaking

through Justice Powell, stated that “[a]Jid normally may

be thought to have a primary effect of advancing religion

when it flows to an institution in which religion is so

pervasive that a substantial portion of its functions are

subsumed in the religious mission.” Jd. at 743. The reve-

nue bond program challenged in that case was upheld

only after this Court determined that the recipient college

was not a pervasively sectarian institution. Jd. at 743-44.

Precisely the same approach was applied in Roemer,

where again this Court upheld an aid program only after

17

determining that the recipient colleges were not pervasively

sectarian. 426 U.S. at 754-58."

Chief Justice Rehnquist made the same point in Bewen

v. Kendrick, when he commented that:

One way in which direct government aid might have

[the primary effect of advancing religion] is if the

aid flows to institutions that are “pervasively sec-

tarian.” We stated in Hunt that

“falid normally may be thought to have a pri-

mary effect of advancing religion when it flows

to an institution in which religion is so perva-

sive that a substantial portion of its functions are

subsumed in the religious mission... .” 413

USS., at 743. [487 U.S. at 610.]

This Court left little doubt that the program challenged

in Bowen could not constitutionally provide aid “to

grantees that can be considered ‘pervasively sectarian’

religious institutions, such as we have held parochial

schools to be.” Id. at 621. See also Ball, 473 US. at

399-400 (O'Connor, J., concurring) (agreeing that

“fwJhen full-time parochial school teachers receive public

funds to teach secular courses to their parochial school

15 It is noteworthy that the institutions found not to be perva-

sively sectarian in Hunt and Roemer were colleges. As the Court

has observed, “[t]here are generally significant differences between

the religious aspects of church-related institutions of higher learn-

ing and parochial elementary and secondary schools.” Tilton, 403

U.S. at 685. In contrast to classes in sectarian elementary and

secondary schools, “college and postgraduate courses tend to limit

the opportunities for secfarian influence by virtue of their own

internal disciplines,” id. at 686, which generally emphasize acade-

mic freedom and critical thinking, id. For other reasons as well,

including the greater maturity of the students, see id., the “potential

for undue [religious] influence is far less significant with regard

to college students who voluntarily enroll in courses [than for stu-

dents in elementary and secondary schools}.” Edwards v. Aguillard,

482 U.S. 578, 584 n.5 (1987).

18

students under parochial school supervision, . . . the pro-

gram has the perceived and actual effect of advancing the

religious aims of the church-related schools . . . particu-

larly ... where .. . religion pervades the curriculum and

the teachers are accustomed to bring religion to play in

everything they teach”).

Nor is there anything in Agostini to contradict the view

that, in the educational programs of many sectarian

schools, there is no separable secular component. Agostini

held only that it should not be presumed that a teacher

employed by a public school system will attempt to in-

culcate religious beliefs whenever he or she provides Title

I services on the premises of a sectarian school, noting

that for such a teacher to do so would constitute a “de-

part{ure] from [the teacher’s] assigned duties and instruc-

tions.” 521 U.S. at 226. However, as Justice O’Connor

—the author of the Agostini decision—explained in her

concurrence in Ball, the opposi’e situation is presented

when instruction is being provided by “full-time parochial

school teachers . . . [who] are accustomed to bring reli-

gion to play in everything they teach.” 473 U.S. at 399-

400 (O'Connor, J., concurring). For teachers who are

subject to the principles expressed in the parent hand-

books and policy statements referenced above, see supra

at 14-15, constant inculcation of religious beliefs through-

out the school day is not a departure from “assigned

duties and instructions;” rather, it is a standing obligation

derived from the school’s declared philosophy and mission.

The foregoing should be correctly understood. We by

no reans are suggesting that pervasively sectarian schools

cannot provide their students with an adequate secular

education. Our point is that there simply is no such thing

as a separable secular component in the educational pro-

gram of pervasively sectarian schools. And, at least as

to such schools—which, we reiterate, probably constitute

the vast majority of all sectarian schools—the Secretary's

suggestion that “more extensive safeguards” can “prevent

the diversion of [Title VI] equipment and materials to

sectarian purposes,” Sec. Br. at 25, n.10, has no mean-

ing. Phrased otherwise, such safeguards are a conceptual

impossibility in schools where “(t]he secular education

those schools provide goes hand in hand with the religious

mission that is the only reason for the schools’ existence.”

Meek, 421 US. at 366.

B. Accepting for present purposes that at least some

sectarian schools “may not share all the characteristics of

{pervasively sectarian] religious schools,” Ball, 473 U.S.

at 384, and that the educational programs in such schools

do have an identifiable secular component, it is at least

conceptually possible at such schools to do what the Sec-

retary concedes is required under the Establishment Clause

— i.e., to confine the use of Title VI materials and equip-

ment to secular instruction free from religious content.

However, given the nature of the materials and equipment

at issue here—computers, software, etc.—the Secretary's

assertion that adequate “safeguards” can be put in place

“to prevent the diversion of such equipment and materials

to sectarian purposes,” Sec. Br. at 25, n.10, is to say the

least wishful thinking.

16 And, even if that were not the case, any effort to enforce a

separation of the secular from the sectarian in these schools would

run afoul of the “excessive entanglement” doctrine. Not only would

such an effort necessarily entail “pervasive monitoring,” see

Agostini, 521 U.S. at 234 (emphasis by the Court), but it would

place federal officials in the position of attempting to countermand

the schools’ guiding principle—often expressly stated—that a re-

fusal to separate the secular from the sectarian is mandated by

the religious mission that is “the only reason for the schools’ ex-

istence.” Such an effort to impose a “corrosive secularism,” Ball,

473 U.S. at 385, on pervasively sectarian schools would itself be at

war with the Establishment Clause. See Lee v. Weisman, 505 U.S.

577, 608 (1992) (Blackmun, J., concurring).

20

The “safeguard[]” upon which the Secretary would rely

in this regard is essentially the notion that compliance

with the no-religious-use rule could be ensured “by check-

ing logs and holding discussions with religious school

officials.” Sec. Br. at 44. Petitioners agree, noting that

all that is required is that “equipment and materials be

used only for courses in secular subjects,” and “that re-

striction is easily administered through the requirement of

usage logs for the equipment.” Pet. Br. at 29. We need

not resort solely to abstract analysis in order to demon-

Strate that this type of “honor system” would be ‘nsuffi-

cient to preserve the line of separation between church

and state. The record in this case confirms the point.

What is more, petitioners give the game away by prais-

ing the Title VI guidelines as “[not] prevent[ing] a stu-

dent from using a computer to gain access to a religious

website, just as students can at a public school or public

library.” Pet. Br. at 29-30. What that comment over-

looks is that, unlike the situation in a sectarian school, a

student in a public school or public library who uses a

computer to gain access to a religious website does so

at his or her own initiative, not because the institution that

received the computer from the .overnment has directed

him or her to do so. Thus, petitioners’ revealing illustra-

tion only serves to highlight the fact that in sectarian

schools, Title VI materials and equipment can be, have

been, and undoubtedly would continue to be “diver[ted]

. . . to sectarian purposes.” Sec. Br. at 25, n.10. The

Establishment Clause prohibits this; but, short of the type

of monitoring that would constitute excessive entangle-

ment under Agostini, there is no feasible way to prevent

it from occurring.

In sum, the principle that the Secretary properly

acknowledges as lying at the core of the Establishment

21

Clause—that public funds cannot be used to support

religious activities—is violated by the Title VI program

at issue in this case.

CONCLUSION

For the foregoing reasons, the judgment of the Court

of Appeals with respect to the questions presented should

be affirmed.

Respectfully submitted,

Ropert H. CHANIN *

JEREMIaH A. COLLINS

Brepuorr & KAtser, P.L.L.C.

1000 Connecticut Avenue, N.W.

Suite 1300

Washington, D.C. 20036

(202) 833-9340

MICHAEL D. SIMPSON

NATIONAL EDUCATION

ASSOCIATION

1201 Sixteenth Street, N.W.

Washington, D.C. 20036

(202) 822-7035

* Counsel of Record