Amicus Curiae Brief — Wheeler v. Barrera

the Supreme Court of the United States

OCTOBER TERM, 1973

No. 73-62

HUBERT WHEELER, et al.,

Petitioners,

On CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

AMICUS CURIAE BRIEF OF MISSOURI

COALITION FOR PUBLIC EDUCATION AND

RELIGIOUS LIBERTY

G. Dennis SULLIVAN

Suite 401, Plaza Center Bldg.

800 West 47th Street

Kansas City, Missouri 64112

Attorney for Amicus

B. L. Mewpmwnatt, Inc., 926 Cherry Street, Kansas City, Mo. 64106, 421-3030

Identification and Interest of Amicus

Statement of Facts and Questions

Summary of Arguments—

A The Elementary and Secondary Education Act of

INDEX

1965 does not mandate that Title I teacher ser-

vices must be provided in nonpublic schools if

they are provided in public schools = regular

school hours

. The Act provides for Title I teacher services in

public schools during regular school hours but

does not require comparability according to which

teacher services must be provided on nonpublic

school premises if they are available on public

school premises during regular schools hours ........

. Because of the Act’s prohibition against Federal

control and its principle that Title I programs

must accommodate State law, it is decisive that

Missouri’s Constitution, law, and case law do not

authorize using public funds to send public school

teachers into nonpublic schools

Since teacher services are a necessary part of a

school’s operations, the providing of publicly-

financed teachers in parochial schools for any edu-

cational services during regular school hours is

impermissible aid to the schools themselves under

the Establishment Clause

. Sending publicly-financed teachers into parochial

schools and including parochial school officials or

teachers in planning and evaluating Title I pro-

grams inevitably lead to intimate, enduring, and

excessive administrative entanglement, contrary

to the Establishment Clause

15

26

Bag

6. The principle of comparability, according to

which publicly-financed teacher services compa-

rable to that provided in public schools must also

be provided in parochial schools, carries a poten-

tial of political divisiveness along religious lines,

contrary to the Establishment Clause — . 3

Conclusion ae 36

TABLE OF AUTHORITIES

CASES

Barrera v. Wheeler, 475 F. 2d 1338 (1973)

3, 4, 13, 14, 15, 16, 18, 20, 22, 23, 24

Board of Education v. Allen, 392 U. S. 236 (1968) ....19, 27

Committee for Public Education and Religious Educa-

tion v. Nyquist, ........ U.S. -....., 93 S. Ct. 2955 (1973)

20, 35

Harfst v. Hoegen, 163 S. W. 2d 609 (Mo., 1942) ...... 35

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

.20, 26, 28, 29, 30, 35

Lopez v. Luginbill, ........ F. 2d ....... (10th Cir., 1973) ... 15

Norwood v. Harrison, ........ U. S. .....-.. (1973) ......---.-------- 26

Special District v. Wheeler, 408 S. W. 2d 60 (Mo., 1966)

_ 18, 19, 20, 21

State ex rel. St. Louis Police Relief Association v. Igoe

et al., 107 S. W. 2d 929 (Mo., 1937) 2

Walz v. Tax Commission, 397 U. S. 664 (1970) .............. 0

Wolman v. Essex, 342 F. Supp. 399 (1972), aff'd, 409

U. S. 808 (1972) 28, 3

pase

CoNSTITUTIONS, STATUTES, AND REGULATIONS

1. Federal

Constitution—

Article I, Section 8 23

Elementary and Secondary Education Act of 1965 (P.L.

89-10), Title I—

Section 205 5

Section 604 15

20 US.CA.—

Section 24la 7, 17, 24, 25, 31

Section 24le (a) (2) 5, 10

Section 241g 23

Section 1232a 15

45 CFR—

Section 116.19 (a) 13, 14

Section 116.19 (b) 13, 14

Section 116.19 (d) 13

Section 116.19 (e) | 5, 10, 27, 28

Section 116.24 24

Section 116.31 (e) 23

2. State of Missouri

Attorney General Op. No. 26, 1-29-70 20-21, 22

Constitution—

Article I, Section 7 17, 21

Article III, Section 36 17, 21, 23

Article III, Section 38 (a) 22, 24, 25

Article IV, Section 15 23

Article IX, Section 1 17

—~

Iv

Article IX, Section 3 17,23

Article IX, Section 5 17, 21,23

Article [X, Section 8 17, 21, 23

Proposed but Defeated Legislation Related to Aid to

Education in Parochial Schools—

House Bill No. 24 (1967) 19

House Bill No. 639 (1969) 19

House Bill No. 26 (1971) 20

House Bill No. 30 (1971) 20

House Bill No. 389 (1971) 2

20

19

House Bill No. 1385 (1972)

Senate Bill No. 532 (1972)

House Bill No. 219 (1973) 19, 20

3. Other States

New York Attorney General to Commissioner of Edu-

cation, 7-15-65 20

New York Constitution—

Article VII, Section 8 21

Article XI, Section 3 21

OTHER AUTHORITIES AND SOURCES

111 Cong. Rec. (1965) 11, 12, 27, 30-31

116 Cong. Rec. (1970) 33-34

Guidelines: Special Programs for Educationally De-

prived Children, ESEA of 1965/Title I, OE-35079 _.. 15

House Report No. 143 (1965) 7, 8,10

Senate Report No. 146 (1965) 8, 12

50 C. J. 850 2

In the Supreme Court of the United States

OCTOBER TERM, 1973

On CERTIORARI TO THE UNITED STATES Court OF APPEALS

FOR THE EIGHTH CIRCUIT

AMICUS CURIAE BRIEF OF MISSOURI

COALITION FOR PUBLIC EDUCATION AND

RELIGIOUS LIBERTY

| IDENTIFICATION AND INTEREST OF AMICUS

| Amicus curiae Missouri Coalition for Public Education

and Religious Liberty is a not-for-profit organization in-

corporated under the laws of the State of Missouri. This

2

Coalition has two basic purposes: (1) To promote a sys-

tem of public education that is open to all without respect

to race, religion, creed, color or national origin and (2) to

preserve religious liberty and related rights guaranteed by

the Constitutions of the United States and State of Mis-

souri. Where laws threaten either or both of these pur-

poses, amicus believes, it is appropriate for the Coalition,

to the extent its resources will permit, to present its views

to the judiciary for its review.

The Coalition has two kinds of members: individual

and organizational. Individual members are citizens—in

each case, taxpayers, to the best of our knowledge—who

share the Coalition’s purposes. Organizational members

are groups which also share these purposes and which

choose to work together in support of them. Organiza-

tional members include religious, educational, libertarian,

and other bodies. For illustrative purposes, we identify a

few organizations, which are representative of others:

American Civil Liberties Union of Western Missouri,

American Jewish Congress of the Southwest Region (St

Louis), Americans United for Separation of Church and

State (Kansas City and St. Louis chapters), Christian Life

Commission of the Missouri Baptist Convention, Missouri

Association of Elementary School Principals, Missouri Con-

gress of Parents and Teachers, Missouri School Boards As-

sociation, and Reorganized Church of Jesus Christ of Latter

Day Saints. Though the Coalition’s members may hold

varying religious, philosophical, ethical, economic, and po-

litical views, they are in basic agreement in respect to

public education’s important place in American society and

to the importance of First Amendment principles to Amer-

ican government, religion, and society.

~

STATEMENT OF FACTS AND QUESTIONS

Amicus accepts the statement of facts made by the

United States Court of Appeals for the Eighth Circuit

(hereinafter appellate court). Barrera v. Wheeler, 475

F. 2d 1338, 1340-1342 (1973). Amicus has carefully read

the injunction and judgment issued on May 9, 1973, by the

United States District Court for the Western District of

Missouri, Western Division (hereinafter trial court) in com-

pliance with the appellate court’s mandate. Amicus be-

lieves that the statement of the case in the petition for writ

of certiorari is accurate. Petition for Writ of Certiorari, at

4-47 (filed July 5, 1973).

Amicus respectfully suggests that the issue, phrased in

petitioners’ questions, may be clarified as several questions:

Does Federal law mandate what the trial court orders?

Does Federal law establish the principle of comparability

and, in light of Federal law’s prohibition of Federal control,

require each state to apply it to services and delivery there-

of to parochial and private school students? Do the con-

stitution, law, and case law of the State of Missouri author-

ize said principle of comparability? Would the trial court’s

order aid parochial and private schools in any way? Do

the procedures mandated by the trial court necessitate ad-

ministrative entanglement between agents of State and

Church? Does the trial court’s order carry a potential for

continuing political controversy and division along religious

lines? In answer to said questions, amicus respectfully

offers the following arguments.

ARGUMENTS

1. The Elementary and Secondary Education Act

of 1965 does not mandate the delivery of Title I services

which the District Court ordered.

The trial court has ordered that public school personnel

services financed by Title I funds must be sent into paro-

chial and private schools during regular school hours if

such services are provided in public schools during said

hours.

The Federal courts which have reviewed the evidence

in this case to date have found, without exception, that the

Elementary and Secondary Education Act of 1965 (herein-

after ESEA) does not mandate any particular Title I serv-

ice and/or delivery thereof.*

1. In its June 2, 1972 ruling the District Court said:

“The [Barrera] plaintiffs contend . . . that if the

[Wheeler] defendants authorize the employment of teachers

in public schools during regular school hours, then Title I

mandates the employment of teachers in the non-public

schools on an equitable basis (average expenditure per pupil).

“Title I clearly does not mandate the assignment of teach-

In its March 16, 1973 majority opinion the United States Circuit

Court of Appeals for the Eighth Circuit said:

le... program, curriculum

or service is mandatory under the Act. S. Rep. No. 146, 89th

Cong., 1st Sess. 11 (1965); 111 Cong. Rec. 7298 (1965) (re-

marks by Senator Morse).” Barrera v. Wheeler, 475 F. 2d

1338, 1354 (1973).

In his dissenting opinion Judge Stephenson said:

ms _ Title I of the Elementary and Secondary School

Act clearly only permits and does not mandate assignment of

(Continued on following page)

Neither ESEA nor its regulations mandate(s) sending

ic school teachers into nonpublic schools. First, send-

ing Title I-funded teachers into nonpublic schools is not

among the optional “special educational services and ar-

rangements” listed in a parenthesis of ESEA of 1965 or sub-

sequent revisions. Sec. 205 (a) (2) of P. L. 89-10; 20

US.C.A. §24le (a) (2). Second, though regulations of the

U.S. Office of Education (hereinafter USOE) mention the

possibility of sending public school teachers into parochial

and private schools, the language is exceedingly guarded,

and certainly it does not say that public school personnel

must be made available on parochial school premises dur-

ing regular school hours:

“Public school personnel may be made available

on other than public school facilities only to the extent

necessary to provide special services (such as thera-

peutic, remedial, or welfare services, broadened health

services, school breakfasts for poor children, and guid-

ance and counseling services) for those educationally

deprived children for whose needs such special services

were designed and only when such services are not

normally provided by the private school.” 45 CFR.

§116.19(e). (Emphasis added).

Footnote continued—.

public school teachers to private schools during regular school

hours. That no such congressional purpose ever prevailed is

evidenced by the Act’s legislative ee The bill’s floor

of the school district, under the and laws of the

State.’ 111 Cong. Rec. 5979 (1965) the Act is only per-

missive with respect to school teacher on” on

Terms like “may,” “only to the extent necessary,” and

“only when” do not support the mandate issued by the trial

court.

Therefore, the trial court’s order goes far beyond any-

thing authorized or contemplated by ESEA or regulations

promulgated thereunder as construed by all Federal courts

to date with the exception of the majority opinion of the

appellate court.

Should Federal courts mandate Federally-financed edu-

cational services and delivery systems which ESEA neither

mandates nor mentions? Amicus respectfully suggests that

they should not, for such mandate would impose a judicial

order where a statute is silent. Even if it be contended

that Federal regulations expand ESEA and clarify the

statute’s silence (which argument amicus regards as un-

persuasive), it must still be emphasized that Federal regu-

lations only make personnel services and delivery thereof

permissive, not mandatory. What is optional cannot be

made obligatory without nullifying the principle of option-

ality. What is, at best, only permissive in some states,

amicus suggests, should not be made mandatory in all

states, including Missouri, without transgressing ESEA’s

clear impediment to Federalization of education.

2. The Elementary and Secondary Education Act

clearly contemplates the furnishing, of personnel ser-

vices in public schools during regular school hours, but

it does not specify the principle of comparability which

requires that teacher services made available on pub-

lic school premises during regular school hours must

also be furnished on parochial and private sched

premises during the same hours.

ESEA and legislative history thereon, amicus suggests,

clearly show that Congress contemplated that Title I funds

would be used to assist the public school districts or “local

7

educational agencies” (hereinafter LEAs) in expanding and

improving their educational programs, which necessarily

entail the use of personnel. However, neither ESEA nor

legislative history support the principle of comparability

implicit in the trial court’s order—to wit, that personnel

services provided in public schools must also be provided

in parochial and private schools.

In its declaration of policy, Congress made it clear that

ESEA was designed “to provide financial assistance” to

LEAs to enable them “to erpand and improve their educa-

tional programs . . . which contribute particularly to meet-

ing the special educational needs of educationally deprived

children” (i. e., children residing where there are concen-

trations of low-income families). 20 U.S.C.A. §24la. (Em-

phasis added).

LEAs are obviously engaged in providing personnel

services on public school premises during regular school

hours. Congress intended to assist them in doing better

what they were already doing and, of course, in adding to

their programs. Congress contemplated that personnel ser-

vices would be provided on public school premises during

the regular school day, as appears in the list of illustrative

services and methods contained in House Report No. 143,

89th Cong., Ist Sess. (1965), made by the House Committee

on Education and Labor:

“Additional teaching personnel to reduce class size.

Teacher aides and instructional secretaries.

Supervisory personnel and full-time specialists for im-

provement of instruction and to provide related pupil

services.

Classes for talented elementary students.

Special classes for physically handicapped, disturbed,

and socially maladjusted children.

Remedial programs, especially in reading and mathe

matics.

Programmed instruction.

English programs for non-English-speaking children.”

Ibid., at 6-7; cf. Senate Report No. 146, 89th Cong,

1st Sess. (1965), at 10-11.

Most of the services and methods listed above appear to-

ward the top of the committee’s list. Five of the first

- eleven in the list imply personnel services in public schools,

three others of these eleven relate to teacher training, and

another relates to consultants “for improvement of pro

gram.” After listing forty-nine methods, each of them

optional, the committee said:

“The above enumeration is not intended in any

way to limit the possible use of funds by the local

[public] school district in improving public elementary

and secondary education. However, the listing is il-

lustrative of the many possibilities for uses of funds

which are already being considered and conducted by

educators.” H. Report No. 143, at 7. (Emphasis added).

Public schools use teacher personnel to provide public edu-

cation during regular school hours. Obviously, Congress

intended for LEAs to use Title I funds for services and

methods of their choosing, including personnel services.

ESEA clearly differentiates between public and non-

public schools in respect to education. Congress's declared

policy is that ESEA shall assist LEAs or public schools.

The House committee’s language, quoted below, can only

mean that the committee did not contemplate that Title I

funds would have to finance personnel services in pa-

rochial and private schools comparable to such services in

public schools. Following its enumeration of forty-nine

optional services or methods, some of which may include

nonpublic school students, the committee said:

“No provision of the bill authorizes any grant for

providing any service to a private institution, but at the

same time the bill does contemplate some broadening

of public educational programs and services in which

elementary and secondary school pupils who are not

enrolled in public schools may participate. The extent

of the broadened service will reflect the extent that

there are educationally disadvantaged pupils who do

not attend public school.

The bill does not authorize funds for the payment

of private school teachers. Nor does it authorize the

purchase of materials or equipment or the construction

of facilities for private schools. However, consistent

with the number of educationally deprived children in

the school district who are enrolled in nonpublic ele-

mentary and secondary schools, the local educational

agency will make provision, under the terms of the

bill, for including special educational services and ar-

rangements such as dual enrollment, educational radio

and television, educational media centers, and mobile

educational services and equipment in which such chil-

dren can participate.

Thus, the bill does anticipate broadened instruc-

tional offerings under publicly sponsored auspices

which will be available to elementary and secondary

school students who are not enrolled in public schools.

10

. . . Several opportunities are afforded local pub- _

lic educational agencies to meet the special educa-

tional needs of elementary and secondary school pupils

regardless of whether they are enrolled in public

schools [i. e., nonpublic school pupils] through sup-

plementary educational services authorized by Title I

such as broadened health services, school breakfasts

for poor children, and guidance and counseling.” H.

Report No. 143, at 7-8. (Emphasis added).

Pursuant to the reports of House and Senate commit-

tees, USOE promulgated the following regulation:

“Provisions for special educational services for edu-

cationally deprived children enrolled in private schools

shall not include the paying of salaries for teachers or

other employees of private schools, except for services

performed outside their regular hours of duty and

under public supervision and control, nor shall they

include the using of equipment other than mobile or

portable equipment on private school premises or the

constructing of private school facilities.” 45 CFR

§116.19(e).

The language in ESEA respecting services for nonpub-

lic school students suggests either teacher services in pub-

lic schools via such an arrangement as dual enrollment

(under which students enrolled in nonpublic schools spend

part of their school day in public schools) or non-teacher

services on nonpublic school premises. ESEA stipulates

that an LEA’s application must make

“provision for including special educational services

and arrangements (such as dual enrollment, educa-

tional radio and television, and mobile educational

services and equipment) in which such [private school]

children can participate.” 20 U.S.C.A. §24le (a) (2).

ll

The legislative history on ESEA provides no basis for

the conclusion that ESEA mandates that services provided

in public schools must also be provided in parochial and

private schools. Rep. Perkins (Ky.), chairman of the sub-

committee which drafted the bill, said: “We do not intend

to put teachers in private schools, no.” 111 Cong. Rec. 5747

(March 24, 1965). When Rep. Goodell (N.Y.) pressed for

a clear legislative history indicating that public school

teachers may teach on private school premises, Rep. Perk-

ins said:

“My answer is no as to providing any teaching serv-

ice to a private institution. The key here is the ex-

tension of special educational services to deprived

children under public auspices and arranged for [sic]

supervised and controlled by public authority.” Ibid.,

at 5748.

When Rep. Cahill (N.J.) construed the aid-to-children

principle to mean that nonpublic school students “are en-

titled to the same aid as those who attend public schools”

and that the U. S. Commissioner of Education would have

responsibility “to see that that purpose is carried out,”

Rep. Perkins said:

“I cannot agree with that statement. First, adminis-

tration and approval of local school district plans and

conformance rests with the State educational agency”

[hereinafter SEA]. Ibid., at 5743.

Rep. Cahill observed that an LEA could use Title I funds

to provide “additional teachers in order to reduce a very

large classroom population,” and he asked: “If they do

this for the public schools, must they also do this for the

private schools?” Rep. Perkins replied: “They cannot

send a public school teacher into a private school. That

is not the intent of the bill.” Ibid., at 5743.

Under persistent debate by congressmen who wanted

parochial school pupils to share equally in ESEA benefits,

Rep. Perkins eventually conceded that ESEA, if State con-

stitution and law so authorized and an LEA so chose, would

permit limited special personnel services (such as guid-

ance and counseling) to be provided in nonpublic schools,

such instances being “very rare.” Ibid., at 5746.

The Senate Committee on Labor and Public Welfare,

Senator Morse (Oregon) reporting, also indicated that it

was not contemplated that Title I services would be ac-

commodated to the setting of parochial education. The

committee said:

“Where special arrangements (such as dual en-

rollment)—are made for the participation of children

from private schools, it is the committee’s expectation

that the arrangements will be administered in such a

manner as to avoid classes which are separated by re-

ligious affiliation.” S. Report No. 146, at 11. (Empha-

sis added).

Thus, according to Congress’s intent, Title I funds are not

to finance educational services in classes segregated by

religion.

Religious separatism is so characteristic of parochial

schools (which serve over ninety-five per cent of non-

public school pupils in Missouri) that any program of

teacher services on parochial school premises would of-

fend the principle that public funds shall not finance

classes segregated according to religion.’

2. It should here be noted that USOE has taken great

liberties with the Senate committee’s clear language. USOE's

regulations have restricted the no-religious-segregation principle—

perhaps deliberately—to programs conducted in public schools—

that is, to dual enrollment programs only. Obviously the phrase

(Continued on following page)

13

If ESEA is not the source of the concept of compara-

bility implicit in the trial court’s order, whence comes the

concept? One source is regulations promulgated by USOE;

45 CFR. §116.19 (a) which states that nonpublic schcol

children “shall be provided genuine opportunities to par-

ticipate” in Title I services, and 45 C.F.R. §116.19 (b) which

states that the number of nonpublic school children and

“the types of special educational services to be pro-

vided for them, shall be determined . . . on a basis

comparable to that used in providing for the partici-

pation in the program by educationally deprived chil-

dren enrolled in public schools.” (Emphasis added).

Another source is the majority ruling of the appellate court

that USOE regulations require

“a program for educationally deprived non-public

school children that is comparable in quality, scope

and opportunity, which may or may not necessarily

be equal in dollar expenditures to that provided in

the public schools.” Barrera, supra, at 1344.

Amicus suggests, however, that the concepts of “genu-

ine opportunities” and “basis comparable” as used in 45

Footnote continued—

“special arrangements (such as dual enrollment)” is much more

restrictive than the following language in USOE’s regulations:

USOE’s regulation applies only to dual enrollment projects in

public schools or facilities. Since public schools are already pro-

hibited from segregating pupils according to religious affiliation,

it is pointless for USOE regulations to prohibit religious segrega-

tion in Title I projects only if they take place in public school

14

C.F.R. §116.19 (a) and (b) are not the same as the con-

cept of comparability implicit in the trial court’s order,

The court concluded that comparability requires that per-

sonnel services for nonpublic school pupils shall be com-

parable and equitable to services for public school chil-

dren in respect to place (premise “where the pupil regu-

larly attends”) and time (“during regular school hours”),

The court ordered that services and activities for eligible

nonpublic school students must be “comparable and equita-

ble in quality, scope, and opportunity for participation to

those provided to eligible public school pupils similarly

situated.” USOE regulations merely order that the basis

for determining the types of services for nonpublic school

children shall be comparable to the basis applying to

public school students.

Even if ESEA and USOE regulations should require

the principle of comparability implicit in the trial court's

order, which amicus does not grant, this principle is too

vague to serve as a useful guide. The appellate court noted

that

“The analysis of whether the program within the

private school is comparable to the public school pro-

gram lends itself more to the definition of what is not

a comparable program rather than what is.” Ibid., at

1348.

Amicus suggests that LEAs, SEAs, and USOE will find it

no more easy to define comparability than the appellate

court did. One—and perhaps the only objective—index to

comparability is invalid and inapplicable. “Fair-sharing

of funds is not the intent of Title I.” Ibid., at 1347. The

trial court’s order implies that different places (public and

nonpublic school premises) and same time (regular school

hours) are the decisive determinants of comparable and

5

equitable personnel services. Amicus suggests that the

concept of comparability in the instant case is so vague

that it can only encourage arbitrary appraisal.

3. In light\of the prohibition against Federal con-

trol of federalization of education under the Ele-

mentary and Secondary Education Act and in light of

the requirement that Title I programs must accom-

modate State law, it is decisive in the instant case that

neither Missouri’s Constitution, law, nor case law au-

thorizes the delivery of educational services to non-

public school children which the District Court’s order

would impose.

ESEA explicitly prohibits Federal control or federali-

zation of education.” USOE recognizes that ESEA for-

bids Federal control. If Title I programs are to avoid

3. This prohibition appears in Sec. 604 of P. L. 89-10 (ESEA

of 1965), as quoted in Barrera, supra, at 1351, n. 22.

has subsequently reaffirmed the prohibition against Federal con-

trol, the present statutory wording being as follows:

“No provision of . . . the Elementary and Secondary Ed-

ucation Act of 1965 . . . shall be construed to authorize any

department, , officer, or emp of the United States

to exercise any supervision, a a ae

ion, or per-

sonnel of any educational institution, l, or school system

-.-” 20 U.S.C.A. §1232a, 1973 pocket part.

of USOE’s early publications says: “Federal control

st of education at any level . . . is prohibited.” Guide-

: Special Programs for Educationally Deprived Children

et.

gif

z

:

:

F

E

Ey

3

3

dards” apply to how nonpublic school children

may be included. the best of amicus’s knowledge, USOE has

claimed that its administrative power permits it to determine

—

Federal control, they must be consistent with State con.

stitutional and statutory provisions.’

16

The prohibition against Federal control must neces-

sarily include the services which a state will provide non-

public school children and the way it will deliver these

services. Federalization of education will be the inevita-

ble effect of any mandate that, where Federal funds are

involved, a state must provide nonpublic school pupils with

comparable and equitable personnel services available to

public school students.

In light of ESEA’s prohibition against Federal control

and its requirement that Title I programs must accommo-

date State law, it is pertinent to cite Missouri’s Constitu. _

tion, case law, and statutes respecting (1) the principle of _

comparability as it applies to parochial and private school

pupils and (2) sending public school personnel into non-

public schools to provide special educational services com-

parable to these available in public schools during regu-

lar school hours.

The inescapable conclusion is that the State of Mis-

souri’s legal framework provides no—absolutely no—basis

for what the trial court’s order would impose.

Amicus respectfully calls attention to Missouri’s af-

firmative constitutional principle that the State and its

Rejecting the argument that, because of conflict between

Federal and State laws, “the supremacy requirements dictate that

federal law controls” on Title I matters, the appellate court said:

“This approach . . substantiall

over, Congress

eral control of pro

gramming, and

prohibited, and the Commissioner of Education has contin-

that the grants under Title I must accom-

modate state law.” Barrera, supra, at 1351.

17

political subdivisions (including LEAs) shall establish and

maintain public schools and education. The State legis-

lature shall establish and maintain free public schools (Mo.

Const., Art. IX, Sec. 1). At least one-fourth of the money

in the State’s general fund shall go to the public school

fund (Art. IX, Sec. 3). This fund and other funds for

public school purposes shall be used to establish and main-

tain public schools “and for no other uses or purposes

whatsoever” (Art. IX, Sec. 5). The legislature shall ap-

propriate funds from the State treasury “for the purpose

of public education” (Art. III, Sec. 36) —and presumably

not for the purpose of nonpublic education or educational

services in nonpublic schools.

Missouri’s SEA and LEAs, subject to the foregoing

provisions, are justified in accepting Federal funds which,

according to ESEA, are designed to assist LEAs (public

schools) in expanding and improving their special pro-

grams to serve educationally deprived students. The stated

purpose of ESEA—at 20 U.S.C.A. §24la—is compatible

with the State of Missouri’s affirmative policy of estab-

lishing public schools and providing educational—includ-

ing personnel—services in public schools and under public

school auspices.

Amicus also calls attention to Missouri’s negative con-

stitutional principle that neither the State nor any of its

political subdivisions (including ESEAs) shall provide di-

rect or indirect aid (Art. I, Sec. 7) to religion, its educa-

tion, or its schools; no payment shall be made “from any

public fund whatever . . . in aid of any religious creed,

church or sectarian purpose, or to help to support or sus-

tain” any church-controlled school of any kind at any level

of education (Art. IX, Sec. 8).

Missouri’s Supreme Court ruled, after the enactment

of ESEA, that the State constitution prohibits the use of

18

public funds to send public school teachers into nonpublic

schools to provide special educational services during regu-

lar school hours, for this method does not establish and

maintain public schools. Special District v. Wheeler, 408

S. W. 2d 60 (Mo., 1966). Specifically, the State court ruled

against the two methods which Barrera plaintiffs con-

tended are the only two methods for providing compara-

ble and equitable teacher services for parochial school

students—shared-time and on-premises methods.* Plain-

tiffs’ Brief before trial court, at 40-41. The appellate court

interpreted the Special District ruling to mean that

“dual enrollment is presently unlawful in Missouri by

statutory interpretation and the use of ‘public monies’

for sending public teachers into private schools for

specialized instruction has been forbidden by state

constitutional provisions.” Barrera, supra, at 1350.

(Emphasis added).

6. The Missouri Supreme Court described two challenged

special education practices as follows:

“During the 1963-64 school year, the Special [public

school] District provided speech therapy to parochial school

children by sending its speech teachers (clinicians) into the

parochial schools. . . .

District. Parochial school children who desired such therapy

were released from the parochial schools for part of their

regular six-hour school day.” Special District, supra, at 62.

About the 1963-64 practice the court said:

“Is the use of public school moneys to send speech

teachers of the Special District into the parochial schools

for speech therapy a use for the purpose of maintaining free

public schools? We think not. The use of public school

funds for the education of pupils in parochial schools is not

for the purpose of maintaining free public schools. We hold

the 1963-64 practice unlawful and invalid.” Ibid., at 63.

The court ruled against the 1964-65 practice on the grounds

that Missouri’s compulsory attendance and school-day statutes

do not permit dual enrollment.

19

Amicus calls this Court’s notice to the fact that Mis-

souri’s General Assembly has repeatedly defeated bills to

establish special educational procedures which the Special

District decision overturned. In 1967 the chief emphasis

was on the dual enrollment procedure; the defeated bill

was House Bill No. 24, 74th General Assembly, Reg. Sess.

After the U. S. Supreme Court’s ruling in Board of Edu-

cation V. Allen, 392 U. S. 236 (1968), the emphasis shifted

to an on-premises method like that mandated in the trial

court’s order now at bar. The following bills, all of which

the Missouri General Assembly refused to enact, would

have authorized the use of “general revenue” to send pub-

lic school special education teachers into parochial and

private schools during regular school hours: House Bill

No. 639 (1969) of the 75th General Assembly, House Bill

No. 26 (1971) and Senate Bill No. 532 (1972) of the 76th

General Assembly, and House Bill No. 219 (1973) of the

77th General Assembly, which would have established the

principle of comparability and the same method of de-

livery of special educational services that appear in the

trial court’s order now before this Court.’

. Section 9 (4) of defeated House Bill No. 219 (1973) would

defined ces provided on an “equal basis” (compar-

20

The only significant difference between the principle

of comparability and method of achieving it as mandated

by the trial court and the philosophy and method rejected

by the Missouri Supreme Court in Special District and/or

General Assembly in defeating the aforementioned bills is

the identity of the funds from which to finance the services

offered.®

In early 1970 the Missouri Attorney General came up

with another proposal for circumventing the Special Dis-

trict ruling. Acknowledging that State funds cannot be

used to send public school teachers into parochial schools

to provide special education, he nevertheless proposed that

Federal funds can be used for this purpose.® Op. Atty.

th

unconstitutional in Lemon Vv. Kurtzman, 403 U. S. 602 (i971),

hich

Public Education and Religious Liberty v. Nyquist, ___. U. By cant

93 S. Ct. 2955 (1973). House Bill No. 219 of 1973, containing

the definition of “equal basis” quoted in note 7 above, also con-

— the same provisions. The legislature defeated all of the

9. It is unknown to amicus whether USOE’s publicity about

an opinion by New York’s Attorney General in 1965—Letter, Atty.

Gen. Lefkowitz to Commissioner of Education Allen, July 15,

1965—stimulated the Missouri Attorney General to issue his

opinion or whether parochial school interests in Missouri

him to imitate the New York attorney general. For evidence

USOE’s publicity, see quotation from the USOE Handbook in

Barrera, supra, at 1351, n. 23, particularly the which

says:

“A number of [state] school officials realized that they

could not submit the required assurance because of the re-

(Continued on following page)

21

Gen. No. 26, 1-29-70. He held that Congress intended for

Title I funds to finance public school personnel in paro-

chial and private schools, that Missouri’s laws do not

prevent it, and that Federal funds are not public funds,

thus immune to Missouri’s constitutional provisions.

Amicus suggests that the Missouri Attorney General’s

opinion is questionable at several points. (1) It ignores

ESEA’s prohibition against Federal control and its clear

intent that Title I programs must comply with State law

and concludes that Congress intended that, as necessary

and “under certain circumstances” (which the Attorney

General made no effort to define or explain), public school

personnel would go into nonpublic schools. Op. 26, at 5.

(2) It rests on the erroneous assumption that public of-

ficials may do anything not expressly forbidden by con-

stitution or statutes; since Missouri school law does not

pointedly prohibit the use of Title I funds to send public

school personnel into nonpublic schools, the Attorney Gen-

eral implied, the practice is permissible. Ibid., at 6. (3)

It suggests that the Special District decision is inapplicable

to Title I programs for the mere reason that these pro-

grams are financed from Federal funds, not from State

funds. Ibid., at 7. (4) It curiously holds the Federal

funds are not public funds under the meaning of Missouri's

Footnote continued—

strictions applying to private school students which were

operative in their States. The impasse was successfully re-

solved in one case by a State attorney general’s opinion which

held that State restrictions were not applicable to 100 percent

financed program. [New York]”

The rationale of New York Attorney General’s opinion is not ap-

Missouri—for the simple reason that the constitutions

two states differ. New York’s Constitution refers to “money

22

Constitution and therefore that they are immune to Mis-

souri’s constitutional prohibitions. Ibid., at 6. (5) It er-

roneously interprets a sentence in Article III, Section 38

(a) of Missouri’s Constitution as “positive authorization”

for using Federal funds to send public school personnel

into nonpublic schools because Congress intended it. Ibid.

Since the Attorney General’s opinion is germane to

the issue at bar, amicus respectfully explains why it does

not justify the practice mandated by the trial court. Most

crucial is the Attorney General’s contention that Federal

funds are nct “public money,” an opinion that is erroneous

on its face. He based his opinion on an inadequate reading

of State ex rel. St. Louis Police Relief Association v. Igoe

et al., 107 S. W. 2d 929 (Mo., 1937). The issue in Igoe was

whether funds which policemen had paid from their own

pockets into their own relief fund were private or public

money. Ibid., at 630. The court rightly ruled that these

were private funds. The court quoted the definition of

“public funds” in 50 C. J. 850:

“funds belonging to the state or any county or po

litical subdivision of the state; more especially taxes,

customs, moneys, etc., raised by operation of some

general law, and appropriated by the government to

the discharge of its obligations, or for some public or

governmental purpose.” Igoe, supra, at 933.

The Attorney General apparently jumped to the conclu-

sion that, since 50 C. J. 850 did not mention the Federal

Government, Federal funds are not public funds.

Any attempt to make a legal distinction between Fed-

eral and State monies (Barrera, supra, at 1351-2) is fanci-

ful at best, for Missouri’s Constitution forbids “the use of

‘public monies’ for sending public teachers into private

schools for specialized instruction” (ibid., at 1350). If

23

Title I funds are “public monies,” as amicus suggests they

are, they, because. of ESEA’s prohibition against Federal

control, come under Missouri’s constitutional provisions

respecting the use of public funds for public educational

purposes (Art III, Sec. 36; Art. IX, Secs. 3 and 5) and

prohibiting payments “from any public fund whatever” to

aid education in or to help to support or maintain church-

controlled schools (Art. IX, Sec. 8). For, if the fact that

certain funds given to the State of Missouri or its LEAs

for certain educational purposes are Federal funds re-

moves them from the controlling influence of Missouri’s

Constitution and school laws, Missouri’s acceptance of

Federal funds will inevitably result in Federal control.

Obviously, Federal funds for Title I programs have

all earmarks of public funds under Corpus Juris’s defini-

tion quoted above. They are “raised by operation of some

general law” pursuant to Article I, Sec. 8 of the U. S. Con-

stitution. Congress appropriates them “for some public or

governmental purpose.” ESEA provides that Title I funds

are to go to State SEAs and LEAs which operate under

State law. USOE makes payments “to each State” to fi-

nance LEAs’ programs and SEA’s administrative func-

tions. 20 U.S.C.A. §24lg (a) and (b). USOE regulations

require the SEA to “designate the officer who will receive

and have custody of funds granted to the State under Title

I” 45 C.F.R. §116.31 (e). (Emphasis added). In Missouri

Title I funds go into the State treasury and are under the

custody of the State Treasurer who has no legal duty un-

related “to the receipt, investment, custody and disburse-

ment of state funds.” Mo. Const., Art. IV, Sec. 15. (Em-

phasis added). It is Congress, not Missouri’s General

Assembly (as implied in Barrera, supra, at 1352), which

-has specified that Title I funds are to go to the State,

granted in trust for the purpose of assisting LEAs “to ex-

24

pand and improve their educational programs” for the

benefit of certain children. 20 U.S.C.A. §24la. The facts

that Title I funds are to be used to meet the special edu-

cational needs of certain children and that they are not to

be commingled with other public funds (as affirmed in

Barrera, supra, at 1352) do not negate the facts that Title

I funds are to go to each State and that they are to be

expended for programs accommodated to State Constitu-

tion and law. The Missouri Attorney General’s opinion to

the contrary notwithstanding, Title I or Federal funds dre

public funds; statutorily granted to the State of Missouri

and its LEAs for expenditure under State law, they are

subject to Missouri law. .

The last sentence of Article III, Section 38 (a), quoted

as follows in Barrera, supra, at 1353,

“Money or property may also be received from the

United States and be redistributed together with pub-

lic money of this State for any public purpose desig-

nated by the United States.” (Court’s emphasis),

does not authorize, amicus respectfully suggests, the use of

Title I funds to send public school teachers into parochial

and private schools. Amicus suggests several reasons why

the quoted sentence does not justify the practice man-

dated by the trial court’s order. (1) The use of the con-

junctive “and” indicates that the quoted sentence antici-

paied programs under which Federal and State funds are

mixed or commingled. (2) Title I funds are not to be com-

mingled with other public funds or to supplement other

funds for educational purposes (45 C.F.R. §116.24; cf. Bar-

rera, supra, at 1352), so it is impossible for them to “be

redistributed together with public money of this State.”

(3) Title I programs are financed 100 per cent from Fed-

eral funds, so there is no redistribution “together with the

25

public money of this State.” (4) Section 38(a) of Article

Ill of Missouri’s Constitution prohibits granting or lending

public money or property “to private persons, associations

or corporations” except as expressly authorized herein, so

it is therefore reasonable to assume that the last sentence

of said section deals with the subject of granting or lending

of public money or property to private interests. (5) There

is no indication in the trial court’s record, according to our

understanding, that this suit deals with granting public

money or property to private persons, associations, or cor-

porations; indeed, the record is to the contrary. Plaintiffs

want public school teachers under public control to provide

publicly-financed services on nonpublic school premises;

they are not seeking, as we understand it, to have Title I

funds or Federally-financed properties granted to nonpublic

school persons, associations, or corporations. (6) The sen-

tence mentions “any public purpose designated by the

United States,” language which, if at all applicable to Title

I, would relate to P. L. 89-10’s declaration of policy that the

designated public purpose is to assist LEAs to expand and

improve their services to meet special educational needs of

educationally deprived children. 20 U.S.C.A. §241a.

Amicus respectfully suggests that there is nothing in

Missouri’s Constitution, statutes, or case law to authorize

what the trial court’s order would impose on the State of

Missouri, such mandate being contrary to ESEA’s explicit

prohibition against Federal control. If the trial court’s or-

der stands, the Federal law’s assurance against Federal

control will be rendered inoperative, and each State will

have to observe the terms set forth in said order. In short,

the trial court’s order can only result in federalization of

education, contrary to assurances given at the time ESEA

was enacted and also contrary to the historic tradition that

education is reserved to the States or the people under the

Tenth Amendment.

26

4. Since teacher services are inextricably a part

of a school’s operations, the providing of publicly.

financed teachers in parochial schools for any educa-

tional services during regular school hours is imper.

missible aid to the schools themselves.

Common sense confirms the truism that teacher ser-

vices are intrinsic to the life of any school. Without teach-

ing personnel, a school would have no service to provide

children. A school, therefore, must provide teacher ser-

vices in order to be faithful to its raison detre.

If public funds finance teachers in parochial or private

schools during regular school hours, tax funds aid these

schools, relieving them of the expense of financing said

teachers from private funds. This is the effect regardless

of whether such publicly-financed teachers are called pub-

lic or nonpublic teachers, whether their services are called

special or general education, and whether they are techni-

cally under public or nonpublic control. Applying the

clear logic used by this Court in Norwood v. Harrison,

UW, Bh... estes (1973), amicus uses the Court’s equally-clear

language to suggest that publicly-financed teachers on non-

public school premises during regular school hours “are a

form of financial assistance inuring to the benefit of the

private schools themselves.” An inescapable educational

cost for schools, whether public or private, is the expense

of providing all necessary teacher services. “When...

that necessary expense is borne by the State, the economic

consequence is to give aid to the enterprise” in which the

school is engaged. Slip Op., at 8-9. The basic enterprise

of parochial schools, because of the permeation of religion

throughout said schools’ curriculum and operations, is reli-

gion-oriented. Lemon v. Kurtzman, 403 U. S. 602, 615-619

(1971).

ESEA contains no word suggesting, and certainly

nothing requiring, that Title I funds are to finance teacher

27

services in parochial schools on a basis comparable to such

services in public schools. Even congressmen who most

ardently supported aid to educational services for parochial

school students recognized that Title I funds could not go

directly to parochial schools for teacher services, e.g.,

see comment by Rep. Goodell that private schools are not

to get any money under ESEA. 111 Cong. Rec. 5747. A

USOE regulation, while permitting limited personnel ser-

vices “on other than public school premises,” specify that

such services may be provided “only when such services

are not normally provided by the private school.”® 45

CFR. §116.19 (e). This regulation implies what amicus

argues—namely, that the so-called aid-to-child principle

does not apply to anything for which a parochial school has

been assuming financial responsibility. This Court’s ex-

planation of the aid-to-child principle implies the same

thing, as amicus understands it; if private school students

or parents have not been providing textbooks or if private

schools have been providing them without direct cost to

parents or pupils, the aid-to-child principle would be in-

applicable. Board of Education v. Allen, supra, at 244, n. 6.

There is no essential legal distinction, amicus suggests,

between an LEA’s giving tax funds to a nonpublic school

to finance particular teacher services, on the one hand, and

an LEA’s sending publicly-financed personnel into non-

public schools to provide these particular teacher services,

on the other. Any difference is one of means, not of effect.

__ 10. Amicus observes that the trial of this case did not deal

with whether or not any parochial or private school in Missouri

has normally provided remedial instruction to any student. If

it has done so, its students would presumably be excluded from

the program contemplated by the trial court’s order, according to

USOE’s regulation. It would entail considerable entanglement

for public school officials to have to ascertain in detail what per-

sonnel services nonpublic schools have formerly offered before

they could comply with the regulation cited. Missouri school law

does not authorize public school officials to meddle with private

schools in such fashion.

In either case, the effect is to use public funds to provide

particular teacher services in nonpublic schools. ESEA

funds shall not be used to pay salaries “for teachers or

other employees of private schools, except for services per-

formed outside their regular hours of duty.” 45 CFR

§116.19 (e). There is no legal distinction between the use

of ESEA funds to pay salaries of personnel of nonpublic

schools and the use of such funds to pay salaries of person-

nel serving in such schools. What cannot be done directly

cannot be done indirectly. Wolman v. Essex, 342 F. Supp.

399, 412 (1972), aff'd, 409 U. S. 808 (1972).

It is unconstitutional under the Establishment Clause

for a State to pay even a part (15%) of the salary ofa

teacher of secular educational services of and in parochial

schools. Lemon, supra. What is invalid for states under

the First Amendment is also impermissible for the Federal

Government. Amicus respectfully argues that it is un-

constitutional to use Title I funds to finance secular teacher

services in parochial schools during regular school hours.

5. The District Court’s mandate necessitates an

intimate, enduring, and excessive entanglement be-

tween agents of State and agents of Church, thereby

violating the Establishment Clause of the First Amend-

ment.

The trial court’s mandate contains two features which

necessarily require an administrative entanglement be-

tween agents of State and agents of Church: (1) mande-

tory sending of public school teachers into parochial schools

if these teachers provide Title I services in public schools

and (2) mandatory inclusion of parochial school officials

“in the planning and evaluation of . . . Title I projects at

all stages.” Injunction and Judgment, points 1 and 4.

In Missouri around ninety-five per cent of all private

school students are enrolled in parochial or church-related

29

schools, and around eighty-eight per cent attend denomi-

national schools fitting this Court’s description in Lemon,

supra. Mandating that public school teachers must provide

services “on the private school premises where the private

school child regularly attends,” the trial court necessarily

requires public school personnel to do some of their regular

work on parochial school premises. In providing that LEA

applications under Title I “shall clearly evidence that per-

sons knowledgeable” of private school pupils’ needs “have

been consulted in the planning and evaluation of . . . Title

I projects at all stages,” the court requires public school

officials to be administratively entangled with parochial

school officials and/or teachers.

The Government’s post-audit power over parochial

schools’ books to insure that tax funds finance only secular

education in parochial schools involves public officials in

“an intimate and continuing relationship between church

and state.” Lemon, supra, at 621-622.

The trial court’s mandate necessarily requires a more

intensive administrative entanglement than that invali-

dated by Lemon. The mandate puts parochial school offi-

cials and/or teachers into every stage of Title I programs

serving parochial school students. Public school officials

(LEA) must consult parochial schoolmen about parochial

school pupils’ needs, and these parochial school officials

must plan and evaluate the programs. Moreover, public

school personnel must carry out Title I projects on premises

under the control of parochial school officials.

Any way one slices the arrangement mandated by the

trial court it comes out as entanglement. If public school

officials accept the plans or evaluations suggested by

parochial school officials, there is administrative entangle-

ment. If public and parochial school officials work to-

gether in planning, conducting, and evaluating Title I

30

projects involving parochial school pupils, there is close

and continuing entanglement.

Pupil school personnel, according to the trial court's

order, would have to work closely with, and perhaps under

the supervision of, parochial school teachers and/or offi-

cials who have court-mandated roles in planning and

evaluating Title I projects. These public school personnel

would have to satisfy parochial school officials who have

a voice in evaluating special educational services.

Among the evils the First Amendment was designed

to prevent is public officials’ active involvement in reli-

gious activities. Walz v. Tax Commission, 397 U. S. 664

(1970). No less offensive is ecclesiastical officials’ active

involvement in the administration of public policy. The

no-entanglement test calls “for close scrutiny of the degree

of entanglement involved in the relationship” betwee

public and religious institutions. “The objective is to pre-

vent, as far as possible, the intrusion of either into the

precincts of the other.” Lemon, supra, at 614.

The trial court’s mandate puts public and religious

personnel into each other’s precincts. Under the mandate,

church school personnel must enter into public schools

precincts in planning and evaluating Title I educational

projects of the public school district, and public school per-

sonnel must enter into church school officials’ precincts in

providing educational services. It would be difficult t

imagine an arrangement more pregnant with entanglement

6. The District Court’s mandate carries a poter

tial of political divisiveness along religious lines, com

trary to the First Amendment.

Two principles of the trial court’s mandate—compare-

bility and on-premises services—carry the potential of

political division along religious lines. If armed with this

31

Court’s approval, they would necessarily encourage an ex-

pansion of Federal aid-to-education programs under which

(1) taxpayers will be responsible for financing comparable

educational services for eligible students regardless of

which school they attend (public, parochial, or private)

and (2) such services made available on public school

premises must also be provided on parochial and private

school premises.

The fact that Title I contemplates special educational

services, not general education, is of no legal consequence

in respect to the principles of comparability and on-

premises services. What is special education?

ESEA does not define special education. The law

contemplates that ESEA funds will be used to meet “the

special educational needs of educationally deprived chil-

dren” (i. e., children residing where there is a concentration

of low-income families), but it also contemplates that these

funds will assist local public school districts “to expand

and improve their educational programs.” 20 U.S.C.A.

§24la.

The legislative history shows that Congress made no

effort to establish a legal distinction between special and

general education. Instead, it left it up to schoolmen to

make this differentiation."

ll. The following excerpts from the legislative history are

apropos:

“Mr. GOODELL. The question was very simple: Where

been people who have endeavored to get a religious contro.

(Continued on following page)

In the absence of a legal definition of special education,

the definition of “special personnel services” as used in the

trial court’s mandate is imprecise or vague. Thus, because

of statutory vagueness, the mandate means that public

school agents, administratively entangled with parochial

and private school agents, may, insofar as the law’s letter

is concerned, use Title I funds for anything that they think

may meet the special educational needs of educationally

Footnote continued—

versy started. I think the bill is perfectly clear. I cannot

visualize a situation anywhere that a local board of education

would undertake to put a public-school teacher in a private

school for general purposes.

Mr. PUCINSKI. .. . I think that the gentleman from

New York is looking for answers that cannot be found in

this bill because they are not in the bill. You are raising

all kinds of questions about the private schools. This bill

outlines and categorically what the private

schools can and cannot do with the money they get from the

Federal Government.

Mr. GOODELL. _ I did not know the private schools were

going to get any money from the Federal Government.

Mr. PUCINSKI. That is exactly it. ho lr w mg

spells ‘out private schools cannot get any direct assistance ..

funds directly into a private school is to muddy the waters. ...

Mr. GOODELL. . If the public school officials with

Federal money wish to put a public school teacher in a private

Mr. GOODELL. What subjects then would be permitted?

Mr. CAREY. ‘Special’ is the key word. The gentleman

knows that the word ‘special’ is in the bill. These are special

instructional services. Those that are special are not

We do avoid the whole question. We do not in to go

into the question what would be general instruction because

33

deprived (i. e., economically disadvantaged) children and

that comparable personnel services shall be provided in

both public and nonpublic schools.

Is it proper to define special education as education

that is compensatory or supplementary, not substitu-

tionary? ESEA services have been called compensatory.

A teacher service that takes the place of another teacher

service at a given time would seem to be wubstitutionary,

not supplementary.”

12. Since human beings are not ubiquitous, a school child

can be in only one place at a given time; a student receiving Title

I personnel services during any regular school hour cannot re-

ceive any regular personnel services at the same hour. Whereas

may

i uring

personnel services uring the regular school day the student has

to forego regular personnel services otherwise available to him

at same time. Amicus wonders if the offering of some, per-

haps i

“(a) Compensatory Education. The most glaring short-

coming in American education today continues to be the lag

in essential learning skills in large numbers of children of

poor families.

In the last decade, the Government launched a series

of ambitious, idealistic, and costly programs for the disad-

vantaged, based on the assumption that extra resources would

equalize learning opportunity and eventually help eliminate

In some instances, such programs have dramatically im-

proved children’s educational achievement. In many cases

the programs have provided important auxiliary services such

as medical care and improved nutrition. They may also have

helped prevent some children from falling even further be-

However, the best available evidence indicates that most

of compensatory education programs have not measurably

helped poor children catch up.

Recent findings on the two largest such programs are

i i ing. We now spend more than $1 billion

a year for educational programs run under Title I of the

(Continued on following page)

34

If this Court arms the trial court’s mandate with ap.

proval, the precedent will be set for an expansion of Title

I programs embracing the principle of comparability and

requiring that all Title I personnel services furnished on

public school premises during regular school hours must

also be provided on church and private school premises

during the regular school day.

Since ESEA leaves it up to LEAs to determine what

kind of services, including personnel services, to provide,

it would take no further legislative action to create a situ-

ation in which political pressures from church schools

would be set in operation against LEAs. There would be

neither statutory nor judicial protection against these pres-

sures. Each LEA would have to involve parochial school-

men “at all stages” (to use the trial court’s phrase) related

to Title I programs. In addition. to patent entanglement

along administrative lines, such a situation is pregnant

with the potential of political division along religious lines.

Implicit in the trial court’s mandate that an LEA's

application “shall clearly evidence that persons knowl-

edgeable of the needs of the private school children have

been consulted in the planning and evaluation of such Title

I projects at all stages” is the prospect that parochial schodl-

men will have veto power over ESEA programs involving

both public and nonpublic school children, since compara-

ble services must be provided. The effect of such an ar-

rangement would be to give nominal supervision to public

schoolmen but actual control to church schoolmen. To be

Footnote continued—

Elementary and Secondary Education Act. Most of these have

stressed the teaching of reading, but before-an -after tests

suggest that only 19% of the children in such programs im-

proved their reading significantly; 13% appear to fall behind

more than expected: and much more than two-thirds of the

i remain t is, they continue to

.. 2? 116 Cong. Rec. H1406, $2798-9. (

35

sure of a cooperative public school board parochial school-

men could be expected to seek the election of school board

members amenable to parochial schoolmen’s desires. Over

thirty years ago Missouri’s Supreme Court ruled unconsti-

tutional an arrangement under which public school boards

serve the educational objectives of church schoolmen, for

under such arrangement public school boards would be the

center of local political battles along religious lines. Harfst

v. Hoegen, 163 S. W. 2d 609, 612 (Mo., 1942).

This Court has repeatedly said that the Establishment

Clause was designed to prevent the “evil” of political di-

vision along religious lines. Lemon, supra, at 622; Com-

mittee for Public Education and Religious Liberty v.

Nyquist, ...... U. S. -......, 93 S. Ct. 2955 (1973); Wolman v.

Essex, 342 F. Supp. 399, 417 (1972), aff'd, 409 U. S. 808

(1972).

“. - . Modern governmental programs have self-

perpetuating and self-expanding propensities. These

internal pressures are only enhanced when the schemes

involve institutions whose legitimate needs are grow-

ing and whose interests have substantial political sup-

port . . . in constitutional adjudication some steps,

which when taken were thought to approach ‘the

verge,’ have become the platform for yet further steps.

A certain momentum develops in constitutional theory

and it can be a ‘downhill thrust’ easily set in motion

but difficult to retard or stop. Development by

momentum is not invariably bad; indeed, it is the way

the common law has grown, but is a force to be rec-

ognized and reckoned with. The dangers are increased

by the difficulty of perceiving in advance where the

‘verge’ of the precipice lies.” Lemon, supra, at 624-625.

The mandate’s potential of political divisiveness on

religious lines serves as a warning. The State of Missouri

36

needs no pe oc divisiveness. Nor does the United

States or State thereof need a Federally-funded educa-

tional program made to order for such political division.

One other aspect of this political potential deserves

mention, If states may refuse to use tax funds raised by

the operation of their own law for sending public school

personnel into parochial schools but must use tax funds

raised by the operation of Federal law for such purpose,

there, it can be expected, will be political pressure at the

Federal level to raise the amount of tax dollars expendable

under Title I. Church schoolmen would have reason to

push for an expansion of Title I, and they could be ex-

pected todo so. This Court’s ratification of the trial court's

mandate could only encourage further political action to

make the United States the patron of personnel services in

parochial schools, since State constitutional provisions

could obstruct the use of State-raised funds for such

purpose.

CONCLUSION

Amicus respectfully urges the Court to rule against

the concept of comparability and method of delivery of

Title I services ordered by the trial court pursuant to the

appellate court’s mandate because (1) Federal law pro

vides no basis for the mandated delivery system; (2)

Federal law contemplated extensive teacher services

public school premises but not on parochial school prem-

ises; (3) Federal law forbids Federal control of Title!

services and requires that Title I services in Missouri must

conform to State law, but the controlling State law pre

vides no basis for the principle and procedure implicit m

the trial court’s order; (4) publicly-financed teacher ser-

vices mandated by the trial court would necessarily aid

37

parochial schools; (5) the involvement of parochial school

officials with public school officials in planning and

evaluating Title I programs and the performance of public

teacher tasks on parochial school premises, as mandated by

the trial court, would inevitably foster impermissible ad-

ministrative entanglement betwen public and parochial

school officials and teachers, and (6) the philosophy and

procedure implicit in the trial court’s order carry a poten-

tial of political division on religious grounds.

Respectfully submitted,

G. Dennis SULLIVAN

Suite 401, Plaza Center Bldg.

800 West 47th Street

Kansas City, Missouri 64112

Attorney for Amicus

Copies are being forwarded to attorneys of record for

the parties this 28th day of November, 1973.