Opposition Brief — New Life Baptist Church Academy v. Town of East Longmeadow

No. 89-1118

In the

Supreme Court of the United St

October Term, 1989

NEW LIFE BAPTIST CHURCH ACADEMY, et al.,

Petitioners,

Vv .

TOWN OF EAST LONGMEADOW, et. al

and

COMMONWEALTH OF MASSACHUSETTS,

Respondents

° 7

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the First Circuit

BRIEF IN OPPOSITION

OF RESPONDENT,

COMMONWEALTH OF MASSACHUSETTS

JAMES M. SHANNON

ATTORNEY GENERAL

ROBERT H. BLUMENTHAL*

Special Assistant

Attorney General

Massachusetts Board

of Education

1385 Hancock Street

Quincy, MA 02169

(617) 770-7315

*Counsel of Record

(Additional counse! on inside cover)

EST AVAILABLE COPY

QUESTIONS PRESENTED

1. Whether the Free Exercise Clause

entirely bars a local school committee

from approving the secular education of

a private school because of the school's

religious belief that subjecting itself

to any approval by the state is a sin.

2. Whether an approval process

which neither evaluates the religious

teaching of a private school nor

involves the state on an on-going basis

in the affairs of the school constitutes

excessive entanglement in violation of

the Establishment Clause.

3. Whether an appellate court

properly applies the constitutional fact

doctrine when it accepts all purely

factual findings of the trial court but

reviews de novo the trial court's

conclusion on the constitutional

question whether this Court's “least

restrictive means” test for analyzing

Free Exercise claims has been satisfied.

11

QUESTIONS PRESENTED FOR REVIEW i

TABLE OF AUTHORITIES Vv

STATUTORY PROVISIONS INVOLVED l

STATEMENT OF THE CASE 3

REASONS FOR DENYING THE WRIT 9

I. THE COURT OF APPEALS'

RESOLUTION OF THE

ACADEMY'S FREE EXERCISE

CLAIM IS WHOLLY

CONSISTENT WITH THE

DECISIONS OF THIS COURT. ll

A. This Court’s precedents

establish that states

may set standards for

the approval of private

schools. 12

B. The Court of Appeals

used this Court’s test

for the evaluation of

Free Exercise claims. 16

C. The Court of Appeals

correctly applied

this Court's Free

Exercise test. 21

111

II. WHERE THE PROPOSED

APPROVAL PROCESS WOULD

NOT INVOLVE THE STATE

IN THE ACADEMY'S AFFAIRS

ON ANY LEVEL APPROACHING

THE INEVITABLE AND

SUSTAINED ENTANGLEMENT

DISAPPROVED IN THIS

COURT'S CASES, REVIEW

OF THE ESTABLISHMENT

CLAUSE CLAIM IS NOT

WARRANTED. 25

III. THE COURT OF APPEALS

PROPERLY APPLIED THE

CONSTITUTIONAL FACT

DOCTRINE 29

CONCLUSION 35

iv

TABLE OF AUTHORITIES

Cases

, 473 U.S.

402 (1985)

Board of Education v., Allen,

392 U.S. 236 (1967)

—- Baptist T i

Holbrook Public Schools, 616

F.Supp. 81 (D. Mass. 1984)

347 U.S. 483 (1954)

Care and Protection

of Charles, 399 Mass.

324, 504 N.E.2d 592 (1987)

Everson v. Board of

Education, 330 U.S. l

(1947)

Hague v, CIO, 307 U.S.

496 (1939)

Hobbie v. Unemployment

: Te: mahi ;

Florida, 480 U.S. 136

(1987)

Meyer v. Nebraska,

262 U.S. 390 (1923)

Murphy v. State of

Arkansas, 852 F.2d 1039

(8th Cir. 1988)

26

13

18

13

6,

13

18

16

12

24

18

Cases

Pj societ

Sisters, 268 U.S.

510 (1925)

Rosenbloom v.

Metromedia. Inc.

403 U.S. 29 (1971)

Runyon v. McCrary,

427 U.S. 160 (1976)

Sherbert v. Verner,

374 U.S. 398 (1963)

Thomas v. Review Board,

450 U.S. 707 (1981)

United States v. Lee,

455 U.S. 254 (1982)

Wisconsin v. Yoder,

406 U.S. 205 (1971)

United Stat ; Fitut;

First Amendment

Mass. Gen. L. ch. 71, § 1

Mass. Gen. L. ch. 71, § 2

Mass. Gen. L. ch. 71, § 3

12

29

14

16

16,

17,

13,

19

19

16

Mass. Gen. L. ch. 76, § 1

1965 Mass Acts ch. 741

Mass. Regs. Code tit.

603, § 8.02(1)

Miscellaneous

U.S. Supreme Court Rule 17.1

U.S. Supreme Court Rule 15.5

Fed. R. Civ. P. 52(a)

vii

24

30

30

The respondent-intervenor,

Commonwealth of Massachusetts,

respectfully requests that this

Court deny the petition for writ

of certiorari seeking review of

the Court of Appeals’ opinion in

this case reported at 885 F.2d

940 (1989).

STATUTORY PROVISIONS INVOLVED

Mass. Gen. L. ch. 76, § 1, only a-

small portion of which is set forth in

the Petition for Writ of Certiorari

("Pet.”") at 3, is a lengthy statute

dealing, inter alia, with compulsory

attendance requirements for children

residing in the Commonwealth of

Massachusetts.

The statute provides in relevant

part as follows:

Every child between the minimum and

maximum ages for school attendance

established by the board of

education4’...shall...attend a

public day school in [the] town

[where he or she resides] or some

other day school approved by the

school committee, during the number

of days required by the board of

education in each school year...but

such attendance shall not be

required of a child...who is being

otherwise instructed in a manner

approved in advance by the

superintendent or the school

committee.

Regarding the approval of “other day

school[s],” the statute additionally

provides as follows:

For the purpose of this section,

school committees shall approve a

private school when satisfied that

the instructions in all the studies

required by law2/

l/ The minimum age for school

attendance is six, Mass Regs. Code tit.

603, § 8.02(1), and the maximum age is

sixteen. 1965 Mass. Acts ch. 741.

2/ The studies required by law in

Massachusetts are orthography, reading,

writing, the English language and

grammar, geography, arithmetic, drawing,

music, the duties of citizenship, health

education, and good behavior, Mass. Gen._

L. ch. 71, § 1; the history and

constitution of the United States and

Massachusetts, Mass. Gen. L. ch. 71, §

2; and physical education, Mass. Gen. L.

oh. Fi, 3 8:

-2<

equals in thoroughness and

efficiency, and in the progress made

therein, that in the public schools

in the same town; but shall not

withhold such approval on account of

religious teaching....

STATEMENT OF THE CASE

Petitioners’ (hereinafter

collectively called the “Academy” )

abbreviated chronology of communications

between the Academy and the East

Longmeadow School Committee ("School

Committee”), and their repeated

characterization of the School

Committee's approval standards as

"unarticulated,” Pet. at 7 and 24,

“subjective,” Pet. at 9, “undefined,”

Pet. at 14, and “totally discretionary,”

Pet. at 23 (emphasis in original), are

misleading in the extreme for three

reasons.

First, the implication these

characterizations seek to create is that

the litigation is actually a dispute

about the reasonableness of the School

Re

Committee's proposed regulation of the

Academy's educational activities.

Throughout this litigation, however, the

issue has never been whether the School

Committee’s private school approval

criteria could be articulated with

greater clarity, or in a manner that

somehow made them more objective. On

the contrary, the issue has always been,

and continues to be, whether the Academy

would submit to any standards for

private school approval whatsoever.

As described in the District Court's

findings of fact, the Academy has never

wavered in its total opposition to

submitting itself in any way to the

approval of the School Committee. 666

F.Supp. at 297-299, Pet. App. at 62a-70a.

Indeed, the District Court found,

pursuant to a stipulation of the

parties, that "it is [the Academy's]

sincere religious belief that to submit

[its] educational ministry for the prior

whic

or continued approval of secular

authorities would violate the

sovereignty of Christ over his church

and would, therefore be a sin.” 666

F.Supp. at 297, Pet. App. at 63a. The

Court further found that the Academy

“would for religious reasons refuse to

submit [itself] for approval by the

[School Committee] even if approval was

likely to be easily obtained." 666

F.Supp. at 300, Pet. App. at 74a.

Second, to the extent that the

School Committee expressed a willingness

to be flexible in its approach to

approval of the Academy, this merely

reflected an effort to accommodate the

concerns of the Academy and not, as the

Academy would have it, the absence of

objective standards. For example, the

School Committee had initially requested

that all private school teachers hold

a

college degrees ,~’ a standard that a

majority of the Academy's teachers have

never met. 666 F.Supp. at 301 n. 5,

Pet. App. at 76a n.5.4/ In an effort

3/ Contrary to the Academy's

contention, Pet. at 8 n.4 and 31, the

Massachusetts Supreme Judicial Court has

not held that Massachusetts law

prohibits school committees from

requiring that private school teachers

possess college degrees. Care and

Protection of Charles, 399 Mass. 324,

504 N.E.2d 592 (1987), held that parents

seeking to instruct their children in a

home setting could not be required to

hold college degrees as a condition of

approval. Id. at 339. This case hardly

establishes that a degree requirement

for private school teachers is invalid.

4/ The District Court found that the

School Committee had “a reasonable basis

to be concerned about the qualifications

of at least some New Life teachers to

instruct children.” 666 F.Supp. at 306,

Pet. App. at 95a. The Academy, in any

event, has no religious objection to

employing college graduates, so long as

they meet the Academy's religious

qualifications. Such teachers,

moreover, appear to be available; the

Academy turned down five college-trained

applicants for teaching positions

because it did not have openings for

them. 666 F.Supp. at 301, Pet. App. at

77a and n.7.

-6§-

to accommodate the Academy on this

issue, School Committee officials agreed

to accept lesser credentials for a

limited number, but nota majority, of

the Academy's teachers. 666 F.Supp. at

300, Pet. App. at 72a.

Finally, the Academy's discussion of

its “standardized testing” proposal is

misleading. Standardized testing, as

proposed by the Academy and endorsed by

the District Court, is an alternative to

private school approval rather than an

alternative means of obtaining such

approval. The proposal depends entirely

on voluntary cooperation of parents in

the periodic administration of

standardized tests in all required

subjects to Academy students; the

submission of the results by the

parents, rather than the Academy, to the

School Committee (or to committees in

other communities where Academy students

reside); subsequent meetings between

ee

parents and local school officials; and

such follow-up by local school

officials, including the possible

seeking of “care and protection”

orders~’

should the parents fail to

respond to their children's educational

needs. 666 F.Supp. at 303, Pet. App. at

8la-83a. The proposal relies entirely

on the voluntary or coerced cooperation

of individual parents and students and

would not require the Academy itself to

take any action to improve its

educational deficiencies no matter how

grave. It would, therefore, give the

School Committee no recourse regarding

the Academy's educational program

5/ See Mass. Gen. L. ch. 119, § 24.

Care and protection proceedings are a

drastic measure aimed at depriving

parents of custody of their children.

It is a remedy which, as the Court of

Appeals has pointed out (885 F.2d at

950, Pet. App. at 33a-34a), is far more

intrusive than the approval process

under chapter 76, § l.

= =

|

regardless of how many students were

failing to make satisfactory progress.

As the Court of Appeals concluded, this

alternative “would ‘materially

detract'...from the state's efforts to

‘accomplish its [compelling]

purpose'...thereby ‘unduly interfer[ing]

with fulfillment of the governmental

interest,'...without a compensating

reduction in the ‘restrictive' nature of

the burden imposed on religious

freedom.“ 885 F.2d 940, Pet. App. at

26a (citations omitted).

REASONS FOR DENYING THE WRIT

The Academy states that "New Life

Baptist Academy is not objecting to all

state regulation of private religious

education...[{, bJut it has taken

religious and constitutional offense at

the method employed by the School

Committee of the Town of East

Longmeadow.” Pet. at 22-23. In fact,

aie

the issue in this case is and has always

been the Academy's objection to any

state approval process and its

insistence on an “alternative” that

would deprive the School Committee and

the Commonwealth of any authority to

approve or regulate private schools.

The Academy attempts to frame the

Free Exercise and Establishment Clause

issues in this case as novel and

substantial enough to merit this Court's

review. In fact, the Court of Appeals’

decision is wholly consistent with a

long line of Supreme Court precedent.

It applied the appropriate standards and

came to the proper conclusions.

Moreover, in its analysis, the Court of

Appeals properly applied the

constitutional fact doctrine requiring

de novo review of First Amendment

questions of constitutional fact.

Accordingly, the writ should be denied.

atin

I. THE COURT OF APPEALS' RESOLUTION OF

THE ACADEMY'S FREE EXERCISE CLAIM IS

WHOLLY CONSISTENT WITH THE DECISIONS

OF THIS COURT.

The Court of Appeals accurately

posed the primary issue in this

litigation when it asked, “does the

First Amendment's Free Exercise Clause

forbid the state (i.e., the School

Committee) to insist upon approving the

secular education2”

offered by a

religious school that believes it sinful

to submit even its secular program to

the approval of secular authorities?”

885 F.2d at 944, Pet. App. at 12a.

6/ The Academy would have this Court

believe that the Court of Appeals

distorted the record by treating the

academic component of its curriculum as

"secular." Pet. at 4-5, 32-33. Yet

there is no indication in the voluminous

record that the School Committee's

concerns involved matters that could in

any way be construed as other than

secular. Any consideration by the

School Committee of religious matters,

moreover, would be strictly forbidden by

Mass. Gen. L. ch. 76, § 1, which

expressly forbids the School Committee

from “withhold[ing its] approval on

account of religious teaching.”

=

On this question, the Court of Appeals

properly concluded that the answer was

Clearly no. 885 F.2d at 944, Pet. at

l3a.

A. This Court's precedents

establish that states may set

Standards for the approval of

private schools.

Nearly 70 years of this Court's

opinions underscore the state's

compelling interest in regulating

education. Education was identified as

=

a matter of “supreme importance” in

Meyer v. Nebraska, 262 U.S. 390, 400

(1923). Shortly thereafter, the Court

accepted as a given "the power of the

State reasonably to regulate all

schools, to inspect, supervise and

examine them, their teachers and pupils;

to require that all children of proper

age attend some school ... " Pierce

vy. Society of Sisters, 268 U.S. 510, 534

(1925). Later cases have conditioned

akan

parents' right to send their children to

a religious school on “the school

meet[ing] the secular educational

requirements which the state has power

to impose,” Everson v. Board of

Education, 330 U.S. 1, 18 (1947); have

held education to be “the most important

function of state and local government,"

Brown v. Board of Education, 347 U.S.

483 (1954); have acknowledged that the

state's authority to set educational

standards for private schools, including

teacher qualifications, is “a sensible

corollary of Pierce,” Board of Education

v. Allen, 392 U.S. 236, 247 (1967); have

declared “no doubt as to the power of

the State .. . to impose reasonable

regulations for the control and duration

of basic education,” Wisconsin v. Yoder,

406 U.S. 205, 213 (1971); and have

stressed that "“[parents] have no

constitutional right to provide their

=ttu

children with private school education

unfettered by reasonable government

regulation,” Runyon v. McCrary, 427 U.S.

160, 178 (1976).

The Academy seeks to dismiss this

steady line of opinion as mere dicta

"the collective weight of [which] has

become a burden too great for religious

litigants to overcome.” Pet. at 19. It

claims, moreover, that this Court's

review is required because these

decisions somehow conflict with what it

characterizes as this Court's “modern

free exercise doctrine,” a doctrine

which it claims the Court of Appeals

ignored. Pet. at 20-21. Even the

briefest examination of these claims,

however, reveals them as spurious.

First, the principles contained in

the line of cases the Academy seeks to

dismiss are non-controversial. Indeed,

the Academy itself nowhere contests the

Te

proposition that the state has a

compelling interest in the basic

education of children, and the Academy

expressly concedes in its Petition that

the State may reasonably regulate

private religious education. Pet. at 22.

Second, these principles are not in

conflict with any other decisions of

this Court. Rather, as discussed

immediately post, the cases

characterized by the Academy as this

Court's “modern free exercise cases,"

Pet. at 20, establish a test for

evaluating Free Exercise claims which

recognizes both the state's compelling

interest in education and the

permissibility of state regulation of

religious schools in service of that

compelling interest. This is precisely

the test employed by the Court of

Appeals in evaluating the Academy's Free

Exercise claim.

alitte

B. The Court of Appeals used this

Court's test for the evaluation

of Free Exercise claims.

The Court of Appeals, as well as the

District Court, utilized the four-part

test developed by this Court for

evaluating Free Exercise challenges.

That test seeks to determine: (1)

whether the religious beliefs in

question are sincerely held; (2) whether

these beliefs are burdened by the

proposed state action; (3) whether that

proposed action serves a compelling

State interest; and (4) whether that

proposed action serves the compelling

interest by the least restrictive

means. 885 F.2d at 944, Pet. App. at

12a-13a; 666 F.Supp. at 312, Pet. App.

at llla-1ll3a. This test is drawn

directly from Wisconsin v. Yoder, 406

U.S. 205 (1972); Thomas v. Review Board,

450 U.S. 707 (1981); Sherbert v. Verner,

374 U.S. 398 (1963); Hobbie v.

elBn

we

480 U.S. 136 (1987); and United States

vy. Lee, 455 U.S. 252 (1982), all cases

from the very “modern free exercise”

line which the Academy claims the Court

of Appeals somehow ignored. Pet. at

19-20 & n. 8.

The Court of Appeals, applying this

test, found that the Academy's religious

belief that submission of its school to

state approval was sincere. Second, it

concluded that School Committee approval

of the Academy burdened that belief.

885 F.2d at 944, Pet. App. at l4a.

Third, however, it concluded, in light

of the many cases discussed ante, at

12-14, that the state had a compelling

interest in regulating private

education. 885 F.2d at 944, Pet. App.

at l6a-l17a.

The Academy articulates no objection

to the Court gs Appeals’ conclusion

-17-

regarding this third part of the Free

Exercise test. Rather it is in the

Court's application of the fourth,

“least restrictive alternative” portion

of the Free Exercise test that the

Academy seeks to find fault. Under this

test, the Court of Appeals compared the

School Committee's proposed process,

involving a review of curriculum

materials and staff credentials,—’

7/ The Academy insists, as noted ante,

at 3, that the School Committee's

standards were “subjective,” and cites

Hague vy. CIO, 307 U.S. 496, 516 (1939),

for the proposition that constitutional

rights should not be infringed on the

basis of “mere opinion.” The underlying

ordinance in Hague, however, was held

void upon its face because it bestowed

limitless discretion on city officials.

Id. In contrast, Mass. Gen. L. ch. 76,

§ 1, sets clear standards for the

exercise of governmental discretion, and

expressly forbids evaluation of

religious teachings. It has, therefore,

been held to be constitutional by both

federal and state courts. Braintree

Baptist Temple v. Holbrook Public

Schools, 616 F.Supp. 81, 91 (D. Mass.

1984); Care and Protection of Charles,

399 Mass. at 330-333.

otte

a

with the Academy's proposed alternative

involving the voluntary annual

administration of standardized tests to

Church students. 885 F.2d at 943, Pet.

App. at 10a. Its conclusion was

unequivocal:

[T]he record reveals too many

potential educationally-related

difficulties, and too little

alleviation of the burden on

religion, to justify the district

court's conclusion that standardized

testing is a "less restrictive

alternative.”

Id. at 448, 26a (citations omitted).

In performing its least restrictive

means analysis, the Court of Appeals

began with this Court's directives to

ensure that the state practices in

question were essential to accomplish

the overriding governmental interest,

United States v. Lee, 455 U.S. at

257-258, and were indeed the least

restrictive means of fulfilling that

interest. Thomas v. Review Board, 450

U.S. at 718. The Academy does not

—itn

object to the application of these

cases, which are part of what it

identifies as the Court's “modern” line

of Free Exercise law. Pet. at 19-20.

As the Court of Appeals recognized,

however, practical guidance is required

in applying the concept of least

restrictive means. In finding such

additional guidance in the precedents of

this Court, the Court of Appeals

properly considered whether the

Academy's proposed standardized testing

alternative would actually satisfy the

state's concededly compelling interest

in education and whether that

alternative would substantially avoid

burdening religious beliefs. 885 F.2d

at 946-947, Pet. App. at 19a-25a. As

the Court of Appeals correctly points

out, the approach it took was no less an

application of a strict

scrutiny/compelling state interest test

="

because it aimed “to determine in a

practical way whether or not

standardized testing is a

constitutionally mandated less

burdensome alternative” to meeting the

state's compelling interest in

education. 885 F.2d at 947, Pet. App.

at 24a-25a; see id. at 946, 20a-2la.

C. The Court of Appeals correctly

applied this Court's Free

Exercise test.

The Court of Appeals exhaustively

examined the central question whether

the Academy's standardized testing

alternative was in fact a less

restrictive alternative to the School

Committee's proposed approval process.

In doing so it arrived at two

appropriate conclusions.

First, it concluded that the testing

proposal would not fulfill the state's

compelling interest in assuring the

basic education of its citizenry. The

att x

Court pointed to the difficulties

entailed in a testing system that was

wholly voluntary:

-How can the Academy make certain the

students and their parents agree to

the testing plan? Suppose they do

not. Suppose a parent refuses to

permit the Academy to give the

Committee the test results. Suppose

a parent refuses to permit his child

to participate in the testing, or in

the remedial “follow-up.” (Suppose,

for example, a parent decided that

doing so amounted to impermissible

cooperation with secular

authorities.)”"

885 F.2d at 948, Pet. App. at 26a-27a.

It pointed out the Establishment Clause

problems inherent in a plan that would

involve the School Committee in

administering remedial follow-up to

those students who tested poorly, id. at

948, 28a, and the limits of testing in

evaluating what will occur in the

Classroom and whether basic skills which

"do not readily reduce themselves to

standardized test questions” are being

taught. Id. at 948-949, 28a-30a.

x)=

_

Second, it concluded that the

testing proposal does not “substantially

alleviate[] the burden upon the free

exercise of religion,” id. at 950,

34a-35a, because the testing alternative

“involves and implicates the Academy, at

least to a degree, in the very approval

process to which it objects." Id. at

949, 33a. Moreover, the testing

proposal “risks imposing still greater

burdens upon individual parents or

children" because it leaves the School

Committee with the drastic remedy of

“enforc[ing] test-taking through

Criminal prosecutions and civil orders

to remove children from their

families.” Id. at 950, 33a-34a.

Finally, as the Court of Appeals

noted, the weight of legal precedent is

strongly against the en testing

alternative, id. at 951, 35a-37a, which

no other state has adopted. Id. at 949,

atte

30a,8/

The Academy in its petition

complains of the burdens imposed by the

School Committee's proposed approval

process, but nowhere does it address

(except to the limited extent addressed

in Part III, post) the Court of Appeals'

conclusions about the inadequacy of its

testing alternative. Its silence on

this point is telling. In short, the

Academy has has failed to articulate a

position that satisfies the standard in

U.S. Supreme Court Rule 17.1 that "“[a]

review on writ of certiorari...will be

8/ Contrary to the Academy's

suggestion, Pet. at 26, the Court of

Appeal'’s rejection of the standardized

testing alternative does not create a

conflict in the ciruits. Murphy v.

Arkansas, 852 F.2d 1039 (8th Cir. 1988),

upholds a state regulatory scheme in

which standardized testing was one of

the mechanisms proposed by the state to

monitor home education. Nothing in

Murphy suggests that religious schools

may require a state to limit its

educational review to standardized

testing.

athe

AE I Dee PR be

al eee ee

vee area

—

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granted only when there are special and

important reasons therefor.”

II. WHERE THE PROPOSED APPROVAL PROCESS

WOULD NOT INVOLVE THE STATE IN THE

ACADEMY'S AFFAIRS ON ANY LEVEL

APPROACHING THE INEVITABLE AND

SUSTAINED ENTANGLEMENT DISAPPROVED

IN THIS COURT'S CASES, REVIEW OF THE

ESTABLISHMENT CLAUSE CLAIM IS

UNWARRANTED.

The Academy, in an attempt to

persuade the Court to review this case,

raises the specter of excessive

entanglement of the state in its

religious affairs. Pet. at 28-30.

Apart from citing the uncontroversial

proposition that freedom of religion is

impaired by excessive government

intrusion into sacred matters, Pet. at

29-30, and from asserting that the

government in this case has “leaped the

wall of separation [of church and state]

and . . . the church [is] crying out for

protection,” Pet. at 30, the petitioner

offers no critique of the Court of

~ =

Appeals' Establishment Clause analysis

and no reason why this Court should

review this case.

‘Indeed the only case it cites -

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

fully supports the Court of Appeals'

sound conclusion that the magnitude and

type of state involvement condemned in

the cases of this Court is nowhere

approached by the facts of this case.

See 885 F.2d at 952-953, Pet. App. at

42a-50a. Aguilar involved a federal aid

program to religious schools which, in

order to ensure an absence of religious

content in the federally funded classes,

imposed “a permanent and pervasive state

presence in the sectarian schools

receiving aid,” 473 U.S. at 413, "whose

primary purpose [was] to monitor

teachers and students in an attempt to

guard against the infiltration of

religious thought." Id.

a%6.

Here, by contrast, the proposed

approval process would be neither

permanent and pervasive nor aimed in any

way at monitoring or eliminating

religious content. Rather, the School

Committee's proposed evaluation of the

school would involve a review of written

information about the school together

with an on-site inspection of the school

limited in time to that necessary to

review secular curriculum and

instructional methods and to determine

whether the Academy's teachers are

adequately qualified to teach the

required secular subjects. 666 F.Supp.

at 299-300, Pet. App. at 70a-73a. That

evaluation, as the Court of Appeals

pointed out, might well amount to a

single on-site visit. 885 F.2d at 952,

Pet. App. at 43a. If the school chose

to maintain a high number of teachers

without college degrees, more visits

<=

might be required, but only those

necessary to make an evaluation of their

teaching skills. Id. at 952, 43a. Once

this was done, inspection would cease,

and once approved, the school would be

subject to School Committee review

chiefly through written communications

once every two years. Jd. at 942, 7a-8a.

The Court of Appeals, after an

extensive survey of this Court's

precedents, could find “no case that

goes so far as to find an Establishment

Clause violation in such circumstances,”

id. at 953-954, 48a, and the Academy has

cited none. Indeed, as the Court of

Appeals observed, “to say that the

Establishment Clause forbids the

proposal would amount to saying that the

Clause forbids any classroom observation

or ‘check,* a holding that could

Significantly inhibit the state's

efforts to evaluate the secular

«2Q-

An sir al alittle BEE Pit

ee

education provided by religious schools

, evaluations that .. . are of

critical importance to the State." Id.

at 954, 49a (citations omitted). The

Academy's invitation to use this case as

an opportunity to achieve so radical a

result should be rejected.

IIl. THE COURT OF APPEALS PROPERLY

APPLIED THE CONSTITUTIONAL FACT

DOCTRINE

The Academy, citing Rosenbloom v.

Metromedia. Inc., 403 U.S. 29, 54

(1971), concedes, as it must, that

“First Amendment questions of

‘constitutional fact* compel [an

appellate court's] de novo review,” Pet.

at 32, and that "“[o]f course the

appellate court must be free to make a

de novo review of the ultimate

constitutional facts." Pet. at 32. The

Academy, therefore, does not challenge

this Court's constitutional fact

doctrine.

iG

Rather, its contention is merely

"that the Court of Appeals misapplied

this doctrine,” Pet. at 32, and that it

did so by "“reinterpreting the predicate

facts of the case.” Pet. at 32. This

claim, with its allusion to Fed. R. Civ.

P. 52(a), Pet. at 30, appears to be that

the Court of Appeals ignored the purely

factual findings of the District Court

upon which it predicated its legal

conclusions.

The Academy does not cite a single

page in the record or in the opinions

below to support its claim.~’ Rather,

its argument appears to rely principally

on the general assertion that the Court

of Appeals “became its own expert

witness on education, freely

9/ This lack of citation to the record

in an argument the evaluation of which

obviously requires examination of

particular findings of fact, is in

itself a sufficient ground for denying

the petition. See Rules of the Supreme

Court of the United States, Rule 15.5

=~) =

substituting its own opinions about the

values of various educational

practices.” Pet. at 33 ,20/

10/ Apart from this assertion, the

Academy alleges to two other factfinding

errors of the Court of Appeals. First,

it charges that the Court of Appeals

"treated the academic component of the

education of [the Academy] as ‘secular’

in nature,” and thereby ignored the

Academy's sincere religious belief that

the secular and religious aspects of its

teaching were intertwined. Pet. at

32-33. Nowhere, however, does the Court

Claim that academic teaching at the

school is completely free of religious

content. Its references to the secular

education of the Academy is merely a

reference to those aspects of the

school’s teaching which the School

Committee can properly review. See ante

at 1l n.6.

Second, the Academy claims that

"(t]he Court of Appeals .. . treated

the facts as if there were only a

limited number of visits proposed to

observe the school.” Pet. at 31. What

the Court of Appeals said, however, was

that the School Committee planned to

visit the Academy once, but, in the

absence of teachers with adequate

credentials, would be required to visit

more than once. 885 F.2d at 941-942,

Pet. App. at 3a, 7a. This is entirely

consistent with the District Court’s

findings. See 666 F.Supp. at 300, Pet.

App. at 72a.

-3]-

This assertion, however, is simply

untrue. Nowhere does the Court of

Appeals disregard a purely factual

finding of the District Court. It

merely “come[s] to legal conclusions

different from those of the district

court.” 885 F.2d at 941-942, Pet. App.

at lla. Indeed, this is perhaps best

illustrated by the Court's discussion of

the expert testimony.

To use the Academy's example, it is

simply not true that "“[t]jhe court of

appeals completely disregarded the

findings of fact entered by the district

court as to the educational viability of

standardized testing as a means of

measuring academic progress.” Pet. at

31. The Court of Appeals did not

reject the expert testimony concerning

the general usefulness of standardized

testing. Rather, following the dictates

of this Court's constitutional fact

a2 3a

ee

doctrine, it independently examined the

record to determine whether the

particular standardized testing

alternative proposed by- the Academy

adequately served the state’s compelling

educational interest, and whether that

alternative was a less restrictive

alternative than the School Committee's

process.

Its legal conclusion that the

Academy’s proposal did not constitute a

less restrictive alternative to meet the

state’s compelling interest was not

based on the merits or demerits of

standardized testing in the abstract but

on the particular inadequacies of the

Academy's proposal. These numerous

inadequacies were, as summarized ante at

21-23, found largely in the purely

voluntary nature of the testing, the

difficulties inherent in a proposal that

would depend on the state administering

afta

(perhaps coercively) remedial follow-up

to those students who tested poorly, and

in the Free Exercise burdens posed by

the alternative testing plan itself.

885 F.2d at 948-950, Pet. App. at

26a-35a.

Once again, the Academy fails to

point this Court to a single deficiency

in these conclusions. This is because

these conclusions are sound. In sum,

the Court of Appeals fully adhered to

this Court's constitutional fact

Goctrine and properly determined that

voluntary standardized testing did not

constitute a less restrictive

alternative means to satisfy the state's

compelling interest in the education of

its children.

-

CONCLUSION

For the reasons set forth above, the

petition for a writ of certiorari should

be denied.

Respectfully submitted,

JAMES M. SHANNON

ATTORNEY GENERAL

Robert H. Blumenthal*

Special Assistant

Attorney General

1385 Hancock Street

Quincy, MA 02169

(617) 770-7315

Maureen Brodoff

Marjorie Heins

Assistant Attorneys

General

One Ashburton Place

Boston, MA. 02108

(617) 727-2200

*Counsel of Record

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