# Amicus Curiae Brief — Wheeler v. Barrera > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0305%3A05 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1975 - **Citation:** 417 U.S. 402 ## Text 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0305%3A05. Public record. Not legal advice.