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COMMITTEE FOR PUB. EDUC. & RELIGIOUS LIBERTY v. SE

October 17, 1996

COMMITTEE FOR PUBLIC EDUCATION AND RELIGIOUS LIBERTY, FLORENCE FLAST, HELEN HENKIN, HAZEL SMITH, DENISE KROUSER and CHRISTINA WALKER, Plaintiffs, against SECRETARY, UNITED STATES DEPARTMENT OF EDUCATION, COMMISSIONER OF EDUCATION OF THE STATE OF NEW YORK, and CHANCELLOR AND BOARD OF EDUCATION OF THE CITY OF NEW YORK, Defendants, - and - RACHEL AGOSTINI, et al., Defendant-Intervenors, - and - LEAH SAKS, et al., Defendant-Intervenors,


The opinion of the court was delivered by: GLEESON

 JOHN GLEESON, United States District Judge:

 The Committee for Public Education and Religious Liberty ("PERL"), together with several individual state and federal taxpayers, brings this case against the Secretary of the United States Department of Education, the Commissioner of Education for the State of New York, the Chancellor of New York City schools and the Board of Education of the City of New York (the "Board of Education" or the "Board"), alleging that public funds are being used in violation of the First Amendment of the United States Constitution and of Article XI of the New York State Constitution.

 The program at issue provides federally-funded remedial instruction and support services to educationally disadvantaged elementary and secondary school students in New York City. The present version of this program was devised in response to the Supreme Court's decision in Aguilar v. Felton, 473 U.S. 402, 87 L. Ed. 2d 290, 105 S. Ct. 3232 (1985), which invalidated New York's previous program. Plaintiffs claim that the amended program violates the Establishment Clause. Defendants, joined by parents of religious school students as defendant-intervenors, maintain that the current program avoids any impermissible effect or entanglement and is, therefore, not constitutionally infirm.

 Both sides have moved for summary judgement on undisputed material facts. For the reasons stated below, the defendants' and defendant-intervenors' motions are granted and plaintiffs' motion is denied.

 BACKGROUND

 A. Chapter 1 Legislation and Services

 Since 1965, Congress has enacted a series of laws (referred to here as "Chapter 1") that provides federal funding for remedial educational and support services for certain elementary and secondary school students residing in low-income areas. *fn1" Chapter 1 services are financed by the federal government and provided by local educational agencies ("LEAs," such as defendant Board of Education) to low income, low achieving children. 20 U.S.C. § 2722. To be eligible for educational assistance, a child must be both economically and educationally disadvantaged. A child is economically disadvantaged if she resides in an area that has a high concentration of low-income families, and she is educationally disadvantaged if she is progressing at a level below normal for her age. 20 U.S.C. §§ 2723, 2724. New York City's plan implementing Chapter 1 provides supplemental remedial instruction in math, reading and English as a Second Language ("ESL"). (Declaration of Margaret O. Weiss, P 14.)

 The program is intended to reach eligible students regardless of whether the students attend public or private schools. *fn2" The LEAs must "make provisions for including special educational services and arrangements (such as dual enrollment, educational radio and television, computer equipment and materials, other technology, and mobile educational services and equipment)," in which private school children can participate. Title 20 U.S.C. § 2727(a). This section further requires that "expenditures for educational services and arrangements pursuant to this section for educationally deprived children in private schools [be] equal (taking into account the number of children to be served and the special educational needs of such children) to the expenditures for children enrolled in the public schools of the local educational agency." Section 2727 and its implementing regulations require that private school students receive services "comparable" to those provided to public school students. (Weiss Decl., P 6.) *fn3"

 From the program's commencement in 1965, defendant Board of Education, as a participating LEA, has used the earmarked funds to finance additional classes, counselors and instructors for all eligible children. Chapter 1 funds for the City of New York are administered through the Chancellor of the Board of Education. (Weiss Decl. P 10.) Eligible students attending public schools have been, and continue to be, instructed in the schools that they regularly attend, by being pulled out of their regular classes to attend remedial instruction sessions. Currently, additional methods of combining remedial and regular class instruction are being pursued in public schools, such as the "push-in" or "pull-aside" methods, by which a remedial education teacher gives individualized instruction during a regular class session. (Declaration of Michelle I. Nowosad, PP 19-27; Declaration of Samuel Corsi, PP 3-4.) Prior to 1985, private school students generally received Chapter 1 services in separate classrooms in their schools. *fn4"

 B. Legal Challenges To Public Teaching In Private Schools

 In 1976, the National Coalition for Public Education and Religious Liberty brought an action in the Southern District of New York to enjoin the Chapter 1 program insofar as it provided services in non-public religious schools. A three-judge court held that New York's Chapter 1 program did not violate the Establishment Clause. Nat'l Coalition for Pub. Educ. & 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).

 In 1978, another action was filed in this district by six federal taxpayers *fn5" challenging the City's Chapter 1 program. Felton v. Secretary, U.S. Dep't of Educ., No. 78-CV-1750 (E.D.N.Y.). After the parties stipulated to adopt the factual record of Harris, Judge Neaher granted the defendants' motion for summary judgment. The Second Circuit reversed, holding that the Establishment Clause precludes the funding of any program that sends publicly-paid teachers into religious schools. Felton v. Secretary, U.S. Dep't of Educ., 739 F.2d 48 (2d Cir. 1984). The court stated that "public funds can be used to afford remedial instruction or related counseling services to students in religious elementary and secondary schools only if such instruction or services are afforded at a neutral site off the premises of the religious school." Id. at 64.

 The Supreme Court granted certiorari in the Felton case and rendered a decision on July 1, 1985. Aguilar v. Felton, 473 U.S. 402, 87 L. Ed. 2d 290, 105 S. Ct. 3232 (1985). On the same day, it decided a similar case from the Sixth Circuit, School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 87 L. Ed. 2d 267, 105 S. Ct. 3216 (1985). The Court struck down the federally-funded program challenged in Grand Rapids and invalidated the New York Chapter 1 program for private school students challenged in Aguilar.

 In Grand Rapids, the "shared-time" program at issue involved public school teachers, paid by state funds, teaching certain "secular" subjects in religious schools. The subjects ranged from remedial courses to "enrichment" courses such as home economics, arts and crafts and languages. The classes were offered in the non-public schools, of which 40 out of 41 were "pervasively sectarian." Because the Establishment Clause proscribes "'sponsorship, financial support, and active involvement of the sovereign in religious activity,'" Grand Rapids, 473 U.S. at 381 (quoting Comm. for Pub. Educ. and Religious Liberty v. Nyquist, 413 U.S. 756, 772, 37 L. Ed. 2d 948, 93 S. Ct. 2955 (1973)), the Court held that there can be no public support of a pervasively sectarian enterprise. It found that the program in Grand Rapids amounted to such public support, and it thus impermissibly advanced religion in three ways. First, there was the possibility that publicly-paid teachers might "become involved in intentionally or inadvertently inculcating particular religious tenets or beliefs." Id. at 385. This danger existed because the teachers' presence in a pervasively religious environment might "overtly or subtly" influence them to "infuse the supposedly secular classes they teach" with a religious message. Id. at 387. Second, the Grand Rapids program created a "crucial symbolic link between government and religion, thereby enlisting -- at least in the eyes of impressionable youngsters -- the powers of government to the support of the religious denomination operating the school." Id. at 385. Finally, the Court found the program in Grand Rapids to be constitutionally infirm because it had the effect of "directly promoting religion by impermissibly providing a subsidy to the primary religious mission of the institutions." Id. While noting that a law can permissibly confer an incidental benefit on a religion, the Court characterized the Grand Rapids scheme as state support of religion. The Court explained that since such support frees the pervasively sectarian school from the need to use its own funds for "secular" classes, a religious school so funded has more money to use for religious purposes. In such a case, the state is, in effect, subsidizing the schools' religious goals.

 In Aguilar, the Court concentrated not on the impermissible promotion of religion, but on the excessive entanglement that was required to prevent any such impermissible effect. Aguilar, 473 U.S. 402, 87 L. Ed. 2d 290, 105 S. Ct. 3232. Although it recognized that New York's Chapter 1 program had been effective and successful in its permissible, indeed praiseworthy, goal of providing assistance to the educationally disadvantaged, the Court nevertheless held that the program as administered was constitutionally flawed. To the extent that New York's Chapter 1 program involved public school teachers instructing in secular subjects within religious schools, the Court called the program "very similar" to the program in Grand Rapids, and held that the program was unconstitutional for the reasons set forth in that case. Id. at 408. The Court noted, however, that unlike the School Board in Grand Rapids, New York's School Board had set up a supervisory system designed to monitor the religious content of publicly-funded classes in religious schools. Id. at 409. The Court found that the existence of this monitoring system, while perhaps ameliorating the constitutional violation on one level, created a violation on another level. Even if the supervision curtailed any improper religious sponsorship by preventing state-funded religious indoctrination, the very process of supervising teachers in religious schools constituted an improper entanglement. "The detailed monitoring and close administrative contact required to maintain New York City's [Chapter 1] program can only produce 'a kind of continuing day-to-day relationship which the policy of neutrality seeks to minimize.'" Id. at 414 (quoting Walz v. Tax Comm'n, 397 U.S. 664, 674, 25 L. Ed. 2d 697, 90 S. Ct. 1409 (1970)). The Court found that excessive entanglement resulted both from the administrative contacts between public and religious school authorities required to run a successful Chapter 1 program within private schools and from the supervision by public authorities over public teachers working within the religious schools. Id. at 413.

 Thus, Aguilar and Grand Rapids effectively precluded any publicly-funded teaching on the premises of religious schools. In the wake of those decisions, the Board of Education was forced to abandon its program of providing Chapter 1 classes in private religious schools. *fn6"

 C. The Alternative Plan

 After the Supreme Court's decision in Aguilar, Congress enacted the Elementary and Secondary School Improvement Amendments, which provided more money to local authorities to supply Chapter 1 services to private school students in compliance with Aguilar. Pulido v. Cavazos, 728 F. Supp. 574 (W.D. Mo. 1989), aff'd in part, rev'd in part on other grounds, 934 F.2d 912 (8th Cir. 1991). This amendment contained specific provisions aimed at allowing for and financing alternative delivery of Chapter 1 services to eligible private school programs. Recognizing that the cost of delivery of Chapter 1 services to private schoolchildren would increase after the Aguilar decision, 20 U.S.C. § 2727(d)(4) provides for a special appropriation of federal funds to defray expenses necessary to provide remedial instruction to religious school students in a constitutionally permissible way. A New York State statute similarly provides for special "compliance costs" funding for Chapter 1 programs.

 In the wake of Aguilar, the U.S. Department of Education promulgated a series of guidelines for implementing Chapter 1 programs for private school children. These guidelines prohibited in-school instruction by public school teachers, but authorized off-premises mobile instructional units and computer instruction where possible. (Declaration of Thomas W. Fagan, Exh. B-D). The guidelines further instructed LEAs to deduct any additional costs of providing Chapter 1 services to private school children from the LEA's total Chapter 1 allocation, i.e., prior to apportionment per student. This method, known as "off the top" cost allocation, was intended to fulfill the requirement of 20 U.S.C. § 2727(a) and (b)(1) that Chapter 1 services be provided on an equitable basis to all school children, whether attending public or private schools. See Barnes v. Cavazos, 966 F.2d 1056, 1060 (6th Cir. 1992).

 The New York State Department of Education also issued guidelines on the matter. (Weiss Decl., Exh. B). These guidelines endorsed the options of offering classes at religiously neutral sites (defined as "locations not under the control of any religious authority or organization") in mobile units (if not located on the premises of a sectarian organization) and on public school premises.

 The Board of Education of the City of New York devised and implemented a new plan (the "Alternative Plan") to provide Chapter 1 services to religious school students consistent with Aguilar. The educational content of the Alternative Plan is identical to the plan invalidated in Aguilar -- instruction to eligible students in remedial math, remedial reading and ESL -- and makes use of four delivery options. First, religious school students are based or otherwise escorted to a "matching" public school (one with available space and located no more than ten minutes away) for instruction. Because of the logistical difficulties involved in arranging for integrated classes (see Weiss Decl., PP 39-63), these classes are composed entirely of students from the private school. Second, classes are held in mobile instructional units ("MIUs") -- vehicles outfitted as classrooms and parked on a public street near the private schools during the school day. *fn7" Third, classes are held in sites leased by the Board ("Leased Sites"), which are off-premises but near the private schools. Finally, computer-assisted instruction ("CAI") is provided (preferably in addition to off-premises, face-to-face instruction) through computer terminals located in a designated room in the religious school or through laptop computers sent home with religious school students. (Weiss Decl., PP 101, 114, 117, 121.) *fn8"

 The mix of these delivery methods changed somewhat from 1986 to 1991. *fn9" Because of overcrowding in the public schools, and because of other concerns related to transporting students from private to public schools during the day, this method was used less frequently, and CAI and MIU instruction were used more frequently. (Weiss Decl., PP 44, 48; see also PP 39-63.)

 Each option carries a different price tag. *fn10" The first -- classes held in public schools -- is the least expensive. The School Board pays nothing to use public school classrooms for Chapter 1 purposes. Since students are transported from private schools to public schools by buses already provided to the School Board during the school day, the cost of taking religious school children to and from these Chapter 1 locations is for the most part aggregated with general busing costs for the School District. (Weiss Decl., PP 41, 171.) The same is true for transportation to and from Leased Sites, but, unlike classrooms in public schools, the Board must pay to use the space in leased buildings. During the 1990-91 school year, the Board paid a total of $ 280,402 to lease these sites. (Weiss Decl., P 190.) Non-instructional costs associated with CAI amounted to $ 225,711 in that same school year. (Weiss Decl, P 197.) The provision of MIUs is significantly more expensive than any other delivery method, since each MIU is leased by the Board at a cost of $ 106,934 per year (including driver, garage, insurance, maintenance and repairs). In the 1990-91 school year, the Board spent a total of $ 11,126,541 to lease MIUs. (Weiss Decl., PP 66, 184.)

 D. The Current Constitutional Challenge

 Plaintiffs PERL and taxpayers Florence Flast, Helen Henkin, Hazel Smith, Denise Krouser and Christina Walker, attack the constitutionality of the Alternative Plan. They allege that it violates the United States and New York State Constitutions by impermissibly supporting religion and/or entangling government and religion. According to plaintiffs, each of the four delivery options in the Alternative Plan is constitutionally flawed. Plaintiffs also challenge the practice of taking additional costs for delivery of Chapter 1 services to religious school students "off the top" of Chapter 1 funds, calling the practice an impermissible subsidy of religious institutions.

 Plaintiffs attack the first delivery option -- providing instruction to religious school students in public schools -- because the religious school students are kept separate from the public school ones. *fn11" Citing articles documenting community protests surrounding various segregated class programs, plaintiffs suggest that separate classes of religious and public school students, even if both these classes are held within the public school building, violates the Constitution in that it creates the very community divisiveness and "political entanglement" that the Establishment Clause seeks to prevent. Furthermore, argue plaintiffs, the Second Circuit in Parents' Ass'n of P.S. 16 v. Quinones, 803 F.2d 1235 (2d Cir. 1986), found that the segregation of religious school students within the public school involved in that case was unconstitutional. In P.S. 16, the court declared the segregated program unconstitutional both because of the "inherently divisive" nature of segregation and because segregation of Hasidic children evidenced state support for the Hasidic doctrine of separatism.

 Second, plaintiffs attack the constitutionality of the Board's use of MIUs because of the relatively greater cost this method entails and because, plaintiffs contend, MIUs are "physically and educationally" associated with the religious school and thus create the same constitutional problems addressed in Aguilar and Grand Rapids. Plaintiffs make much of the fact that an MIU is not equipped with restroom, lunchroom or infirmary facilities, and that some surplus equipment used by Chapter 1 instructors is stored in the religious school the MIU services, since there is not enough room for long-term storage in the MIU itself. (Weiss Decl., PP 75-76.) The plaintiffs also contend that there is not much difference between going from classroom to classroom inside the religious school, as in Aguilar, and going from a classroom inside the religious school, out the door, and immediately into a mobile classroom parked at the curb. Plaintiffs claim that MIUs amount to mere annexes of the religious schools. Because the MIU is clearly labeled as property of the City of New York (Weiss Decl., P 173 and Exh. D), plaintiffs allege that, like the supervisory system struck down in Aguilar, the clear association of MIUs with the state creates excessive entanglement between church and state.

 Third, plaintiffs allege that the Leased Sites are not neutral and that classes held at these sites therefore violate the Establishment Clause for the reasons set forth in Aguilar and Grand Rapids. The majority of the sites leased by the Board are indeed owned by a religious organization, often the same Catholic parish that funds the particular private school. Defendants have supplied affidavits stating that all religious symbols have been removed from every Leased Site and that each site is clearly labeled as and used only for a Chapter 1 classroom. *fn12" Plaintiffs contend that mere religious ownership creates a sectarian environment in Leased Sites, rendering them non-neutral. Plaintiffs also argue that paying religious institutions a fee under lease agreements constitutes a direct state subsidy to religion.

 Fourth, plaintiffs challenge CAI as advancing religion and improperly entangling church and state. According to plaintiffs, Aguilar and Grand Rapids suggest that entanglement is inherent in the provision of publicly funded instruction inside a religious school building regardless of whether a teacher is physically present or instructs from another location via computer. There are no teachers present in the religious school who instruct in conjunction with CAI; instead, instruction occurs through computer terminals located in the schools and linked by modem or dedicated phone line to the Board of Education central office. (Weiss Decl., PP 100, 102.) There is, however, a Board-employed technician who is present in the room where CAI terminals are located. Although the technician is directed to limit his assistance to turning the terminals on and off and keeping order among the students (Weiss Decl., P 104-105), plaintiffs contend that the presence of such a public employee is impermissible. Plaintiffs allege the system of CAI thus violates the Establishment Clause just as instruction in private schools by physically present teachers would. Plaintiffs further contend that CAI effectively subsidizes the religious function of sectarian schools by taking over their responsibility for teaching secular subjects.

 Finally, plaintiffs argue that the use of additional funds to pay the "compliance costs" of providing Chapter 1 services to religious school students violates both the Establishment Clause -- by effectively subsidizing religious schools -- and the mandate of Chapter 1 itself -- by failing to treat public and private school children equitably. Part of this dispute centers on the proper interpretation of the requirement of 20 U.S.C. § 2727 and Department of Education regulations mandating that services be provided equitably and equally among private and public school children. Plaintiffs contend that equal treatment, required by Chapter 1, is not provided when the state spends more per pupil for religious school students. Defendants rejoin that the equitable treatment provision mandates the current system of taking extra costs of delivery of services "off the top," since otherwise, religious school students would receive less money per child for instructional purposes.

 DISCUSSION

 A. The "Effects" Cases

 The First Amendment commands that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." *fn13" This prohibition reflects, among other things, the desire of the early settlers of this country to worship freely and to be free from laws which compelled public support of government-favored churches. See Everson v. Board of Education of Ewing, 330 U.S. 1, 8-9, 91 L. Ed. 711, 67 S. Ct. 504 (1946) (citing, inter alia, Macaulay, History of England, vol. I, ch. 2, 4 (1849); Sweet, Religion in Colonial America, 320-22 (1942)). The Supreme Court, in interpreting the Establishment Clause, has noted that the constitutional religion clauses were framed with the same intent as was the Virginia Bill for Religious Liberty, which was written by Thomas Jefferson. See Everson, 330 U.S. at 13; Reynolds v. United States, 98 U.S. 145, 25 L. Ed. 244 (1878). One of the purposes of the Virginia Bill for Religious Liberty was to protect people from being taxed to support religion. Everson, 330 U.S. at 13; Hening, Statutes of Virginia, 84 (1823). The Supreme Court, in reviewing the purposes of the Establishment Clause, has held that the clause means

 
at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. . . . No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.

 Everson, 330 U.S. at 15-16. The First Amendment prevents the government not only from advancing a particular religion, or religion in general, but from inhibiting any or all religions. Everson, 330 U.S. at 16. The government is required to remain neutral, neither granting nor denying benefits to religious institutions on the basis of their religion. Id.

 In the context of state supported primary education coexisting with religious schools, this requirement of neutrality presents a uniquely difficult problem in balancing private school benefits on the wall between church and state. On the one hand, services provided to all schoolchildren necessarily cause, at least to some degree, a benefit to accrue to religious schools, and, therefore, to the religion itself. Very strictly speaking, any such benefit flowing from the government to religion has some "effect of advancing religion." On the other hand, denying children the access to general benefits because of their attendance at church-sponsored schools may effectively punish religious exercise and thus have the effect of inhibiting religion. In its effort to reconcile the mandate of governmental neutrality with the reality that every government act or omission in this context will have some "effect," the Supreme Court has held that the preclusion of an impermissible effect should not be applied so rigidly as to disallow indirect benefits to religious institutions flowing from the provision of religious-neutral, general governmental services. See Everson, 330 U.S. at 16-17. Accordingly, a statute will not be struck down merely because it indirectly benefits religion. See, e.g., Bowen v. Kendrick, 487 U.S. 589, 101 L. Ed. 2d 520, 108 S. Ct. 2562 (1988) (upholding the Adolescent Family Life Act, which recruited religious organizations ...


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