Appeal by Plaintiffs from an Order of the District Court for the Eastern District of New York, Edward R. Neaher, Judge, Granting Defendants' Motion for Summary Judgment and Dismissing the Complaint in an Action Seeking Declaratory and Injunctive Relief with Respect to Title I of the Elementary and Secondary Education Act of 1965, 20 U.S.C. § 2701 Et. Seq., as Applied by the New York City Board of Education, on the Ground that it Violates the Establishment Clause of the First Amendment. See also National Coalition for Public Education & Religious Liberty v. Harris, 489 F. Supp. 1248 (S.D.N.Y.), Appeal Dismissed for Want of Jurisdiction, 449 U.S. 808, 101 S. Ct. 55, 66 L. Ed. 2d 11 (1980).
Feinberg, Chief Judge, Friendly and Oakes, Circuit Judges.
The venerated language of the First Amendment provides that
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . .
Title I of the Elementary and Secondary Education Act of 1965 ("the Act"), 20 U.S.C. § 2701 et seq.,*fn1 declared it to be the policy of the United States to provide financial assistance to local educational institutions serving areas with concentrations of children from low-income families to expand and improve their educational programs which contribute particularly to meeting the special educational needs of educationally deprived children, and authorized the Commissioner, now the Secretary, of Education to make payments to State educational agencies for grants made on the basis of entitlements created by the statute. Since 1966 New York City ("the City") has been receiving federal funds to finance programs wherein it sends public school teachers and other professionals into religious and other nonpublic schools to provide remedial instruction and clinical and guidance services to students meeting the standards of the Act and the Secretary's regulations thereunder. The question is whether the Establishment Clause permits this.
We have no doubt that the program here under scrutiny has done much good and that, apart from the Establishment Clause, the City could reasonably have regarded it as the most effective way to carry out the purposes of the Act. We likewise have no doubt that the City has made sincere and largely successful efforts to prevent the public school teachers and other professionals whom it sends into religious schools from giving sectarian instruction or otherwise fostering religion. However, we hold that the Establishment Clause, as it has been interpreted by the Supreme Court in Public Funds for Public Schools v. Marburger, 358 F. Supp. 29 (D.N.J. 1973), aff'd mem., 417 U.S. 961, 94 S. Ct. 3163, 41 L. Ed. 2d 1134 (1974); Meek v. Pittenger, 421 U.S. 349, 44 L. Ed. 2d 217, 95 S. Ct. 1753 (1975) (particularly Part V, pp. 367-72); and Wolman v. Walter, 433 U.S. 229, 53 L. Ed. 2d 714, 97 S. Ct. 2593 (1977), constitutes an insurmountable barrier to the use of federal funds to send public school teachers and other professionals into religious schools to carry on instruction, remedial or otherwise, or to provide clinical and guidance services of the sort at issue here. A more elaborate statement of the facts follows.
The Facts and the Proceedings in the District Courts
The Act provides for annual Congressional appropriations for programs proposed by local educational agencies ("LEAs") and approved by state education agencies ("SEAs"), 20 U.S.C. § 2731. All programs are administered solely by the LEA in the particular area and are staffed entirely with the LEA's employees. 20 U.S.C. § 2734(m); 45 C.F.R. §§ 116.42, 116a.23(f). To be eligible for Title I funds, a program must satisfy certain statutory criteria that are designed to assure that the Act's purposes are advanced. For example, Title I funds may be provided only to children who meet the dual eligibility requirement of (1) educational deprivation, defined as below age-level performance, and (2) residence in an area designated by the LEA, in accordance with Title I regulations, as having a high concentration of children from low-income families. 20 U.S.C. §§ 2722, 2732-34. Federal financing is available only for programs that will supplement, rather than supplant, non-federally funded programs that would have been available in the absence of Title I funds. 20 U.S.C. §§ 2734(f), 2736(c).
20 U.S.C. § 2740(a) provides:
To the extent consistent with the number of educationally deprived children in the school district of the local educational agency who are enrolled in private elementary and secondary schools, such agency shall make provision for including special educational services and arrangements (such as dual enrollment, educational radio and television, and mobile educational services and equipment) in which such children can participate. . . .
Expenditures for educational services and arrangements pursuant to this section for educationally deprived children in private schools shall be equal (taking into account the number of children to be served and the special educational needs of such children) to expenditures for children enrolled in the public schools of the local educational agency.
Regulations issued by the Secretary require that each LEA provide services designed to meet the needs of educationally deprived children who attend private schools, see 45 C.F.R. § 116a.23. Going somewhat beyond the statute, the regulations provide that the types of services to be provided shall be determined "on a basis comparable to that used in providing for the participation of public school children." Id.*fn2
The New York City Board of Education ("the Board") has developed elaborate procedures, not questioned here, for identifying the "target public school attendance areas" satisfying the economic disadvantage criteria for Title I eligibility,*fn3 see 20 U.S.C. § 2732, and the students in need of remedial instruction, see 20 U.S.C. § 2734(b). New York State has developed procedures, also not criticized here, for determining New York City's share of the Title I funds received by it. The New York City Board of Education allocates these funds between public and nonpublic school children according to a per capita formula based on the total number of public and nonpublic school students determined to be eligible for Title I services. These amounts are then scaled down to take account of budgetary constraints. In 1981-82 the nonpublic school population benefitting from the City's Title I program constituted 13.2% of the total. The constitutional problem arises from the fact that the vast majority of these nonpublic school students attend religious schools, with schools affiliated with the Roman Catholic Archdiocese of New York and the Diocese of Brooklyn accounting for 84% of such students and Hebrew day schools accounting for another 8% (1981-82 figures).
The City's initial Title I program for nonpublic school students required them to travel to public schools after regular school hours to receive remedial services from public school employees. When attendance lagged, the Board transferred some Title I services to nonpublic schools after regular school hours while maintaining other services at off-premises sites. Attendance, however, remained poor. The reasons assigned for the failure of the programs were that both students and teachers were tired, that there was concern about the safety of the children traveling home after dark or in inclement weather, and that communication between Title I teachers and other professionals and the regular classroom teachers of the nonpublic schools was virtually impossible. A solution whereby nonpublic school students could participate with public school students in programs conducted at public schools during the regular school day was rejected in part because of doubts whether under Art. XI, § 3, of the New York Constitution*fn4 nonpublic school students could participate with public school students in programs conducted on public school premises during regular school hours. In consequence, on August 31, 1966, the Board adopted a resolution that remedial reading, remedial arithmetic, speech therapy and guidance counseling for educationally disadvanataged children in nonpublic schools be provided on the latters' own premises by peripatetic public school employees who would go from one school to another during the school day. Essentially that program has been continued to the present time. A study made for the 1977-78 school year indicated that a program whereby the nonpublic school students would be transplanted to public schools would involve additional expense for transportation and other costs of more that $4.2 million, which would have been more than 42% of the budget for the nonpublic school Title I program. Apart from the large reduction in instructional and other services thereby entailed, the off-premises program, as alleged by the City, would have been less effective for reasons already indicated.
We interrupt this statement of the facts to indicate how the case comes before us. In 1976, the National Coalition for Public Education and Religious Liberty brought an action in the District Court for the Southern District of New York against the Secretary of Health, Education and Welfare, the United States Commissioner of Education, and the Chancellor of the New York City Board of Education to enjoin the program thus partially described as violative of the Establishment Clause. See National Coalition for Public Education & Religious Liberty v. Harris, 489 F. Supp. 1248 (S.D.N.Y.), appeal dismissed, 449 U.S. 808, 66 L. Ed. 2d 11, 101 S. Ct. 55 (1980) [hereafter cited as " PEARL "]. An evidentiary hearing was conducted before a three-judge court in May 1979. Pursuant to an agreement reached at a pretrial conference the defendants presented the bulk of their case in the form of a narrative summary which synthesized numerous affidavits and documentary evidence describing the operations of the City's Title I program in nonpublic schools. A few witnesses were also called. In an able opinion by Senior District Judge Tenney, the court expressed itself satisfied that the program as carried out did not violate the Establishment Clause and dismissed the complaint. An appeal to the Supreme Court was dismissed for want of jurisdiction. We were told at argument that this was because of untimeliness.
Meanwhile, on August 11, 1978, this action for declaratory and injunctive relief with respect to the City's plan was brought by six federal taxpayers, see Flast v. Cohen, 392 U.S. 83, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968), in the District Court for the Eastern District of New York but was stayed pending the final determination of the PEARL case. Four individuals whose children attend nonpublic schools in the City and receive remedial educational assistance under Title I, represented by the same counsel who had represented the parent intervenors in PEARL, were permitted to intervene as defendants. The parties stipulated that the case was to be decided upon the record in PEARL, along with certain affidavits supplementing those previously filed. Judge Neaher, agreeing with the three-judge court in PEARL, granted defendants' motion for summary judgment and dismissed the complaint. Plaintiffs did not dispute the correctness of defendants' assertions about the basic facts, as distinguished from interlarded conclusions, insofar as such facts could be within the knowledge of the witnesses and affiants, and we have drawn and will continue to draw upon the various statements and affidavits, particularly the defendants' Statement of Material Facts Not In Dispute under former Rule 9(g) of the Eastern District, generally without particularizing the source.
Under the City's program the Board provides nonpublic school students -- primarily, as we have stated, students enrolled in religious schools -- with five types of remedial services: remedial reading, reading skills centers, remedial mathematics, English as a second language, and clinical and guidance services. No form of remedial service is provided with Title I funds if it is being provided by the nonpublic schools.The first four types of services are described in the margin.*fn5 The clinical and guidance program is designed to enhance achievement in the four instructional programs by providing diagnosis and treatment by guidance counselors, school psychologists, social workers and psychiatrists. The instructional services are generally provided to groups of about 10 students with an emphasis on individualized instruction. The clinical and guidance professionals generally deal with students on an individual basis.
The teachers and other professionals engaged in the City's nonpublic school program are, with the exception of some physicians under special contract, regular salaried employees of the Board who have applied for such assignments. Religion is not a factor in the assignment. Determination of which nonpublic schools a teacher or other professional shall serve is made by the administrators of the City's Bureau of Nonpublic School Reimbursable Services. The amount of time that a particular teacher or other professional will spend at any one nonpublic school is determined by the number of students eligible for the Title I program and the needs of such students. During the 1981-82 school year, some 78% of all Title I teachers and other professionals spent less than five days a week in the same public school and worked in more than one; children in 180 of the 231 nonpublic schools with Title I services received these from itinerant teachers; all non-teacher professionals were itinerant. Affidavits of a considerable number of teachers demonstrate that a large majority work in nonpublic schools with religious affiliations different from their own.
Instructions issued to the teachers and other professionals by the Bureau of Nonpublic School Reimbursable Services emphasize their accountability to their Title I supervisor and their nonaccountability to any nonpublic school official. They are solely responsible for the selection of students for the program and are to take all necessary steps to assure that materials and equipment provided for Title I activities are used only therein. They are not to engage in team-teaching or other cooperative instructional activities with nonpublic school teachers, to become involved with religious activities of the nonpublic schools or to introduce any "religious matter" into their teaching. While it is deemed necessary for the Title I teacher to confer with the regular classroom teachers of the nonpublic schools concerning the students' needs and progress in that classroom environment, the Title I teachers are instructed to confine these consultations to mutual professional concerns about the students' educational needs and not to engage in any discussion of matters of a religious nature.
The Title I teachers and other professionals are subject to the supervision of field supervisors, each of whom is ordinarily responsible for 22 Title I teachers and attempts to make at least one unannounced visit per month. The field supervisors are in turn supervised by program coordinators. While they too make occasional unannounced visits, a principal method of carrying out their responsibilities is through monthly in-service training sessions, frequently held on days when the public schools are in session but the nonpublic schools are observing a religious holiday. Defendants emphasize the absence of any recorded complaint by a Title I teacher of interference by nonpublic school authorities or of any reports by supervisors that teachers have engaged in religious activity.
Teaching materials and equipment used in the Title I program are selected by City employees. The teaching materials are not to duplicate materials used in regular classroom instruction or to have any religious content. All such equipment and materials are labeled as property of the Board for use in the Title I program, are locked in storage and filing cabinets when not in use and are subject to an annual inventory.
Before approving the assignment of Title I teachers or other professionals to a nonpublic school, an administrator of the Board's Office of Special Projects informs the principal of applicable federal, state and local guidelines, including the requirement that any room used for Title I instruction or support service be free of religious symbols and artifacts. Nonpublic schools with children receiving Title I instructional services "typically" reserve a classroom for the exclusive use of Title I teachers. The clinical and guidance professionals customarily use the nurse's room or a comparable facility. Defendants assert broadly that "none of the nonpublic school facilities used for Title I remedial instruction or support services contains any religious statutes, symbols, pictures or artifacts."
Administrative contacts between the Board's Office of Special Projects and nonpublic school officials are said to be of a routine character, falling into three general categories -- the Board's dissemination of information, its processing of requests for services by the nonpublic schools, and its annually requesting information needed for a survey of the workings of the program. While there have been criticisms of nonpublic school principals by the Board and vice versa, none of them has turned on matters of religion.
Defendants' statement of the facts concerning the operation of the Title I program in nonpublic schools may be summarized by quoting an observation from a 1971 report by the United States Office of Education: "Title I creates the unusual situation in which an educational program may operate within the private school sturcture but be totally removed from the administrative control and responsibility of the private school." United States Office of Education (USOE) Program Guide No. 44 (1968), reproduced in Title I ESEA, Participation of Private School ...