*1 et al. v. FELTON AGUILAR et al. July 1, 1985* Argued December 1984 Decided 84-237.
No. 84-238, Department Secretary, United States *Together with No. al., 84-239, the Board v. Felton et and No. Chancellor Education al., appeal et also on from the New York v. Felton Education of court. same *2 Brennan, J., opinion delivered the Court, Marshall, in which Blackmun, Powell, Stevens, JJ., joined. and Powell, J., filed a con- curring opinion, post, p. Burger, J., 414. post, p. 419, White, C. J., ante, 400, p. Rehnquist, J., and post, p. 420, filed dissenting opinions. O’Connor, J., filed dissenting opinion, Rehnquist, J., joined which III, as II post, p. to Parts and 421. argued appellants
Solicitor General Lee the cause for in all appellant cases. With him on the briefs for in No. 84-238 Acting Attorney were Assistant Deputy Willard, General Anthony Solicitor Steinmeyer, Bator, General J. and Mi- Jay Singer. chael appel- Charles H. Wilson filed a brief for lant in No. 84-237. Schwarz, Frederick A. Jr., O. Leonard Stephen Koerner, appellant and J. McGrath filed briefs for No. 84-239.
Stanley argued appel- Getter the cause and filed briefs for lees all † cases.
† Briefs of amici curiae urging reversal were filed for the Council for American by Private Edúcation et McGlynn Jr.; al. Edward Gaffney, for League Religious the Catholic for and Rights by Civil Steven Frederick McDowell; for Citizens for Educational by Rice; Freedom Charles E. for the National Jewish Commission on Law and by Public Affairs Nathan Lewin, Rapps, Chazin; Dennis and Daniel D. for Rights, Inc., Parents by Donnelly; John J. and for the United States Catholic by Conference R. Caron Mark Chopko. and E. Wilfred Briefs of urging amici curiae affirmance were filed for the American Civil by Neubome, Sims, Liberties Union et al. Burt Charles Marc and Stem; D. Separation Americans United for et al. Church State by Boothby; Lee and for the Leaque Anti-Defamation of B’nai B’rith Finger, Meyer Justin J. Eisenberg, Jeffrey Sinensky. P. opinion of delivered the the Court. Brennan Justice pay York federal funds to the sala- The of New uses public employees who teach in ries schools. Rapids companion to School District Grand this case p. practice this Ball, ante, we whether vio- determine Clause of the First Amendment. lates the Establishment
hH <C originally case, at issue in this enacted as Elementary Secondary Act Education Title I of Secretary of Education to distribute authorizes *3 to local educational institutions to meet financial assistance educationally deprived from the needs of children low-income appropriated The are in families. funds to be accord by agencies programs proposed ance with local educational by agencies. approved 20 S. and state educational U. C. 1 § I, 2153, seq. at 20 U. 2701 et Section 92 Stat. was codified S. C. Title provided: 2701 special of children of low-income recognition
“In of the educational needs have on of low-income families impact families and the concentrations support adequate educational ability agencies the of local to educational United hereby policy it the programs, Congress the declares to be the of (as parts following in the provide financial assistance set forth States to con- agencies serving with subchapter) this areas of to local educational improve expand and of to centrations children from low-income families pro- (including preschool programs their educational various means special educational particularly meeting the grams) which contribute educationally deprived children.” needs of I by Chapter 1, 1982, superseded Title I was Effective October 1981, 95 Stat. 20 Improvement Act of Education Consolidation and (current analogue Chapter I § seq. § et 20 U. C. 3801 U. S. 3801 See S. C. pri- children 2701). participation provisions concerning § The in Title to those I. virtually I identical Chapter under vate schools (former 20 U. S. with C. provision) §2740 Title Compare 20 U. S. C. convenience, we will (current the sake provision). For Chapter § refer to the as continue usage parties and adopt the “Title I.” 3805(a).2
§ “To the extent consistent with the number of educationally deprived in the school district of children agency private are enrolled local educational who elementary secondary agency such shall make schools, provisions including special educational services and for arrangements participate.” such can ... which children 3806(a).3 § proposed programs must meet the fol also statutory lowing requirements: children involved § educationally deprived, 3804(a),4 program must the chil comprising high must reside areas dren concentration 3805(b),5 § sup programs families, low-income and the must provides: The statute “A agency grant subchapter local educational receive a under this any year applica- if agency fiscal it has on file with the State educational projects tion which describes the to be conducted with such period years, application assistance for a of not more than three such approved by agency.” has been the State educational (former § I analogue). See also 20 U. S. C. 2731 Barrera, question In Wheeler v. we addressed employed teach provision requires assignment publicly whether this provide during regular instruction schools. ers to hours private services We held that Title mandated that school students receive to, to, by public comparable but not identical the Title I services received Id., permit, Therefore, would school students. at 420-421. the statute parochial schools. require, provided not that on-site services be in the but interpretation, we statutory reaching this conclusion as a matter of *4 Clause explicitly Establishment noted that “we intimate no view as to the Id., provides thus no any particular program.” at 426. effect of Wheeler today. us authority constitutionality for the of the before provides: 4 Thestatute payments under this agency and local educational shall use
“Each State acquisition equip- (including the subehapter programs projects and facilities) which are and, necessary, of school where the construction ment educationally deprived needs of designed special to meet the educational children.” provides: The statute (a) of this section ap- shall be application in subsection
“The described described— projects proved programs if . . . the and “(1)(A) agency having areas of such high- in attendance are conducted . . . .” children est concentration of low-income plement, supplant, programs not that would exist absent 3807(b).6 § funding under Title I. provided
Since
of New York has
instruc-
by
tional services funded
Title to
school students
premises
eligi-
on the
schools. Of those students
pri-
ble to receive funds in 1981-1982,13.2%were
enrolled
group,
vate schools. Of that
84% were enrolled in schools
affiliated with the Roman Catholic Archdiocese of New York
Brooklyn
and the Diocese of
day
and 8% were enrolled in Hebrew
respect
religious atmosphere
schools. With
to the
Appeals
these
schools,
Court of
concluded that “the
picture
emerges
system
is of a
in which
consid-
play key
erations
role
the selection of students and teach-
purpose
ers, and which has as its substantial
the inculcation
(CA2 1984).
values.”
makes teacher and the instructors provides: The statute may “A local agency educational use funds received under subehapter this only and, supplement so as to practical, to the extent increase the level of would, funds that funds, the absence of such Federal be made available from non-Federal pupils sources for the education of participating pro- grams projects subehapter, assisted under this no case such supplant funds be so used as to such funds from such non-Federal sources. compliance order to demonstrate with this subsection a local education agency required provide shall not be services subehapter under this out- regular side the program.” classroom or school *5 by personnel, attempt pay vised field who to at least one per supervisors, unannounced visit month. The field in report program pay turn, to coordinators, who also occasional supervisory unannounced I visits to monitor in classes professionals the schools. The involved the program are directed to avoid involvement with private activities that are conducted within the to bar materials their All classrooms. material equipment used the funded under Title are by supplied only pro- the Government and are used in those grams. professional personnel solely responsible for Additionally, professionals the selection of the students. the private personnel are informed that contact with kept Finally, should be ato minimum. the administrators required the schools are to clear the classrooms by personnel religious symbols. used the of all
B taxpayers six commenced this action Dis- alleging trict Court for the Eastern District of York, New that the Title I administered of New taxpayers, York violates the Establishment Clause. These appellees today’s sought enjoin case, the further dis- programs involving tribution of funds instruction on the premises Initially schools. the case was for held outcome National Coalition Public Education and for 1980) (SDNY Religious Liberty Supp. Harris, F. (PEARL), challenge which involved identical to the Title program. When District Court PEARL affirmed constitutionality program, ibid., of the Title and this appeal jurisdiction, Court dismissed the want S.U. challenge present appellees was re- granted appellants’ newed. The District Court motion for summary judgment upon evidentiary based record devel- oped in PEARL.
408 panel Appeals the
A the Court for Second unanimous holding reversed, that Circuit interpreted
“[t]he
Clause, as it has
Establishment
been
by
Supreme
in Public Funds
Public
the
Court
for
(D.
1973),
Marburger,
Supp.
F.
29
N.
Schools v.
358
J.
(1974);
Pittenger,
. .
v.
mem., 417 U.
961 .
Meek
S.
aff’d
(1975)(particularly
pp. 367-72);
V,
Part
S. 349 . . .
421 U.
Walter,
v.
II Rapids p. Ball, ante, 373, In District v. School Grand today held unconstitutional under the Estab- the Court has programs op- and enhancement lishment two remedial Clause by Rapids District, Public School which erated the Grand plan adopted by Appeals held that the administered Court of 48, City York the Establishment Clause. P. 2d of New violates (1984). ruling pursuant were to 28 C. Appeals from this taken U. S. 1252, however, only § taken an appeal § 1252. An under from Congress judgment final that has held an Act of uncon interlocutory or (“i. e., section, terms, infringed own applied its stitutional as case”) particular of that or as freedoms the circumstances constitutional Ministry, Inc., Echoes v. Christian National a whole. States United (1972). 561, appealed from ruling Because is not such U. S. 563-565 jurisdiction. Ibid. judgment, appeals must be dismissed want cases, opinion comparable we shall continue in this to refer we As have appellees in to minimize parties appellants and order confusion. to the as Court, 90, n. 4 See, g., Superior e. Kulko California (1978). provided private were classes school children expense in located in classrooms and leased from the local private programs challenged schools. The New York very in this case are similar to the we examined publicly In Ball. both cases, funded instructors teach composed exclusively private classes students private buildings. overwhelming cases, both participating private religiously number schools are *7 publicly programs pro- In cases, affiliated. both the funded only professional personnel, vide not but also all materials necessary supplies operation programs. for the Finally, they in the instructors both are cases told that are employees under the sole control of the system.
Appellants attempt distinguish ground to this case on the City Rapids York, that the of New unlike the Grand Public adopted system monitoring District, School gious has publicly a the reli- religious content of funded Title classes in the supervision At in best, schools. the this case in would assist preventing being intentionally the Title from used, unwittingly, religious or to inculcate the beliefs the sur- rounding parochial appellants’ argument But school. fails in any supervisory system by event, because the established inevitably the New York results the excessive entanglement of church and state, Establishment Clause by concern distinct that from addressed the effects doctrine. Even where state to aid institutions not does have primary advancing religion, provision the effect of the of such owing aid nonetheless violate the Establishment Clause to the nature of church the interaction of state the administration of that aid. principle closely that the state should not become too
entangled with the church the administration of assistance is rooted two concerns. When state en- becomes given religious meshed with a denomination matters of significance, freedom belief of who those are not adherents that denomination when suffers, even underlying largely purpose governmental the involvement even the adherents of the freedom of addition, secular. by governmental intrusion is limited the denomination upon “[T]he First rests Amendment into sacred matters. government religion premise can best work that both lofty free if each is left from other their aims to achieve respective sphere.” Edu- v. Board McCollum within its (1948). cation, (1971), the Kurtzman, 403 U. Court In Lemon v. S. necessary supervision ensure teachers held that the messages conveying not schools were entanglement constitute excessive their students would of church and state: continuing comprehensive, discriminating, and state
“A inevitably required be to ensure that will surveillance obeyed Amendment and the First restrictions these respected. a book, teacher cannot otherwise Unlike inspected in- determine the extent and so as to once subjective accept- personal beliefs and tent of his or her imposed the First Amendment. the limitations ance of *8 prophylactic will involve excessive and contacts These ” enduring entanglement Id., state and church. between at 619. (1975), Pittenger,
Similarly, in- 421 S. 349 we in Meek v. U. guidance, alia, inter offered, validated a state therapeutic performed testing, services and and remedial premises public employees the schools. on the though Lemon, observed that Id., As we at 352-353. conceivably supervision might system comprehensive a advancing having primary prevent effect of teachers from inevitably religion, system lead to an uncon- a would such entanglement church and between administrative stitutional state. required prophylactic ensure that to
“The
contacts
strictly nonideological
play
role, the
Court
teachers
necessarily give
[in
to
rise
a constitution
Lemon],
held
ally
degree
entanglement
intolerable
between church
entangle
Id., at
The
and state.
619.
same excessive
required
Pennsylvania
‘certain,’
ment would be
for
to be
personnel
be,
as it must
that . . .
do not advance the
mission of the church-related schools which
they serve. Public Funds
Public Schools v. Mar
for
burger,
Supp. 29,
aff’d,
358 F.
The critical present First, in this case. as are thus Lemon and Meek provided pervasively in a sectarian the aid is above, noted provided in the assistance is Second, because environment. required ongoing inspection is to ensure teachers, form of supra, message. Compare Lemon, the absence of supra, supra, Roemer, at 765. Tilton, 688, at with City’s scope Title of New York and duration short, from school differs Appellants suggest degree that the of sectarianism Friendly, Judge bearing analysis. As little on our to school. This has degree of below, may be that writing court noted: “It well for the with neighborhoods, in, example, black Catholic schools sectarianism teachers, relatively pupils and proportions of non-Catholic considerable relatively high. Yet token, schools it be low; by the same other rest on means or not does the Establishment Clause . . . enforcement of create the risks schools any number of the significant If medians. incredible, simply and the Meek, applies. Meek It would described City’s parochial all, New York all, aver, or almost do not affidavits ‘the mission that . abandoned receiving Title I aid have . . 2d, (quoting F. at 70 existence.’” only reason for the schools’ is the Brennan, J.). (1971) (opinion of Kurtzman, 602, 650 Lemon v. *10 program require permanent pervasive would a state presence receiving in the sectarian schools aid. pervasive monitoring by public
This authorities infringes precisely sectarian schools those Establishment prohibition Clause values at the root of the of excessive entanglement. Agents city inspect of the must visit and religious regularly, pres- alert for the subtle or overt religious ence of matter in classes. Cf. Lemon v. (“What appear Kurtzman, S., 403 U. at 619 would to some to good citizenship might be essential to well for others border religion”). on or constitute instruction in In addition, the obey agents they school must these same when make determinations as to what is and what is not a “re- ligious symbol” and thus off limits a Title classroom. primary purpose In short, the school, which has as preservation particular religion the advancement and of a ongoing presence personnel must endure the of state whose primary purpose is to monitor teachers and students attempt guard against religious thought. the infiltration of cooperation required
The administrative that is to maintain program entangles the educational at issue here church and way infringes state in still another that interests at the heart personnel of the Establishment Clause. Administrative systems together must work resolving assign- matters related to schedules, classroom problems implementation pro- ments, that arise gram, requests for services, additional and the dissemination regarding program. of information Furthermore, “frequent regular necessitates contacts between (or professionals), and the remedial which teachers other problems reports needs, each side on individual student 2d, F. at 65. encountered, and results achieved.” 739 underlying long recognized the Establish- We have pos- objective prevent, as ment far as Clause is “the ... pre- state] [church or into the sible, the intrusion of either supra, Kurtzman, cincts of the other.” Lemon v. 614. Education, See also McCollum v. Board 333 U. S., at Although “[separation 212. in this context cannot mean of all contact,” Comm’n, absence Walz v. Tax 397 U. S. *11 monitoring 676 the detailed and close administrative required City’s pro- contact to maintain New York gram only produce continuing day-to-day can “a kind of rela- tionship policy neutrality which the of seeks to minimize.” judgments by Id., at 674. The numerous that must be made agents city concern matters that be subtle and yet may deep religious significance controversial, be of controlling government agents denominations. As must judgments, dangers political make these divisiveness along religious “[t]he lines increase. At the time, same picture inspectors prowling of state the halls of auditing surely schools and classroom instruction raises more imagined specter governmental than ‘secularization of supra, (opinion a creed.’” Lemon v. Kurtzman, at 650 J.). Brennan,
Ill Despite the well-intentioned efforts taken constitutionally York, of New remains flawed owing receiving to the nature of aid, to the institution principles they implicate— aid, and to the constitutional that promote that neither the State nor Federal Government shall particular generally through or hinder a faith or faith the ad- through entanglement vancement of benefits or the excessive of church and state in the administration of those benefits.
Affirmed. dissenting opinion [For of Justice White, ante, see p. 400.] Powell,
Justice concurring. opinions judgments today I concur in the Court’s Rapids this case and in School District Ball, Grand v. p. holding ante, 373, that the aid to schoolsinvolved in those cases violates the Establishment Clause of the First
415 emphasize why Amendment. write to additional reasons precedents require of this Court us to invalidate these two concededly educational “done have so much good any, if little, detectable harm.” F. 2d 48, (CA2 1984). previously recognized impor- The Court has tant role of schools: quite apart pur- schools,
“‘Parochial from their sectarian pose, provided have an educational alternative for mil- young they lions Americans; often afford wholesome competition with our schools; and some States they substantially relieve the tax burden incident to the operation Allen, schools.’” Mueller v. (1983) (quoting 388, U. S. 401-402 Walter, Wolman (1977) concurring U. S. J., (Powell, *12 part, concurring judgment part, dissenting in in in part)). legitimate facilitating
“The has, State a in moreover, interest highest quality education of the for all children within its parents boundaries, whatever school their have chosen for Regrettably, S., them.” 433 at U. 262. however, the Title Rapids programs I scrutiny and Grand do not survive the required by our Establishment Clause cases. agree
I
in
with the Court
this
that
case the Establishment
great
gov-
Clause is violated
is
because there
too
a risk of
entanglement
religious
ernment
in the
of
administration
the
p.
the same is
in
schools;
Ball, ante,
true
As
373.
beneficial
program appears
accomplishing
as
I
the Title
to be in
its
goal
supplementing
deprived
secular
of
the education of
participation
public
children,
structure,
its elaborate
the
of
government
required
teachers,
school
and the
surveillance
purposes
to ensure that
funds are used for secular
inevitably present
entanglement.
a serious risk of excessive
“‘[t]he
Our cases have noted that
State must
certain,
be
given
Religion
the
Clauses, that subsidized teachers do not
religion.’”
Pittenger,
inculcate
Meek v.
The Title at issue this case also would be prong adopted invalid under the “effects” of the test * supra. Kurtzman, Lemon v. As has been discussed thor oughly respect in Ball, at ante, 392-397, with the to Grand Rapids programs, type provided aid in New York subsidy paro the Title I to a amounts state of the by relieving duty provide chial those schools supplemental remedial education their re children quire. type is This not the of “indirect and incidental effect [the] suggested beneficial to institutions” that we Nyquist scrutiny. would survive Establishment Clause part by directly assuming S., U. at 775. Rather, function, schools’education the effect “inevitably aid ... to subsidize and advance the [the] mission schools,” id., sectarian at 779-780, even though program provides only subjects secular will
*Nothing say suggesting that I as here should be construed that a court inevitably the Lemon test have prongs three must determine whether all g., See, Religious e. Committee Public Education & been violated. (1973). Liberty Nyquist, S. in- U. discuss an additional firmity only issue in emphasize why these cases even program may way a beneficial invalid because of it is structured. *14 418 Pittenger, taught. As in Meek v. U. S. 349 provide goes
the secular education these schools “‘hand mission that is the reason for hand’” with (quoting S., existence. U. at 366 Lemon v. schools’ J.)). (opinion at 657 Be Kurtzman, S., 403 U. Brennan, predominantly religious schools, cause of the nature of the “inescap provided program the Title I the substantial aid ably in the direct and substantial advancement of reli results gious activity.” Pittenger, supra, Meek v. at 366. governments recognize the difficult dilemma which placed by entangle- the interaction of the “effects” and prongs require gov- ment of the Lemon test. Our decisions extending parochial aid to schools to tread an ernments extremely being “princi-
narrow line between certain that the pal primary religion, effect” of the aid is not to advance or supra, avoiding Lemon Kurtzman, v. and excessive entanglement. Nonetheless, the Court has never foreclosed types parochial possibility that some of aid to could be valid under the Establishment Clause. Mueller v. upheld 463 U. at 393. Our cases have evenhanded Allen, S., public secular assistance to both school children ibid, (tax g., E. some areas. deductions for educational (1968) expenses); Allen, Board Education v. 392 U. S. textbooks); (provision of secular Everson Board Edu- (1947) (reimbursements cation, for bus fare to school). opinion precluding I do not read the Court’s as types these of indirect aid to In the schools. cases equally cited, the assistance made funds available nonpublic entanglement. schools without program, defect in the Title I as constitutional indicated provides subsidy a above, is that it direct financial to be significant part by public administered in school teachers resulting within both the advancement schools— religion entanglement. example, If, of Congress and forbidden
could fashion of evenhanded financial private assistance to both schools that could *15 governmental supervision without administered, private prevent so as to schools, the diversion of the aid from purposes, presented secular we would be with a different question. Court; join opinions judgments
Chief Justice Burger,
dissenting.
guise
protecting
Under
Americans from the evils of
century
an Established Church such as those of the 18th
today’s
deny
earlier times,
decision will
countless schoolchil-
desperately
teaching
dren
needed remedial
services funded
under Title I. The
at issue covers remedial read-
ing, reading
English
skills, remedial
as a
mathematics,
sec-
language,
needing special help
ond
and assistance for children
learning process.
reading” portion
in the
The “remedial
program,
example,
this
reaches children who suffer from
dyslexia,
diagnose
a disease known to be difficult to
Many
spe-
treat.
of these children now will not receive the
training they
simply
parents
need,
cial
because their
desire
they
religiously
attend
affiliated schools.
disconcerting
today
What is
about the result reached
by
in the face of
human
that,
decision,
cost entailed
this
attempt
identify any
the Court does not even
religious liberty
to
threat to
by
posed
operation
I.
I share
of Title
Justice White’s concern that the Court’s obsession with
Kurtzman,
the criteria identified in Lemon v.
“The First Amendment . . . does in not that respects separation and all there shall be a of Church religion and State. . . . Otherwise the state and would suspicious, be aliens to each hostile, and even other — unfriendly.” today The Court fails to demonstrate how the interaction program presents any occasioned at issue to the threat underlying values the Establishment Clause. join striking
I cannot down a in the words that, Appeals, good of the Court of little, “has done so much if 1984). (CA2 any, detectable harm.” 739 48, F. 2d denying religious notion that these services to students protect schools is a neutral act to us from an Established history. support logic, experience, Church has no or showing neutrality Rather than of, boasts it the Court nothing religion hostility exhibits less than and the toward church-sponsored children who attend schools.
Justice Rehnquist, dissenting. my dissenting opinion
I dissent for the reasons stated (1985). 38, Wallace v. this case Jaffree, 472 U. S. paradox advantage the Court takes of the “Catch-22” of its supra, own at 109-110 creation, Wallace, J., see (Rehnquist, dissenting), whereby supervised aid must be to ensure no entanglement supervision but the itself is held to cause an entanglement. today The Court strikes down nondiscrimi- natory educationally deprived nonsectarian aid to children from low-income families. The Clause does Establishment prohibit sorely not such needed have indeed assistance; we prompted traveled far afield from the concerns which rely adoption gossamer of the Amendment First when we on obviously abstractions to invalidate law which meets entirely secular need. would reverse. joins with whom Justice Rehnquist O’Connor,
Justice dissenting. II III, as to Parts Today holding Ap- affirms the Court Court of peals that school teachers can offer remedial instruc- disadvantaged tion to students who attend “only [is] if such instruction . . . afforded at a neutral site premises off the school.” 739 F. 2d (CA2 1984). holding theory, on the enunciated This rests opinion Pittenger, 421 Part of the Court’s in Meek v. U. S. V foot 349, 367-373 school teachers who set premises likely bring religion into on *17 supervision necessary prevent classes, their and that the to unduly entangle religious teaching state. church and would theory if in it cannot abstract, Even this were valid the validly applied City’s 19-year-old I Title to New York degree greatly exaggerates program. of The the Court necessary prevent public supervision from teachers to inculcating religion, thereby the flaws of and demonstrates benign cooperation church and a that condemns between test Congress’ uphold remedial to afford I efforts state. would public disadvantaged in both instruction to schoolchildren parochial and schools.
I (1985), 38 and Thorn- S. 472 U. Jaffree, As Wallace v. the Court this 703 Caldor, Inc., ton v. three-part litigation Establishment Clause adheres to the 422 v. Kurtzman,
test enunciated Lemon 403 S. 602, U. 612- (1971). test, To survive the Lemon a statute must have legislative purpose primary principal both a secular or religion. that effect neither advances nor inhibits Under progeny, Lemon and its direct state aid to schools purpose furthering that has the or of effect mis- agree sion the schools is I unconstitutional. with that principle. According Court, to the York however, the New City any improper Title I is defective not because of purpose part effect, or but rather because it fails the third program allegedly of the Lemon test: the Title I ex- fosters government entanglement religion. disagree cessive with analysis entanglement, question with the Court’s utility entanglement separate aas Establishment Clause discussing entanglement, standard most cases. Before explore purpose however, it is to worthwhile and effect of program greater depth the New York Title than majority opinion. does purpose provide special I is educational disadvantaged
assistance to children who would not other- Congress recognized poor wise receive it. academic performance by disadvantaged part cycle children is (1965). poverty. Rep. Cong., 146, S. No. 89th Sess., 1st Congress sought cycle by providing to break the classes reading, English in remedial mathematics, to disad- vantaged children as as well schools, enjoy monopoly no on education in low-income (1974). Barrera, areas. Wheeler v. 402, U. S. 405-406 3806(a). §§2740(a), Congress permitted See U. S. C. by public remedial instruction school teachers on premises only normally pro- if such instruction is “not nonpublic particu- vided school” and would “contribute larly meeting special educationally educational needs of deprived Rep. supra, children.” S. No. at 12. See *18 (1984) §200.73 (Department regulations CFR of Education implementing precluding parochial Title I and instruction on necessary except in- premises and where such where
school school). by normally provided the not struction is legislative reviewing of the statute and its the text After history, I serves a concluded that Title District Court regardless aiding needy purpose children of where secular App. they 84-238, No. to Juris. Statement attend school. findings incorporating in Na- p. the District Court 56a, Religious Liberty Public Education tional Coalition for (SDNY 1980) (PEARL). Supp. Harris, 489 F. v. finding, dispute Appeals no this did not The Court of purpose party of the stat- contends that in this Court City program I is to advance Title of the New York ute or religion. Indeed, the record demonstrates or endorse City public Title classes school teachers offer York New solely premises alter- schools because on disadvantaged parochial school reach the native means to school students as instruction students —such during regular after or school, either at the nearest — supra, at 1255. PEARL, unsuccessful. hours were City acknowledged, Appeals York New As the Court paro- [Title reasonably regarded on instruction have “could way carry premises] out the most effective as chial school purposes at 49. Whether one 2d, Act.” 739 F. of the implementation, or to its the face of the statute looks to undeniably by legitimate program animated is purpose. secular effect of the New York
The Court’s discussion analysis perfunctory than its even more Title I is today opinion purpose. program’s School The Court’s p. Rapids Ball, ante, 373, which strikes District Grand very Rapids that the Court asserts scheme a Grand down ways City program, three identifies York to the New similar may premises on instruction which religion. advancing impermissible First, effect of have the pervasively “state-paid sectar- influenced instructors, they work, in which ian nature of the *19 overtly particular subtly indoctrinate the students in reli- or public expense.” “state-provided gious in- Second, at tenets buildings convey in the school threatens to struction support religion message of state to students and to the a public.” general in effect Third, “the subsidize by taking functions of the schools over teaching portion responsibility for secu- of their a substantial addressing subjects.” Ante, at 397. While the effect of lar length, Rapids program at such the Court over- the Grand City. I of Title in New York looks the effect deeply in need not delve too the record to understand One why I not belabor the effect of the Title the Court does why explaining on-premises program. The abstract theories possibly religion might in advance dissolve instruction City. experience in New York As the District Court face of in 1980: found providing I Title services
“New York has been years. nonpublic for fourteen The evidence background presented in this action includes: extensive in-depth description on Title of New I; information City’s program; I a detailed review of Title rules York they ways regulations enforced; and the which are testimony of federal officials, and the and affidavits administrators, Title teachers officers, state supervisors, parents receiving of children Title the result services. The evidence establishes City’s in other cases has not materialized feared ‘religious program. presumption —that by providing advanced educational serv- mission’will be premises supported by parochial not ices on —is supra, at 1265. PEARL, facts of this case.” years single in 19 there has never been a incident Indeed, “subtly overtly” attempted a Title I instructor or which particular religious tenets at the students “indoctrinate Rapids, public expense.” ante, 397. Grand suggests plausible explanation Common sense for this City’s public unblemished record. York New Title I instruc professional tors are can educators who and do followinstruc religion They tions not to inculcate their classes. are un likely to be influenced the sectarian nature of the they only they carefully teach, schoolswhere not because *20 supervised by public officials, but also because the vast ma jority them visit several different each of schools week and religion parochial are not of the same as their students.* In light ample objective imple record, of the observer of the program City mentation of the Title I in New York would hardly endorsing participating view it as the tenets of the contrary, parochial perceived schools. To the the actual and program precisely by effect the is of the effect intended Con gress: impoverished being helped schoolchildren are to over learning improving come their deficits, scores, test and re ceiving significant struggle boost their to obtain both a thorough opportunities education and the that flow from it. only type impermissible arguably
The
of
effect that
could
Grand,
carry
Rapids
litigation,
over from the
decision to this
subsidizing
then, is the effect of
“the
functions of
by
parochial
taking
portion
over a substantial
responsibility
teaching
subjects.”
their
secular
Ibid.
light
statutory
tenuous, however,
That effect is
of the
di
only
provide
I
rective that Title funds
to
be used
serv
participating
ices that otherwise would not be available to the
3807(b).
§
Secretary
students.
U. S. C.
of Educa
vigorously
requirement
tion has
enforced the
that Title I
supplement
supplant
funds
rather than
the services of local
agencies.
Kentucky Dept. Ed.,
education
Bennett v.
See
(1985);
Jersey,
*It is that 78% of Title instructors who teach three-quarters schools visit more than one school each week. Almost any they the instructors do not share the affiliation of school teach App. in. 49. classes Title remedial if to assume
Even we were duplicated City may instruc- to some extent have York New the absence parochial have offered schools would tion type of effect of this third delineation the Court’s I, Title seriously by proscribed Clause would Establishment not barred decisions have Clause Establishment flawed. Our rather children, but remedial assistance premises school. on assistance remedial (1977),the 244-248 Walter, Wolman Under today prohibited would the Court classes York New scrutiny they if had Clause Establishment have survived pri- property setting off in a neutral offered been why a remedial to understand Yet it is difficult school. vate reading any premises offered on class pa- offerings likely supplant the secular course more portable in a class- class offered the same school than rochial wrongly Wolman was the school. Unless next door to room cannot lie in the the defect decided, *21 offerings. supplant course secular that it will risk I—I I—I improper pur- any Recognizing claim of an of the weakness entirely today on the entan- pose relies the Court effect, or prong York glement the New Lemon to invalidate of pres- program. that the occasional holds The Court public peripatetic on school teachers school of ence entanglement and state grounds of church threatens undue (1) per- in a is afforded remedial instruction because (2) ongoing supervision is vasively environment; sectarian public do not at- required school teachers that the to assure (3) personnel religion; tempt the administrative to inculcate systems public to- must work school and scheduling problems'; resolving gether administrative (4) likely political divisive- to result is the instruction ante, propriety at Ante, 412-414; aid. of direct ness over the J.). (concurring opinion 415-416 at Powell, analysis entanglement, acknowledge, sup finds This precedents. port this Meek v. Pit some of Court’s tenger, the Court asserted that it could not S., U. professionalism rely good faith and of the secular “on the functioning in church-related schools teachers and counselors strictly nonideological posture is main to ensure that a a teacher,” tained.” Because “a teacher remains Court there remains a risk that teachers will intertwine stated, continuing with secular instruction. The doctrine necessary prevent occurring this from state surveillance entanglement produce undue of church and state. would opinion in Meek further as Id., at 370-372. Court’s premises public parochial school serted that instruction on political conflict over the creates a serious risk of divisive religion. analysis entangle Ibid. Meek’s issue of aid reaffirmed Wolman two Terms later. ment was appropriate I would accord these decisions the deference stare decisis if I discern commanded the doctrine of could analysis. experience logical support But has dem- for their analysis opinion Part V of the Meek onstrated that thoughtful decided, At the time Meek was dissents flawed. pointed any support for the notion out the absence of record attempt inculcate reli- school teachers would to. occupied parochial gion simply they temporarily because produce instruction would classroom, or that such J.); (opinion political Id., C. divisiveness. at 386 Burger, J.). Experience (opinion has at 387 id., Rehnquist, dissenting arguments opin- given greater force to the intuitively obvious that a dedicated in Meek. It is not ions disobey tend to teacher will instructions *22 merely public expense proselytizing students at commence parochial is within a school. Meek is because the classroom reading asserting “re- of remedial correct in that a teacher surely significant the teacher mains a it is that teacher,” but employee professional, public school involved is a full-time bringing religion classroom. into the who unaccustomed to single Given that a of not incident indoctrination occurring has been identified as thousands classes Rapids City past offered in New Grand York over the acknowledge two is time decades, it to that risk identified exaggerated. greatly in Meek was public parochial risk Just as the school teachers religion exaggerated, classrooms will inculcate has been so degree supervision required manage has the that risk. City respect progam In this the New York Title I is instruc- supervision necessary tive. What has been New York public help disadvantaged to enable school teachers to years proselytizing? children for 19 without once Public offi- prepared warning cials have careful instructions school exclusively teachers of their secular and have re- mission, quired study App. I Title teachers to and observe them. 50-51. Under the rules, Title teachers are not accountable private they respon- or school officials; sole have sibility selecting participate the students who in their determining eligi- class, must administer their own tests for bility, engage teaching cooperative cannot team or activi- ties with teachers, school must sure make that all equipment they materials and use not used otherwise participate school, not must any religious activities in the schools or introduce matter teaching. compliance into their To rules, ensure a with supervisor program field public and a are full-time coordinator, who employees, to each make unannounced visits teacher’s classroom at least at 53. Id., once month. pub- degree supervision
The Court concludes that this employees by employees lic school other consti- entanglement tutes cannot excessive of church and state. City’s agree. supervision York that occurs New supervision significantly does not differ from the any public regardless location receives, school teacher suggests that the re- classroom. Justice Powell quired supervision must because State is extensive *23 public religion.
certain that school teachers do not inculcate reasoning require Ante, at 415. That would us close our always for chance that a schools, there is some bring religion regard- school teacher classroom, will into the less of its Jaffree, S., location. See Wallace v. U. 44-45, n. 23. Even if I remained confident of usefulness entanglement as an I test, Establishment Clause would City’s prevent religious conclude that New York efforts to adequate indoctrination Title classes have been have entanglement not caused excessive institutional of church and state. potential political
The Court’s rebanee on the divisive- entanglement unpersuasive. ness as evidence of undue is also support proposition There is little record for the that New City’s ignited any York admirable Title has con- troversy litigation. other than this Mueller Allen, v. (1983), n. 11 388, 403-404,
U. S. the Court cautioned that the inquiry” political “elusive into divisiveness should be confined category concurring to a narrow aid cases. The opinion Lynch Donnelly, suggesting analysis further,
went that Establishment Clause solely government should focus on the character of the activ- ity might political that “the divisiveness, cause prong entanglement properly of the Lemon limited to test entanglement.” institutional entanglement test that adhere to the doubts about the expressed Lynch. our It indeed to base
were is curious speculation interpretation as to the of the Constitution on may parties phenomenon create of a likelihood merely by prosecuting which My about the a lawsuit. reservations encompass entanglement its test, however, have come aspects has institutional as well. As Justice Rehnquist many pointed in our Establishment of the inconsistencies out, paro- insistence that our decisions can be ascribed to Clause purpose and effect still with a valid chial aid entanglement. Wallace v. be invalid virtue of undue supra, at 109-110. Jaffree, For we example, permit *24 to a school, to for bus pay transportation parochial State Education, Board Everson v. 1 (1947), 330 U. S. but pre- from buses for school field providing parochial clude States on the such involve excessive state theory trips super- trips, Wolman, of the officials who lead them. 433 vision extent, at 254. To a the anomalous results S., great U. cases are to [the] our Establishment Clause “attributable Religion The Clauses ‘entanglement’ prong.” Choper, Pitt. L. Conflict, First Amendment: U. Reconciling (1980). Rev. involvement of church and state
Pervasive institutional relevant of a statute which deciding remain may effect Tax Walz v. Clause, to violate the Establishment alleged Comm’n, but state efforts to ensure only that resources are used for nonsectarian ends should not themselves serve invalidate otherwise The sectarian requires organizations valid statute. State on a whole of matters without cooperate range thereby or that advancing religion giving impression gov- supra, Jaffree, Wallace at ernment endorses religion. J.) that state (dissenting opinion (noting Rehnquist, curriculum, impose myriad attendance, educational agencies schools). certification, fire, and on sectarian safety regulations If advancing a statute lacks a or effect of or purpose endorsing not invalidate it because it merely requires would religion, between church and state or some ongoing cooperation some to ensure that state funds do not advance state supervision religion.
Ill does not the end of the Title Today’s ruling spell program children. disadvantaged of remedial education Children schools still obtain the benefits of may attending public children who attend program. Impoverished also continue to benefit from — of their schools possibly offered off the premises portable just edge property. only classrooms over the of school The disadvantaged holding children who lose under the Court’s economically are those cities logistically where it is not provide public feasible to facilities for remedial education adjacent signifi- to the school. But this subset is cant, for it includes more than 20,000 New York school- country. children and uncounted others elsewhere in the tragic. children, For these the Court’s decision is deprives meaningful Court them of a that offers a chance success life, and it does so on the untenable (most theory school teachers of whom are of dif- students) likely ferent teaching faiths than their to start religion merely they because have walked across the thresh- *25 reject theory old of a analy- school. this and the Pittenger sis in Meek v. on which it is based. cannot close my eyes to the fact over that, almost two decades, New York City’s public helped school teachers have thousands of im- poverished parochial school children to overcome educational disadvantages attempting religion. without once to inculcate praiseworthy Their efforts have not eroded and do not religious liberty threaten the assured the Establishment contrary judgment Appeals Clause. The of the Court of should be reversed. respectfully dissent.