# Motion Amicus Curiae — Wheeler v. Barrera > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0305%3A13 ## Record - **Collection:** Supreme Court brief - **Document type:** Motion Amicus Curiae - **Published:** January 1, 1975 - **Citation:** 417 U.S. 402 ## Text * 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0305%3A13. Public record. Not legal advice.