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December 11, 1978

COMMITTEE FOR PUBLIC EDUCATION AND RELIGIOUS LIBERTY, Bert Adams, Barbara Brook, Naomi Cowen, Robert B. Essex, Florence Flast, Charlotte Green, Helen Henkin, Martha Laties, Blanche Lewis, Ellen Meyer, Rev. Arthur W. Mielke, Edward D. Moldover, Aryeh Neier, David Seeley, Howard M. Squadron, Charles H. Sumner and Cynthia Swanson, Plaintiffs,
Arthur LEVITT, as Comptroller of the State of New York, and Ewald B. Nyquist, as Commissioner of Education of the State of New York, Defendants, and Horace Mann-Barnard School, La Salle Academy, Long Island Lutheran High School, St. Michael School and Yeshivah Rambam, Intervenor-Defendants

The opinion of the court was delivered by: MANSFIELD

For the second time we are required to pass upon the constitutionality of Chapter 507, as amended by Chapter 508, of the 1974 Laws of New York ("the Statute"), which authorizes the State to reimburse private schools for the cost of performing certain state-mandated pupil testing and record keeping. The statute has its background in Levitt v. Committee for Public Education, 413 U.S. 472, 93 S. Ct. 2814, 37 L. Ed. 2d 736 (1973) (Levitt I ), where the Supreme Court struck down an earlier New York statute on the same subject as violative of the First Amendment's Establishment Clause, applicable to the states through the Fourteenth Amendment, on the grounds that it authorized State financing of tests prepared by sectarian school teachers which might be used for religious instruction and that the Statute had no auditing provisions designed to insure that sectarian schools would be reimbursed by the State only for secular services.

In 1974 the New York legislature responded by enacting the Statute presently under review, which sought to remedy the features found objectionable by the Supreme Court by providing for State preparation of the tests and auditing procedures to assure that private schools would be reimbursed only for these State-mandated services. Thereafter, in Committee for Public Education and Religious Liberty v. Levitt, 414 F. Supp. 1174 (1976) (Levitt II ), we held that despite these changes the amended Statute did not pass muster under the Establishment Clause. *fn1" In doing so we relied heavily on Meek v. Pittenger, 421 U.S. 349, 95 S. Ct. 1753, 44 L. Ed. 2d 217 (1975), which postdated Levitt I. One year after our decision the Supreme Court decided Wolman v. Walter, 433 U.S. 229, 97 S. Ct. 2593, 53 L. Ed. 2d 714 (1977), following which it vacated our judgment in Levitt II and remanded the case for reconsideration in light of Wolman. Three justices voted to affirm our decision. 433 U.S. 902, 97 S. Ct. 2963, 53 L. Ed. 2d 1086 (1977). *fn2"

 Following remand we held an evidentiary hearing to receive proof relevant to the issues. With commendable cooperation the parties succeeded in agreeing upon the pertinent evidence which was then furnished to us in the form of a stipulation of facts and exhibits. Since Wolman has in our view relaxed some of Meek "s constitutional strictures against state aid to sectarian schools we now conclude, upon application of Wolman "s standards to the record before us, that amended Chapter 507 may be upheld as constitutional.

 The amended Statute, which became effective July 1, 1974, provides for reimbursement to private schools of the "actual cost" of complying with State requirements for public attendance reporting and the administration of State-prepared standardized examinations such as Regents examinations and the pupil evaluation program. These reports and tests are required of public and private schools alike and are designed to improve the educational program offered in New York schools.

 The Statute authorizes reimbursements for two categories of services: the administration of State-prepared examinations and the execution of State-required reporting procedures. The State prepares a large number of examinations for use in evaluating the quality of the education received in New York schools and the abilities of individual students. At the present time, most of these tests are administered within one of three major examination programs. First, there is the Pupil Evaluation Program (PEP), consisting of standardized reading and mathematics achievement tests. These tests must be administered to all students in grades 3 and 6. Tests for ninth grade students are also prepared for use by schools on an optional basis. These tests are entirely multiple-choice, objective examinations and can be graded by hand or machine. Complete instructional manuals for giving and scoring the examinations are furnished to the school by the State. The scores are returned by school personnel to the State Education Department.

 The second battery of tests are the comprehensive achievement tests (Regents "end-of-the-course" examinations) based on State courses of study for use in grades 9 through 12. Presently provided in 19 subjects, *fn3" these tests consist largely or entirely of objective questions with multiple-choice answers. Some of the examinations contain one or two essay questions or mathematical problems involving extended answers, which, of course, cannot be graded mechanically. Detailed instructional manuals are furnished by the State to schools for the administration of these exams and rating guides for their scoring of them. Each school is required to submit the passing and failing papers in certain subjects to the State Education Department for review. After the March/April and August exam dates, schools return all completed exam papers. In January and June a random sampling procedure is used by the State to select completed examination papers for review.

 The third principal set of examinations is the Regents Scholarship and College Qualification Test (RSCQT), which has been used as a basis for awarding scholarships to New York high school students and for admitting students to various units of the State University. All answer papers for the RSCQT are scored at the State Education Department.

 The Statute also authorizes reimbursements to private schools for the cost of preparing informational reports required by State law. Each year, private schools must submit to the State a Basic Educational Data System (BEDS) report. This report contains information regarding the student body, faculty, support staff, physical facilities, and curriculum of each school. Schools are also required to submit annually a report showing the attendance record of each minor who is a student at the school. N.Y.Educ.Law § 3211 (McKinney).

 Schools which seek reimbursement must "maintain a separate account or system of accounts for the expenses incurred in rendering" the reimbursable services, and they must submit to the N.Y. State Commissioner of Education an application for reimbursement with additional reports and documents prescribed by the Commissioner. Chapter 507, as amended, §§ 4-5. Reimbursable costs include proportionate shares of the teachers' salaries and fringe benefits attributable to administration of the examinations and reporting of State-required data on pupil attendance and performance, plus the cost of supplies and other contractual expenditures such as data processing services. Applications for reimbursement cannot be approved until the Commissioner audits vouchers or other documents submitted by the schools to substantiate their claims. §§ 6-7. The Statute further provides that the State Department of Audit and Control shall from time to time inspect the accounts of recipient schools in order to verify the cost to the schools of rendering the reimbursable services. If the audit reveals that a school has received an amount in excess of its actual costs, the excess must be returned to the State immediately. § 7. It is estimated that the reimbursements to private schools under the Statute will amount to $ 8,000,000 to $ 10,000,000 a year.

 The lion's share of the reimbursements to private schools under the Statute would be for attendance-reporting. According to applications prepared by intervenor-defendant private schools for the 1973-1974 school year, between 85% And 95% Of the total reimbursement is accounted for by the costs attributable to attendance-taking, of which all but a negligible portion represents compensation to personnel for this service. However, the total amount paid for these attendance-taking services amounted to only approximately 1% To 5.4% Of the total amount budgeted by the schools for salaries and fringe benefits.


 The late Justice Harlan once observed that "it is far easier to agree on the purpose that underlies the First Amendment's Establishment and Free Exercise Clauses than to obtain agreement on the standards that should govern their application." Walz v. Tax Commission, 397 U.S. 664, 694, 90 S. Ct. 1409, 1424, 25 L. Ed. 2d 697 (1970). However, in Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971), the Court established three criteria for a constitutional grant of State assistance to sectarian institutions: (1) the assistance program must have "a secular legislative purpose," (2) it must not have a "primary effect" of advancing or inhibiting religion, and (3) it must not excessively entangle the government in the affairs of sectarian institutions.

 This now familiar tripartite test may have given some orderliness to Establishment Clause analysis, but for the most part it has simply identified more precisely the areas of uncertainty. Unfortunately, Justice Harlan's observation is as appropriate now as it was in 1970. We still face confusing and imprecise dictates. However, in such additional light as is shed by Wolman, we believe that the Statute here does not transgress the "blurred, indistinct and variable" limitations imposed upon federal and state governments by the Establishment Clause. 403 U.S. at 614, 91 S. Ct. 2105.

 As in Levitt II, we can pass quickly over the first leg of the Establishment Clause test. The statute clearly manifests a secular legislative purpose. See 414 F. Supp. at 1178. The central issue, as frequently happens in cases involving the Establishment Clause, is whether the Statute has a "primary purpose" (which includes a "direct and immediate effect," Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 783 n. 39, 93 S. Ct. 2955, 37 L. Ed. 2d 948 (1973)), of advancing religion. In Levitt II we concluded that Meek v. Pittenger, supra, virtually mandated our holding that the Statute had such an effect, since the Supreme Court there ruled that "substantial aid to the educational function of (sectarian) schools . . . necessarily results in aid to the sectarian school enterprise as a whole." If, as seemed to be the case, the Court considered the secular and religious dimensions of education provided in sectarian schools to be inseparable, it appeared to us to follow that direct aid to such schools, "even though ostensibly limited to wholly neutral, secular instructional material and equipment, inescapably results in the direct and substantial advancement of religious activity." 421 U.S. at 366, 95 S. Ct. at 1764. We reasoned that since administration of examinations and record keeping are "as much a part of the educational function of private schools as classroom instruction in secular subjects," the State subsidies for these secular functions aided the sectarian enterprise as a whole and thereby directly advanced religion. 414 F. Supp. at 1179.

 The concept that religion so pervades lower sectarian schools that even wholly secular instruction or equipment is always subject to the risk of religious orientation, rendering separation of secular and religious educational functions extremely difficult, has repeatedly been posed by the Supreme Court as an inherent problem faced in determining the constitutionality of state aid to sectarian schools. See Lemon v. Kurtzman, 403 U.S. 602, 618-19, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971); Levitt I, supra, 413 U.S. at 480, 93 S. Ct. 2814; cf. Tilton v. Richardson, 403 U.S. 672, 680-81, 91 S. Ct. 2091, 29 L. Ed. 2d 790 (1970) (this concept inapplicable to church-affiliated colleges). It appeared to us that in Meek the Court, in lieu of a case-by-case analysis of evidence to assess the degree of risk that state aid might be used for religious purposes, was establishing a Per se rule prohibiting Any state aid to educational activities carried out in sectarian schools, except for the loan of textbooks to students, which was upheld in Board of Education v. Allen, 392 U.S. 236, 88 S. Ct. 1923, 20 L. Ed. 2d 1060 (1968). Indeed Justice Stewart observed in his plurality opinion that the "diminished probability" that religious doctrine might become intertwined with secular instruction would not render state aid permissible as long as the potential existed. 421 U.S. at 370-71, 95 S. Ct. 1753. Applied consistently, Meek would allow only state aid coming under the mantle of "general welfare" programs serving the health and safety of school children. *fn4" See Wolman, supra, 433 U.S. at 262, 97 S. Ct. 2593 (Powell, J., concurring in part and dissenting in part).

 Although Wolman does not expressly renounce Meek "s theory that aid to a sectarian school's education activities is Per se unconstitutional, *fn5" it does revive the more flexible concept that state aid may be extended to such a school's educational activities if it can be shown with a high degree of certainty that the aid will only have secular value of legitimate interest to the State and does not present any appreciable risk of being used to aid transmission of religious views. *fn6" See 433 U.S. at 240, 244, 247-48, 251, 254, 97 S. Ct. 2593. It is this concept which we apply to the provisions of the statute before us.

 In Wolman the Court upheld a section of an Ohio statute authorizing expenditure of State funds:


"To supply for use by pupils attending nonpublic schools within the district such standardized tests and scoring services as are in use in the public schools of the state." Ohio Rev.Code Ann. § 3317.06(J) (Supp.1976).

 The State of Ohio furnished the tests which were administered and scored by state personnel. Justice Blackmun reasoned that as the sectarian schools were unable to control the content or result of state-prepared examinations, there was no substantial danger that the exams would be used for religious teaching. 433 U.S. at 240, 97 S. Ct. 2593. If, as the Court had asserted in Meek, the secular and religious dimensions of sectarian school education were inseparable, the examinations thus provided and graded by the State would have furthered religious education, even though they covered only secular subjects. Wolman, then, must be viewed as rejecting the concept that State support for educational activities necessarily advances religion.

 In the present case all tests provided under the Statute, like those supplied under the Ohio law, are prepared by the State. However, except for the RSCQT exams, which are graded exclusively by personnel of the State Education Department, the tests furnished by New York State, unlike those supplied under the Ohio statute, are administered and graded by sectarian school personnel, for whose services in performing this task and in taking attendance the private schools are reimbursed by the State. The question, therefore, is whether these features of the New York law represent a sufficient distinction from Wolman to render it inapplicable and to call for nullification of the Statute. We think not. Although these features render the constitutionality of the New York Statute a closer question than that presented by the Ohio law in Wolman, the risk of the New York examinations or services being diverted to religious purposes is altogether too insubstantial to require a departure from Wolman. The secular nature of the examinations and the almost entirely mechanical method prescribed for their administration as well as for attendance-taking precludes any substantial risk that the examinations or services will be used for injection or inculcation of religious views or principles, even in a pervasive religious atmosphere. The careful auditing procedure, moreover, insures that State aid will be restricted to these secular services.

 Turning first to the RSCQT examinations, the risk of their being used for religious purposes through grading is nonexistent, since they are corrected exclusively by State Education Department personnel. The tests administered under the Pupil Evaluation Program (PEP) consist entirely of objective, multiple-choice questions, which can be graded by machine and, even if graded by hand, afford the schools no more control over the results than if the tests were graded by the State.

 Similarly, the overwhelming majority of the questions on the comprehensive achievement tests consist of objective inquiries requiring the student to choose between multiple answers, which leave no room for any possible religious indoctrination. Although some of the comprehensive achievement examinations may, among scores of multiple-choice questions, have a question asking students to write an essay on one of several topics specified in the exam, which conceivably could be used by an instructor to gauge a student's grasp of religious ideas and to grade the answer accordingly, the likelihood of such an event is so minimal and the State procedures designed to guard against serious inconsistencies in grading are so complete that there is no "substantial risk that these examinations . . . will (be administered) with an eye, unconsciously or otherwise, to inculcate students in the religious precepts of the sponsoring church." Levitt I, supra, 413 U.S. at 480, 93 S. Ct. at 2819. Moreover the State's guidelines for each achievement test and the review procedures (described above) provide an adequate check against any misuse of essay questions. *fn7"

 In short, any benefit to religious indoctrination from the administration of the State examinations by sectarian personnel is at best "indirect" and "incidental" to the secular value of the exams. As the Supreme Court pointed out in Nyquist, supra, 413 U.S. at 771, 93 S. Ct. at 2965, "not every law that confers an "indirect,' "remote,' or "incidental' benefit upon religious institutions is, for that reason alone, constitutionally invalid." In the absence of some other potential for diversion we fail to find the possible indirect benefit from this feature of the Statute sufficient to warrant its nullification.

 The second distinction between the Ohio statutory provision upheld in Wolman and the New York Statute is that the latter, unlike the former, authorizes direct reimbursement to non-public schools for their administration of the exams and for attendance-taking. Although the Supreme Court has on occasion noted the absence of authorization for direct payment to a sectarian school as a factor to be considered, see Wolman, supra, 433 U.S. at 253, 97 S. Ct. 2593; Lemon, supra, 403 at 621, 91 S. Ct. 2105; and Everson v. Board of Education, 330 U.S. 1, 18, 67 S. Ct. 504, 91 L. Ed. 711 (1947), the Court has never declared a statute unconstitutional because of its presence. Putting aside the question of whether direct financial aid can be administered without excessive entanglement by the State in the affairs of a sectarian institution, there does not appear to be any reason why payments to sectarian schools to cover the cost of specified activities would have the impermissible effect of advancing religion if the same activities performed by sectarian school personnel without reimbursement but with State-furnished materials have no such effect. We have already determined that the State does not promote religious education by furnishing and allowing sectarian staff members to grade State-prepared exams. Accordingly, the State does not improperly promote religion when it reimburses the schools for the cost of administering the exams.

 The Supreme Court's disapproval of statutes authorizing cash payments has turned on the fact that no reasonable guarantee was provided for insuring that the money would be applied only to secular activities. See, e.g., Levitt I, supra, 413 U.S. at 480, 93 S. Ct. 2814; Nyquist, supra, 413 U.S. at 774, 93 S. Ct. 2955; Lemon, supra, 403 U.S. at 619-22, 91 S. Ct. 2105. In each of these cases the Court found either that no effort had been made to restrict the benefit of the financial aid to wholly secular activities or that any efforts to do so would have involved an intolerable level of state surveillance of the sectarian institutions. Levitt I, supra, 413 U.S. at 480, 93 S. Ct. 2814; Nyquist, supra, 413 U.S. at 780, 93 S. Ct. 2955; Lemon, supra, 403 U.S. at 620-22, 91 S. Ct. 2105; cf. Walz, supra, 397 U.S. at 675, 90 S. Ct. 1409. These decisions thus imply that direct cash payments are permissible if they serve exclusively secular purposes and do not involve excessive entanglement. For example, in Levitt I, where the Court struck down the predecessor to amended Chapter 507, the Court commented that the invalid lump-sum payments could not be reduced by a court to "an amount corresponding to the actual costs incurred in performing reimbursable secular services" because this "is a legislative, not a judicial, function." 413 U.S. at 482, 93 S. Ct. at 2820. The implication is that if the legislature chose to exercise its power to fund purely secular activities, the Court would not stand in the way. See Nyquist, supra, 413 U.S. at 774, 93 S. Ct. 2955. In sum a statute does not foster religious education simply because it provides aid in cash rather than in kind.

 Turning to the Statute's reimbursement of a sectarian school's attendance-taking, as distinguished from administration of examinations, since record-keeping is essentially a ministerial task lacking ideological content or use, it is not challengeable on Meek "s theory that any state assistance to the educational process advances religion. Of course it might be argued that since sectarian schools would otherwise be required to expend funds for the taking and recording of attendance, they benefit to the extent that reimbursement facilitates an activity that is essential to the conduct of the sectarian enterprise as a whole or at least "frees up" funds for religious purposes. The "freeing-up" argument, however, has been consistently rejected by the Supreme Court. See, e.g., Nyquist, supra, 413 U.S. at 775, 93 S. Ct. 2955. Although record-keeping may be part of the operation of a sectarian school, we do not view it as approaching the status of a facility such as a classroom, which might be used for secular education, see Id. In our view it is closer to the operation of buses for the transportation of children to sectarian schools, the cost of which may be reimbursed by the State without violation of the Establishment Clause. Everson v. Board of Education, supra. Although school busing may be analogized to "general welfare" services of the type upheld in Meek and Wolman, the Court in Wolman rationalized reimbursement for busing as permissible for the reasons that the activity is unrelated to any aspect of the curriculum and the school does not determine the frequency of the activity subsidized. 433 U.S. at 253, 97 S. Ct. 2593. In view of Wolman "s affirmation of this aspect of Everson we are satisfied that the State's subsidization of attendance-taking in the present case should be upheld, particularly in the absence of any suggestion that such record-keeping can be used to foster an ideological outlook.

 Having concluded that amended Chapter 507 passes the primary-purpose test, we pass on to the question of whether it excessively entangles the State in the administration of sectarian institutions, an issue which we were not required to resolve in Levitt II, in view of our holding there. 414 F. Supp. at 1180.

 Where a state is required in determining what aid, if any, may be extended to a sectarian school, to monitor the day-to-day activities of the teaching staff, to engage in onerous, direct oversight, or to make on-site judgments from time to time as to whether different school activities are religious in character, the risk of entanglement is too great to permit governmental involvement. See, e.g., Lemon, supra, 403 U.S. at 619-22, 91 S. Ct. 2105; Meek, supra, 421 U.S. at 370-71, 95 S. Ct. 1753. The activities subsidized under the Statute here at issue, however, do not pose any substantial risk of such entanglement. *fn8"

 The services for which the private schools would be reimbursed are discrete and clearly identifiable. A teacher's taking of attendance, administration of examinations, and recordkeeping can hardly be confused with his or her other activities. Although there might be a possibility of fraud or mistake in the records submitted by private schools of the teachers' time spent on such activities, the careful auditing procedures anticipated by § 7 of the Statute should provide an adequate safeguard against inflated claims. In addition, since the services subsidized under the Statute are highly routinized, costs of the services for a given size of class should vary little from school to school, thus enabling the State to check claims filed by private schools against records maintained by hundreds of public schools under State supervision. *fn9"

 For the foregoing reasons we conclude that Chapter 507, as amended, does not violate the Establishment Clause.

 Settle judgment on notice.

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