Motion Amicus Curiae — Wheeler v. Barrera

* Octosgrk Tzrm, 1973 F id “Dp

y

No. 73-62 JAN 14 1974

>

Husert WHEELER, et al., ICHAEL RODAK, JR., CLE

Petsiwoners,

—_—V.—

Awnwa Barrens, et al.,

Respondents.

ON CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

—_———--——

——

MOTION FOR LEAVE TO FILE BRIEF AND BRIEF OF

AMERICAN CIVIL LIBERTIES UNION, AMERICANS

UNITED FOR SEPARATION OF CHURCH AND STATE,

FOR PUBLIC EDUCATION AND RELIGIOUS LIBERTY

(NEW YORK), OHIO FREE SCHOOLS ASSOCIATION,

AND PRESERVE OUR PUBLIC SCHOOLS (WISCONSIN)

AS AMICI CURIAE

KennetoH W. GREENAWALT

2 Broadway

New York, N. Y. 10004

Metvis L. Wuir

American Civil Liberties Union

22 East 40th Street

New York, N. Y. 10016

Water WRricHT

Americans United for Separation

of Church and State

8120 Fenton Street

Silver Spring, Maryland 20910

Attorneys for Amici Curiae

TABLE OF CONTENTS

PAGE

Motion for Leave to File 1

Interest of the Amici 3

The Question Presented 3

Statement of the Case 5

Summary of Argument 10

ARGUMENT 12

CoNcLUSION 27

TABLE OF AUTHORITIES

Cases:

Abington School District v. Schempp, 374 U.S. 203

(1963) 13, 14

Americans United for Separation of Church and State

v. Oakey, 339 F. Supp. 545 (1972) -...............16, 18, 20, 25

Board of Education v. Allen, 392 U.S. 236 (1968) -........... 15,

16, 19

Barrera v. Wheeler, 441 F.2d 795 (1971) 8

Barrera v. Wheeler, 475 F.2d 1338 (1973) -............. 8, 9,12

Committee for Public Education and Religious Liberty

v. Nyquist, 93 S. Ct. 2955; 41 L.W. 5153 (1973) -..14, 16,

18, 25, 26

PAGE

Earley v. Di Censo, 403 U.S. 602 (1971) -.........16, 18, 19, 20

Engel v. Vitale, 370 U.S. 421 (1962) 14

Everson v. Board of Education, 330 U.S. 1 (1947) —2, 13,

, 15, 16, 19, 26, 27

Klinger v. Howlett, Til. (Oct. 1973) -........18, 24

Lemon v. Kurtzman, 403 U.S. 602 (1971) -.9, 13, 14, 16, 17,

18, 20, 22, 23, 24, 25

McCollum v. Board of Education, 333 U.S. 203 (1948) 13

McGowan v. Maryland, 366 U.S. 420 (1961) —...13, 14

Public Funds for Public Schools of N. J. v. Marburger,

358 F. Supp. 29 (1973) 16

Sanders v. Johnson, 403 U.S. 955 (1971) 18, 20

Sloan v. Lemon, 413 U.S. 825 (1973) 2

Special District for the Education and Training of

Handicapped Children v. Wheeler, 408 S.W.2d 60

(1966) 14, 18, 25

State ex rel. Chambers v. School District No. 10, 155

Mont. 422, 472 P.2d 1013 (1970) 18, 24

Torcaso v. Watkins, 367 U.S. 488 (1961) 13, 14

Walz v. Tax Commission, 397 U.S. 664 (1970) -..... ...14, 0

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

U.S. 808 (1972) 18, 20

Zorach v. Clausen, 343 U.S. 306 (1952) .. 14

_

PAGE

Other Authorities:

Constitution of the United States

First Amendment—Establishment Clause -...2, 4, 7, 10,

11, 12, 24, 27

Title I, Etementary and Secondary Educational Act,

as amended 2, 4, 5, 6, 7, 8, 9, 10, 11, 12

20 U.S.C. §§241a-241m 5

20 U.S.C. §§242-244 5

20 U.S.C. §241e(a) (1) (2) .3, 5-6, 10

20 U.S.C. §241la 7

Constitution of Missouri 4, 7, 11, 14, 24, 27

Art. IX, $5 14

Art. I, §7 14

Art. IX, §8 V.A.MS. 14

W. Gelhorn and R. Kent Greenawalt, The Sectarian

College and the Public Purse, Appendix B at pp.

183-203 (1970) 14

“Education in a Democracy: Financial Support of

Private, Public and Parochial Schools,” pp. 17-28,

Human Rights, Vol. 3, No. 1 (Summer, 1973)

(Journal of the Section of Individual Rights and

Responsibilities of American Bar Association) -....27-28

_

In THE

Supreme Court of the United States

Octoser Term, 1973

No. 73-62

>

Husert WHEELER, ef al.,

Petitioners,

—vV.—

Anna Barrera, et al.,

Respondents.

ON CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

<=

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE

The amici curiae are non-profit, non-partisan organiza-

tions having a nation-wide membership of persons of all

religious views and sects, including citizens of Missouri.

They are devoted to the preservation and protection of

the fundamental principles guaranteed to citizens of this

country by the federal and state constitutions. They believe

in the historic, basic American doctrine of separation of

church and state and that only by its steadfast and strict

observance can the religious freedom of all of the people

be assured. ;

The amici are concerned over the numerous “severe con-

tests” (to use Jefferson’s words to describe the battles

engaged in by him and by Madison to achieve constitutional

religious freedom and separation of church and state)

which are being waged today in the national and state

legislatures, courts and executive branches to determine

2

whether the principles embodied in the Establishment

Clause are to prevail against the ever expanding and more

demanding claims of aggressive and dominant religious

bodies and their leaders for public support of their sectarian

schools.

The amici are concerned about the vast sums of public

moneys, amounting to millions of dollars, that are being

channeled, directly or indirectly, into sectarian schools by

various sophisticated devices designed to circumvent the

Constitutional prohibition. They are concerned about the

efforts continually being made to extend the “verge” of con-

stitutionality referred to in Everson v. Board of Education,

330 U.S. 1 (1947), and in Sloan v. Lemon, 413 US. 825

(1973). They are concerned over the number and variety

of ingenious plans being devised for channeling state aid

to sectarian schools in circumvention of the constitutional

prohibition.

The amici believe that Title I of the Federal Elementary

and Secondary Education Act of 1965, as construed by the

Court of Appeals below, presents another such “ingenious

plan” which violates the constitutional mandate against

the sponsorship or financial support of religion or religious

institutions and does not meet the cumulative criteria and

tests recently enunciated by this Court for a statute to be

constitutional under the Establishment Clause.

We believe this brief will be of assistance to the Court

in resolving the important constitutional issues present in

this case.

Respectfully submitted,

Kennetu W. GreEnawalt

2 Broadway

New York, N.Y. 10004

Attorney for Movants

—

In THE

Supreme Court of the United States

Ocroser Term, 1973

No. 73-62

__—»—

Husert WuHeEzzEes, et al.,

Petitioners,

—V.—

Anwa Barrera, et al.,

Respondents.

ON CERTIORARI TO THE UNITED STATES COUBT OF APPEALS

FOR THE EIGHTH CIRCUIT

—_$—»—

BRIEF AMICI CURIAE

Interest of Amici

The interest of amici is set out in the preceding motion

for leave to file. y

The Question Presented

This brief is directed only to the constitutional issue

raised by the decision in the Court of Appeals. That issue,

as stated in the petition for certiorari, is as follows:

“Jf the Elementary and Secondary Education Act of

1965, 20 U.S.C. 241e(a) (2), requires that, notwithstand-

4

ing contrary State law, particular educational services

funded pursuant to the Act be performed in religious

schools by publicly employed personnel during regular

school hours if they are performed in public schools

during those hours, is it to that extent violative of the

Establishment Clause of the First Amendment to the

United States Constitution?”

This question is substantially embodied also in one of

the issues stated in the pre-trial order (App. pp. 37-8), as

follows:

“Is it lawful to make personnel, who are employed

to implement Title I projects, available on private

school premises during regular school hours in order

to provide special services to educationally deprived

children attending private schools?”

While this brief is addressed only to the copstitutio

issue, amici support the position of the aexsdest

the District Court and the dissenting Circuit Judge that

Title I does not mandate the furnishing of publicly em-

ployed ‘teachers to teach in sectarian schools during regu-

lar school hours and that defendants are not required to

violate the Constitution of Missouri in their use of Title I

funds, as would occur if plaintiffs succeeded in obtaining

the relief sought in the complaint and if defendants were

required to carry out the mandate of the Court of Appeals.

Statement of the Case

Plaintiffs, respondents here, are parents of children at-

tending nonpublic, parochial schools in Missouri. Suing in-

dividually and on behalf of the minor plaintiffs, they

brought this class action in the United States District

Court, Western District of Missouri, “on ehalf of all edu-

cationally deprived children attending nonpublic schools”

in the State of Missouri and prayed in their complaint for

Defendants, petitioners here, are the Commissioner of

Education of the State of Missouri and members of the

Missouri State Board of Education (App. pp. 13-14).

This action concerns the interpretation, application and

constitutionality of Title I of the Elementary and Secon-

dary Educational Act of 1965, as amended (20 U.S.C.

§§241a-241m, 242-244) which comprises a plan by which

federal funds are granted to local public educational agen-

cies for the purpose of providing programs for the special

needs of educationally deprived children within local school

Section 24le thereof (20 U.S.C. §24le) provides in per-

tinent part, as follows:

(a) A local educational agency may receive a

grant under this sub-chapter for any fiscal year only

upon application therefor approved by the appropri-

ate State educational agency, upon its determination

(consistent with such basic criteria as the Commis-

sion may establish)—

(1) that payments under this subchapter will be used

for programs and projects (including the acquisition

6

of equipment, payments to teachers of amounts in ex-

cess of regular salary schedules as a bonus for service

in schools eligible for assistance under this section,

and, where necessary, the construction of school facili-

ties and plans made or to be made for such programs,

projects, and facilities) (A) which are designed to

meet the special educational needs of educationally de-

prived children in school attendance areas having high

concentrations of children from low-income families

and (B) which are of sufficient size, seope, and quality

to give reasonable promise of substantial progress to-

ward meeting those n * * * and nothing herein

shall be deemed to preclude two or more local educa-

tional agencies from entering into agreements, at their

option, for carrying out jointly éperated programs and

projects under this subchapter.

(2) That, to the extent consistent with the number

of educationally deprived children in the school dis-

trict of the local educational agency who are enrolled

in private elementary and secondary schools, such

agency has made provision for including special edu-

cational services and arrangements (such as dual en-

rollment, educational radio and television, and mobile

educational services and equipment) in which such chil-

dren can participate; .. .

The declared policy of Title I is to provide grants of

federal funds to local educational agencies to assist them

in expanding and improving their educational programs by

various means which contribute particularly to meeting the

—

ial educational means of educationally deprived chil-

dren (20 U.S.C. §241a).

Plaintiffs allege that children attending nonpublic sec-

tarian schools in Missouri are being arbitrarily denied, by

the defendants, Title I funds and benefits to which they

are entitled. More particularly, they assert that defen-

dants have refused to provide publicly employed teachers

to perform their educational and teaching functions under

Title I programs on the premises of sectarian schools dur-

ing school hours. In Missouri, Title I funds are paid to the

State Board of Education which, in turn, allots funds to

local School Boards.

Most of the Title I programs and funds in Missouri in-

volve remedial reading, mathematics and languages, which

are all secular subjects. Most of the funds allocated there-

under for public schools are used to pay the salaries of

teachers and teachers’ aides to give instruction in those

secular subjects.

Defendants have refused to approve any applications for

the allocation of Title I funds for the purpose of paying

publicly employed teachers to give instruction in such

subjects in’ sectarian schools during regular school hours.

Defendants assert that for them to do so would violate

the constitutional provisions and decisional law of Missouri;

also, that Title I does not mandate their providing and

assigning publicly employed teachers to sectarian schools

during regular school hours and that if it did, it also would

be unconstitutional under the First Amendment.

Defendants have approved Title I programs and the use

of Title I funds to provide mobile educational services and

e 8s

equipment, vistal aids and educational radio and television

in sectarian schools and teachers for after-school, weekend

and summer school classes on public school premises, which

are available to parochial school pupils.

-

Plaintiffs assert that such programs are not “compara-

ble” to those provided in public schools, particularly in that

they do not provide for the assignment for publicly em-

ployed teachers to parochial schools during regular school

hours to carry out the instruction incidental to such pro-

grams.

Initially, the District Court dismissed Plaintiffs’ action

on procedural grounds and the Court of Appeals reversed

and remanded the case to that Court for trial. Barrera v.

Wheeler, 441 F.2d 795 (8 Cir., i971). Plaintiffs then ap-

plied for a preliminary injunction and in a pretrial order

the District Court stated the issues to be tried and de-

cided (App. p. 37); see, also, Barrera v. Wheeler, 475 F.2d

1338 at 1341 (8th Cir., 1973).

After trial, the District Court, in an unreported opinion

filed June 2, 1972 (Pet. for Cert. p. A 43; App. pp. 7, 39-40),

denied plaintiffs’ prayer for injunctive relief holding (1)

that Title I does not mandate the assignment of teachers

paid by Title I funds to nonpublic schools; (2) that sta-

dents in nonpublic schools can receive their equitable mathe-

matical share of the funds available in after-school or sum-

mer school programs and through visual aids and mobile

equipment; and (3) that there is no evidence that the local

school boards have refused to consult with nonpublic school

authorities in preparing their applications for Title I

funds or that any applications for Title I funds on an

equitable basis for nonpublic school students have been

denied at the local or state level, except those requesting

_

9

publicly salaried teachers in nonpublic schools. The Dis-

trict Court Judge also expressed the view that an interpre-

tation of Title I, which would require the assignment of

publicly employed teachers in parochial schools, “would

raise serious questions as to the constitutionality of Title I”

under the “teaching of the Supreme Court in Lemon v.

Kurtzman, 403 U.S. 602 (1971).”

The United States Court of Appeals for the Eighth Cir-

cenit, in a 2-1 decision [475 F.2d 1338 (1973)] reversed

the District Court on the facts and the law and held,

inter alia, that Title I mandated the assignment of publicly

employed and paid teachers to nonpublic schools during

regular school hours. It remanded the case to the District

Court with instructions to enter an injunctive decree, con-

taining guidelines. (Pet. for Cert. pp. A29-A30).

Dissenting Circuit Judge Stephenson (475 F.2d at 1358)

stated that Title I “clearly only permits and does not man-

date the assignment of public school teachers to private

schools during school hours as clearly evidenced from the

Acts’ Legislative history.” He also stated that if Title I

does mandate the assignment of public school teachers to

private schools, then he shared the District Judge’s “grave

concern that Title I, under such circumstances, could not

withstand the constitutional challenge” and that the “en-

tanglements” fostered by Title I, asso construed, “appear

quite indistinguishable from the excessive entanglements

proscribed by Lemon.”

The injunction and judgment filed by the District Court

on the remand enjoin and require defendants to furnish

publicly employed teachers to teach private school children

during regular school hours on the premises of the private

———ay

10

school attended by those children, if publicly employed

teachers are furnished to public school children during

regular school hours on the premises of the public school

attended by those children. (Pet. for Cert. p. A-45)

Thus, the Constitutional issue has been raisell by the

decision of the Court of Appeals and its interpretation

of the statute.

Summary of Argument

Title I [20 U.S.C. §24le (a)(2)] violates the Establish-

ment Clause of the First Amendment of the Federal Con-

stitution if, as construed by the Court of Appeals, it man-

dates the assignment of public employed teachers to non-

public schools during regular school hours to render teach-

ing services in remedial subjects.

Such a practice would constitute financial aid and support

to religious institutions and religion and would involve the

government in religious activity.

Nonpublic sectarian schools are religious institutions hav-

ing an overall, basic purpose of religious indoctrination and

religion permeates this entire curriculum and plant.

Constitutionally, there is no essential difference between

a public subsidy that supplies teachers and teaching ma-

terials to a sectarian school and one that supplies cash to

such a school for teachers and teaching materials, or ac-

complishes the same result indirectly by other devices.

Nor is there any constitutional difference between fur-

nishing a publicly employed teacher to teach secular sub-

jects in a sectarian school and paying the salaries of sec

tarian school teachers to teach secular subjects there, or

11

between the teaching of “general” secular subjects such

as mathematics, languages and reading and the teaching of

“specialized” secular subjects such as remedial reading,

languages and mathematics.

Title I, as so construed, would violate the Establish-

ment Clause because, at the very least, it would foster an

excessive government entanglement with religion, adminis-

tratively and politically; and also, because, it would not

have a primary effect that neither advances nor inhibits re-

ligion. Moreover, if the real and underlying purpose of this

statute is, as may be, to provide public financial assistance

to sectarian schools by relieving such schools of certain

educational expenses, then it would not have a secular legis-

lative purpose.

Under the prior decisions of the Court and other courts,

Title I, as construed and applied by the Court of Appeals,

would clearly be in violation of the Establishment Clause

of the First Amendment of the Federal Constitution, as well

as in violation of the Missouri Constitution as construed

by its highest Court.

12

ARGUMENT

If, as the majority of the Court of Appeals has held, the

assignment of publicly employed teachers to nonpublic

schools during regular school hours is mandated by

Title I, then that act would be unconstitutional under the

Establishment Clause of the First Amendment of the

United States Constitution.

The Court of Appeals’ majority has held that the assign-

ment of publicly employed teachers to nonpublic schools

during regular school hours is required by Title I. The ma-

jority took note of, but bypassed, the constitutional ques-

tion on the ground that it would be “improper” for it “to

pass on the constitutionality of an abstract program of

remedial teaching services” not properly before it (Barrera

v. Wheeler, 475 F.2d at 13534). Nevertheless, it took occa-

sion to express, by way of dictum, the idea that the prior

court decisions, holding that public funded teaching services

on private school premises is unconstitutional, are “not di-

rectly controlling” because of their suggested distinction be-

tween “general” secular educational subjects and “special-

ized” secular educational subjects and services.

The dissenting Circuit Judge expressed “complete agree-

ment” with the District Judge’s conclusion that “Title I

clearly does not mandate the assignment of teachers paid

by Title I funds to nonpublic schools” and “shared” the

District Judge’s “grave concern” that Title I, as so inter-

preted, “could not withstand the constitutional challenge.”

It is submitted that, as thus interpreted by the Court of

Appeals, Title I clearly violates the First Amendment of

the Federal Constitution, which provides in relevant part:

13

“Congress shall make no law respecting an establish-

ment of religion, or prohibiting the free exercise there-

isa”

The purpose of the Establishment Clause was not simply

to prevent the establishment of a state church or state re-

ligion, but to uproot all kinds of religion-state relationships.

It was intended to create a complete and permanent sepa-

ration of the spheres of religious activity and civil activity

by cat prehensively forbidding every form of public aid or

support; direct or indirect, for religion. Everson v. Board

of Education, 330 U.S. 1, 31-2 (1947) (Rutledge, J., dissent-

ing); McCollum v. Board of Education, 333 U.S. 203, 213,

232 (1948) (concurring opinions) ; McGowan v. Maryland,

366 U.S. 420, 442 (1961) ; Torcaso v. Watkins, 367 U.S. 488,

493.4 (1961) ; Abington School District v. Schempp, 374 U.S.

203, 216-221, 229-30 (1963).

“No law respecting an establishment of religion” was in-

tended to cover any step that could lead to such an estab-

lishment or any practice historically associated with, or in-

cidental to an establishment. Lemon v. Kurtzman, 403 U.S.

602, 612 (1971).

In earlier, basic cases in this area, this Court formulated

and often reiterated the simple forthright test that:

“No tax in any amount, large or small, can be levied

to support any religious activities or institutions, what-

ever they may be called or whatever form they may

adopt to teach or practice religion.”

Everson v. Board of Education, 330 U.S. 1, 15-16 (1947):

McCollum v. Board of Education, 333 U.S. 203, 210 (1948) :

Bie,

14

Zorach v. Clausen, 343 U.S. 306, 314 (1952); Torcaso y.

Watkins, 367 U.S. 488, 493 (1961); McGowan v. Maryland,

366 U.S. 420, 443 (1961); Engel v. Vitale, 370 U.S. 421

(1962); Lemon v. Kurteman, 403 U.S. 602, 640-2 (1971)

(Douglas, J., concurring). In its most’ recent decision

(Committee for Public Education and Religious Liberty v.

Nyquist, 98 8. Ct. 2955; 41 L.W. 5153, 5160), this Court

again quoted that principle, thus recognizing its continued

w“glity. Many States, including Missouri, have constitu-

tions or statutes prohibiting such support, directly or in-

directly. See W. Gelhorn and R. Kent Greenawalt, “The

Sectarian College and the Public Purse,” Appendix B at

188-208 (1970) ; Missouri Constitution, Art. IX, Section 5;

Art. I, Section 7; Art. IX, Section 8 V.AMS.

The highest court in Missouri has held that public funds

may not be used to send public school teachers into pa-

rochial schools to teach speech therapy (Special District for

the Education and Training of Handicapped Children v.

Wheeler, 408 S.W. 2d 60 (1966).

Recently this Court has stated that the main evils which

the Establishment Clause was designed to prevent were

“sponsorship, financial support and involvement of the sov-

ereign in religious activity.” Walz v. Taz Commission, 391

U.S. 664, 668 (1970); Lemon v. Kurteman, 403 U.S. 602,

612 (1971) ; Committee for Public Education and Religious

Liberty v. Nyquist, 93 8. Ct. 2955; 41 L.W. 5153, 5157

(1973).

As Mr. Justice Douglas, concurring, said in the Abing-

ton School District v. Schempp, 374 U.S. 203, 229 (1963):

15

“The most effective way to establish any institution

is to finance it; and this truth is reflected in the appeals

by church groups for public funds to finance their re-

ligious schools.”

Mr. Justice Black, who wrote the Court’s opinion in Ever-

son, supra, certainly did not believe that anything said there

justified the use of public funds to pay the salaries of teach-

ers in sectarian schools, because in his dissenting opinion in

Board of Education v. Allen, 392 U.S. 236 (1968), he pointed

out that tax-raised funds could not constitutionally be used

to support “religious schools” or “to pay their teachers,”

not even “to the extent of one penny”; and he warned that

the effort to have the salaries of religious school teachers

paid with public funds would be forthcoming.

Sectarian or parochial schools of whatever denomina-

tions are religious institutions. They are an integral part

of the religious mission, and probably the most vital part,

of the parish or church that operates them. Their very

purpose is to propagate a religious faith and to indoctrinate

their students in that faith. The secular education which

they provide is incidental to that general purpose. Such

schools involve substantial religious activity and purpose

and religion permeates the entire curriculum and school.

The teachers generally are religiously trained teachers and

members of that religion and the students are generally

selected on the basis of their religious beliefs and church

connections. If that were not so, there would be no point

in having such a school. A few non-adherents may be ad-

mitted to these schools, but the school’s goal would be frus-

trated if it did not adhere to its religious purposes. See,

16

»

generally, Everson v. Board of Education, 330 U.S. 1, 22-24

(1947) (Jackson, J., dissenting); Board of Education v.

Allen, 392 U.S. 236, 262, et seq. (1968) (Douglas, J., dissent-

ing); Lemon v. Kurtzman, 403 U.S. 602, 615-616 and 628,

et seq. (Douglas, J., concurring) ; Committee for Public

Education and Religious Liberty v. Nyquist, 93 S. Ct. 2955;

41 L.W. 5153, 5156 (1973) ; Americans United for Separa-

tion of Church and State v. Oakey, 339 F. Supp. 545, 553

(1972); Wolman v. Essex, 342 F. Supp. 399, 404-5, 419

(1972) ; Public Funds for Public Schools of N. J. v. Mar-

burger, 358 F. Supp. 29, 334 (1973).

Manifestly, parochial schools are religious institutions.

Any kind or-amount of public support, direct or indirect,

for such schools is an aid and support of religion. Obvi-

ously, teachers are absolutely essential to the operation

of a sectarian school and its educational processes and

teachers’ salaries are probably the largest item of expense

of such a school.

There is no difference, constitutionally, between the use

of public funds to furnish publicly employed teachers to

sectarian schools and the use of public funds to pay the

salaries of teachers employed in the sectarian schools. Both

constitute financial support of the sectarian school and of

religion and are unconstitutional. Whether the public sub-

sidy takes the form of supplying teachers and teaching ma-

terials to sectarian schools instead of furnishing cash to

the school for such teachers and materials is constitution-

ally immaterial.

Moreover, there is no essential constitutional difference

between (1) statutes such as those involved in the Lemon

and DiCenso cases, under which public funds are used to

pay the salaries of teachers employed in sectarian schools

—

17

for teaching secular subjects, such as mathematics, modern

foreign languages and physical science; and (2) a statute,

such as that involved here, under which public funds would

be used to pay the salaries of publicly employed teachers

sent into sectarian schools for the teaching of secular sub-

jects such as remedial reading, mathematics and languages.

Nor is there any essential constitutional difference be-

tween the teaching of “general” secular subjects, such as

mathematics, reading, languages and science and the teach-

ing of “specialized” secular subjects such as remedial read-

ing, languages and mathematics, as the Court of Appeals

suggests.

What Mr. Justice Douglas said in his concurring opinion

in the Lemon case, at page 641, is particularly appropriate

here.

Yet, in spite of this long and consistent history there

are those who have the courage to announce that a

State may nonetheless finance the secular part of a

sectarian school’s educational program. * * * A his-

tory class, a literature class, or a science class in a

parochial school is not a separate institute; it is part of

the organic whole which the State subsidizes. The

funds are used in these cases to pay or help pay the sal-

aries of teachers in parochial schools; and the pres-

ence of teachers is critical to the essential purpose of

the parochial school, viz., to advance the religious en-

deavors of the particular church. It matters not that

the teacher receiving taxpayers’ money only teaches

religion a fraction of the time. Nor does it matter that

he or she teaches no religion. The school is an organ-

ism living on one budget. What the taxpayers give for

- salaries of those who teach only the humanities or

ay

18

seience without any trace of proselytizing enables the

school to use all of its own funds for religious training.

* © © And sophisticated attempts to avoid the Constitu-

tion are just as invalid as simple-minded ones.

Under the “cumulative criteria” or “tests” developed by

the Court in its more recent decisions, in order for a statute

to pass muster under the Establishment Clause, it first

“must reflect a clearly secular legislative purpose”; second,

it “must have a primary effect that neither advances nor

inhibits religion”; and third, it “must avoid excessive gov-

ernment entanglement with religion.” Lemon v. Kurtzman,

403 U.S. 602, 612-13; Committee for Public Education and

Religious Liberty v. Nyquist, 93 S. Ct. 2955; 41 L.W. 5153,

5157-8.

Title I, as interpreted by the Court of Appeals, does not

meet one or more of these tests and thus violates the Estab-

lishment Clause. See Lemon v. Kurtzman, supra; Earley

vy. DiCenso, 403 U.S. 602 (1971); Sanders v. Johnson, 403

U.S. 955 (1971); Americans United for Separation of

Church and State v. Oakey, 339 F. Supp. 549 (1972) ; Public .

Funds for Public Schools of N. J. v. Marburger, 358 F.

Supp. 29 (1973) ; State ex rel. Chambers v. School District

No. 10, 155, Mont. 422, 472 P.2d 1013 (1970); Klinger v.

Howlett, —— Ill. —— (Oct. 1973) ; Wolman v. Essex, 342

F. Supp. 399 (1972), aff’d, 409 U.S. 808 (1972) ; Special Dié*

trict for the Education and Training of Handicapped Chil-

dren v. Wheeler, 408 S.W.2d 60 (Sup. Ct. of Mo., en Bane

(1966).

~ The Lemon case involved a Pennsylvania statutory pro

gram which provided financial support to nonpublic ele-

mentary and secondary schools by way of reimbursement

19

for the cost of teachers’ salaries, textbooks and instructional

materials in certain specified subjects—mathematics,

modern or foreign languages, physical science and physical

education. This was effected by the device of authorizing

the State Superintendent of Public Instruction “to pur-

chase” specified “secular educational services” from non-

public schools. The program was limited to the aforesaid

secular subjects and instructional materials and prohibited

reimbursement for any course teaching religion, morals or

a form of worship.

The DiCenso case involved a Rhode Island statute au-

thorizing State educational officials to pay to teachers of

secular subjects in nonpublic elementary schools part of

their salaries, by way of “salary supplements.” The teach-

ers were required to teach only secular subjects, to use only

secular teaching materials and not to teach a course in

religion.

This Court held that both of these statutes violated the

Establishment Clause because they involved “excessive en-

tanglement between government and religion.” In distin-

guishing the Everson and Allen cases, supra, which involved

bus transportation and textbooks, the Court pointed out:

“We cannot, however, refuse here to recognize that

teachers have a substantially different ideological char-

acter from books. In terms of potential for involving

some aspect of faith or morals in secular subjects, a

textbook’s content is ascertainable, but a teacher’s han-

dling of a subject is not.”

Where any teacher is functioning on sectarian school

premises, and in immediate contact with sectarian school

administrators and teachers, there is always a danger that

20

the secular and religious aspects of the instruction will not

be separated. As Mr. Justice Douglas points out in his

concurring opinion in Lemon, at page 635, “Sectarian in-

struction can take place in a course on Shakespeare or in

one in mathematics.” Moreover, it can take place just as

well in the instruction of remedial secular subjects, as in

the instruction of general secular subjects.

In Sanders, et al. v. Johnson, et al., 403 U.S. 955 (1971),

this Court affirmed, per curiam, a decision of a three Judge

District Court [319 F. Supp. 421 (1970)] which held to be

violative of the Establishment Clause a state statute au-

thorizing the State Board of Education to contract with

privately owned nonpublic ele _ ntary and secondary

schools, including parochial schools, for the public purchase

of “secular, educational services” to be supplied to school

children. Such services were defined as “providing instrue-

tion in a secular subject.” The District Court held the stat-

ute to violate the Establishment Clause in that the primary

effect of the statute was one which advances religion and

was not primarily secular in effect and involved an im-

proper degree of government entanglement with religion.

_ In Americans United for Separation of Church and State

¥. Oakey, supra, the Court held unconstitutional under the

Establishment Clause, a Vermont Act which provided that

a school district could provide State-approved, public school

teachers to parochial schools to teach certain secular sub-

jects, more particularly, physical sciences, modern lan-

guages, mathematics and physical education. Teachers

were to remain under the supervision of public school au-

thorities.

- The Court, citing Lemon, DiCexso and Walz, supra, held

such a statute “surely involves excessive entanglement be-

—

21

tween government and religion,” and a potential for church

involvement in the political process” and “for the imper-

missible fostering of religion.” What the Court said there

concerning the Vermont statute is equally applicable to

Title I, as interpreted to mandate the furnishing of pub-

lily employed teachers to parochial schools, to wit:

“The Vermont Act will thrust the state not only directly

into the physical plants of the schools but also into .

their operation and control. As such it surely involves

excessive entanglement between government and re-

ligion.

“Tt is contended that because all the hiring of in-

structors and all the buying of teaching materials for

the statutorily specified secular subjects is arranged

for by the local school districts, there will be but little

entanglement between church and state. The actual me-

chanics of this intrusion by the employees of the school

. districts into the sectarian schools is not spelled out in

the statute. Presumably, the implementation of the

plan is left to the school districts themselves. The po-

tential, however, for involvement of the state, through

the school districts, in religious affairs is not dispelled

by its lack of articulation.

“We have, thus far, concentrated on the potential en-

tanglement resulting from state-sponsored involvement

in religious affairs. The statute also creates a similar

potential for church involvement in the political proc-

ess.

“While our approach on the entanglement issues ,

could dispose of this case, we also point out that in the

22

operation of this statute a potential exists for the im.

permissible fostering of religion. We are not convinced

that the statute as written guarantees that the pa-

rochial school utilization of school district teachers

would not have the primary effect of the advancement

of religion. As was noted in Lemon, the use of teach-

ers—even for so-called secular subjects—on any pro-

gram that utilizes sectarian facilities involves vari-

ables which are not, prior to program operation, readily

ascertainable. The existence of those variables is not

likely to be dispelled by the fact that the secular teach-

ers are not hired by, and are theoretically responsible

to, the public school superintendent. * * ° Once within

the church school, however, the instruction would be-

come subject to pressures which the Court has warned

use would make religious neutrality extremely difficult.

The sectarian mission of the church-based parochial

school cannot be overemphasized. It is unlikely that

such schools carried on under religious auspices would

exist if it were not for that mission. * * * Even with-

out overt attempts to influence the teaching program

of: the secular instructor, the teacher would still be

subject to the subtle but effective pressure of parochial

administrative and religiously oriented parental ap-

proval. Moreover, the atmosphere of religion quite

properly pervades the plant of a parochial school.

Whether he be hired by the district or by the parochial

school, no one can predict how any teacher will act or

react when placed in that atmosphere.”

In Public Funds for Public Schools of New Jersey \.

Marburger, supra, the District Court held to be unconsti-

tutional under the Establishment Clause, a State statute,

—

23

very much like Title I, which authorized the public educa-

tion authorities to make available to nonpublic schools

“suxiliary services,” including remedial instructions in

reading, mathematics, speech and physical education, to be

performed in the nonpublic schools by publicly employed

teachers. In holding that such programs involved an ex-

cessive church-state administrative and political entangle-

ment, the Court said, at page 40:

“The defendants argue that no surveillance would be

required to enforce State limitations in the auxiliary

program because the processes which would be involved

in remedial reading or remedial arithmetic are clearly

more peripheral to the possibility of religious indoctri-

nation than the initial teaching of reading and arith-

metic. Even though this argument is sound, to a de-

gree, a teacher who teaches reading or remedial read-

ing remains a teacher. A teacher’s instruction may

vary in content or emphasis and is not entirely pre-

dictable. A teacher is not a textbook, the contents of

which remain constant, as the Court recognized in

Lemon.

is . ° ao o

“This being so, it would be necessary to continually

review the content of a teacher’s instruction in order

to see that it adheres to the restrictions imposed by the

statute, in that it be confined only to secular and non-

ideological subject matter.

“Moreover, it is clear that the teachers providing

such auxiliary services will be functioning within the

confines and environment of a given religious institu-

tion where a religious atmosphere may be pervasive.

Although the teachers of auxiliary services are not

—_——ay

24

employed by a religious organization and are not di-

rectly subject to the direction and discipline of a reli-

gious authority, they will, nonetheless, be working in

atmospheres dedicated to the rearing of children in a

particular religious faith. Again it would seem that

a constant review of that instruction would be required

in order to determine that the religious atmosphere

has not caused religion to be reflected—even uninten-

tionally—in the instruction provided by such teachers.

Furthermore, the arrangement may provoke some con-

troversy, as noted in Lemon, between the auxiliary

teachers and the religious authority over the precise

meaning and extent of the legislative restraints. See

Lemon v. Kurtzman, supra, 403 U.S. at 619, 91 S. Ct.

2105.”

Those comments are directly applicable here.

In State ex rel. Chambers v. School District No. 10, supra,

the Supreme Court of Montana held violative of the State

and Federal Constitutions, a school board resolution call-

ing for a special tax levy to pay teachers, as full time em-

ployees of the public school district, to teach a standard

course of secular instruction to students of parochial high

school on the premises thereof. The Court, citing decisions

of this Court, pointed out that parochial schools are reli-

gious institutions wherein religious and secular instruction

is intermixed and that “if teachers were to be furnished at

public expense to a parochial school, it would not be pos-

sible to determine where the secular purpose ended and

the sectarian began.”

Klinger v. Howlett, supra, involved several Illinois paro-

chaid statutes enacted June 26, 1972, including one pro-

25

viding auxiliary service grants to parents of nonpublic —

school children. Auxiliary services included a provision

for “remedial and therapeutic programs for educationally

disadvantaged children.” The Illinois Supreme Court held

that provision, as well as others, unconstitutional under

the Establishment Clause.

Wolman v. Essex, supra, involved an Ohio statute under

which public funds could be used both for educational

grants to parents of nonpublic school children and to pro-

vide to pupils attending nonpublic schools, services and

materials including remedial reading and speech programs.

The district court, after reviewing the prior decisions of

this Court, held the statute to be unconstitutional under

the Establishment Clause in that the statute did not have

a valid secular purpose, and that it was doubtful that the

statute neither advanced nor inhibited religion and that

the statute fostered an excessive government entanglement

with religion, administratively and politically.

. See also Special District for the Education and Training

of Handicapped Children v. Wheeler, 408 S.W.2d 60 (Sup.

Ct. of Missouri, En Banc 1966).

Clearly, Title I, as so construed, involves, at the very

least, excessive government entanglement with religion,

administratively and politically, for the reasons discussed

in the above cases, particularly, Lemon, DiCenso, Nyquist,

Oakey and Marburger. Also, as so construed, this statute

has a purpose und primary effect that advances religion,

for the reasons discussed in one or more of those cases.

There is no assurance that the state supported activity now

authorized and mandated under this statute will not be

used for religious indoctrination.

———ay

26

Despite any legislative declaration to the contrary, the

underlying purpose of this statute is to financially assist

sectarian schools by supplying them with publicly paid

teachers to teach remedial secular subjects and thus to

relieve the sectarian schools of the financial burden of

obtaining their own teachers for the purpose of perform.”

ing such teaching services. This, in turn, would release

funds of the sectarian schools for their other educational

purposes designed to carry out the religious purpose of

the schools.

In recent years and since Everson, most of the legisla-

tive acts which have provided public assistance to sectarian

schools have contained legislative declarations that the

statute is for a public secular purpose. Despite the ingeni-

ous devices which are used to disguise the real purpose of

such statutes, the underlying and undeclared purpose is to

provide public aid and support to sectarian schools. The

courts are not bound by such legislative declarations of

policy (see Nyquist, supra). So, here, the court can find

that the real, underlying purpose of this statute, as con-

strued, is to provide financial support to sectarian schools

by the means of supplying them with publicly paid teachers.

27

CONCLUSION

The constitutional issue presented here is whether Title

I funds must be, or even may be, used to furnish publicly

employed teachers to sectarian schools to give instruction

therein in secular subjects, such as remedial reading, math-

ematics and languages. If the Missouri educational authori-

ties do that, they will violate the State Constitution and

decisional law of that State. They will also violate the

First Amendment of the Federal Constitution.

‘This case simply involves one more ingenious plan for

channeling state aid to sectarian schools. It requires no

prophet to foresee that on the argument used to support

Title I, as so interpreted, other arguments could be made

for the use of public funds to supply publicly employed

school teachers on the premises of sectarian schools to

teach every secular subject in the curriculum.

Despite Madison’s wafning (“Memorial and Remon-

strance”, Appendix to dissenting opinion of Rutledge, J.

in Everson v. Board of Education 330 U.S. 1, 63, 65) the

simple, forthright Constitutional principles embodied in

the Religious Clauses of the First Amendment are becom-

ing entangled in corrosive precedents, and citizens are being

compelled through taxation to support religious schools,

not simply to the extent of “three pence”, but to the extent

of many millions of dollars. This is being accomplished

by a seemingly infinite variety of ingenious and sophisti-

cated devices designed to circumvent the constitutional pro-

hibitions and to make it appear that this support is not

for the benefit of religious schools, but only for the benefit

of pupils or their parents or the public welfare. Cf. “Edu-

28

cation in a Democracy: Financial Support of Priva

Public and Parochial Schools,” pp. 17-28, Human Righ

Volume Three, Number One (Summer, 1973) (Journal:

the Section of Individual Rights and Responsibilities ,

American Bar Association). 3

It is respectfully submitted that the judgment of {

Court of Appeals herein should be reversed and that {

ease should be remanded to the District Court for a @

missal of the complaint.

Respectfully submitted,

Kennetuo W. GreENAWALT

2 Broadway

New York, N. Y. 10004

Me.vin L. WuLF 4

American Civil Liberties Uni

22 East 40th Street 7

New York, N. Y. 10016

Water Wricut

Americans United for Separati

of Church and State

8120 Fenton Street

Silver Spring, Maryland 20910

Attorneys for Amici Curiae

January 1974