make sense to assess this cost on a per capita basis.
The Barnes/Walker method of assessing gross disproportionality here would counsel in favor of upholding the Alternative Plan. The costs of complying with First Amendment constraints, even if calculated inclusively as plaintiffs suggest, remains well below ten percent of the total Chapter 1 expenses. Such a disparity does not create a constitutional difficulty.
However, some circuits have refused to apply the grossly disproportionate test to determine the constitutionality of Chapter 1 funding schemes. In Pulido and Alexander, the courts rejected it, reasoning that a statistical analysis should not be the determining factor between disparities that are and are not permitted under the Constitution. Instead, these cases concluded that if services were neutrally and generally provided, then any resulting disparity in costs, or even benefits, would be irrelevant. Pulido, 934 F.2d at 924; Alexander, 983 F.2d at 756-57.
Since the Chapter 1 program at issue here provides a general benefit -- remedial educational services -- to all children neutrally, under the Pulido and Alexander approach, any disparity in the costs of delivering this benefit to one child as opposed to another is constitutionally immaterial. Although I agree with the Pulido/Alexander approach, the Alternative Plan at issue here satisfies the "grossly disproportionate" test in any event.
E. The Plan's Potential For Excessive Entanglement
Although excessive church-state entanglement may invalidate a statute, the law does not require "total separation." Lemon, 403 U.S. at 614. The character of the institution benefitted by a statute, the nature of the aid provided, and the resulting relationship between the government and the religious authority are relevant to determining whether excessive entanglement occurs. Id. at 615.
1. The Need For Supervision In A Religious Environment
The Supreme Court has consistently found parochial schools to be "religious environments." See, e.g., Lemon, 403 U.S. at 616. While public teachers working in a religious environment require supervision to ensure the secular content of their classes, their counterparts working in neutral environments do not. In addition, there is no constitutional difficulty involved when the state supervises public employees in public space. Thus, whether supervision of teachers working in public schools and MIUs occurs, or is even necessary, is constitutionally irrelevant. Since teachers working in the Leased Sites are not under the physical or administrative control of religious or religious school authorities, there is no potential for impermissible entanglement arising from their supervision by the government. Finally, there is no need to extensively supervise CAI technicians working in the private schools because their function cannot be employed for religious indoctrination. The mere presence of a public employee who is not a teacher in a private school does not create excessive entanglement. Wolman, 433 U.S. at 241-44; Meek, 421 U.S. at 367; Zobrest, 509 U.S. at 11.
2. Administrative Entanglement
The implementation of a successful Chapter 1 program necessarily involves at least some minimal degree of contact and coordination between public officials and the administration of the parochial school. The Aguilar decision found that the administrative contacts involved in providing services inside private schools created excessive church-state entanglement. The Court has stated, however, that it is neither possible nor required that the state be barred from all contact with religious organizations. The question is one of degree.
Jamestown held that administrative contacts alone could not cause an otherwise constitutional statute to be struck down. 699 F.2d at 10. This seems especially true when the contacts are ministerial, and are not so extensive as to approach the type of joint enterprise that has been characterized as a "symbolic link." The Alternative Plan, as opposed to the previous Chapter 1 program, does not require teachers to coordinate classroom space and internal school procedures with religious school personnel. The types of administrative contact necessary under the current Plan do not advance a joint enterprise, but merely avoid unnecessary conflicts. This type of limited contact cannot be said to create excessive entanglement in violation of the Establishment Clause.
3. Political Divisiveness
Although Lemon v. Kurtzman identified a "broader base" of entanglement that could result from a statute's inspiration of political conflict along religious lines, Lemon, 403 U.S. at 622-23, the Court has made it clear that "political" entanglement alone will not invalidate a law or practice. Lynch v. Donnelly, 465 U.S. at 684; Mueller v. Allen, 463 U.S. at 404, n. 11; Bowen v. Kendrick, 487 U.S. at 612, n. 14; see also Jamestown School Comm., 699 F.2d at 12. Although plaintiffs cite articles expressing public anger against the "symbolic link" that the P.S. 16 case created, there is no evidence of mass dissension as a result of the implementation of the Alternative Plan as presently applied. Furthermore, the Establishment Clause "is not concerned with political divisiveness generally, but only with political divisiveness along religious lines." Jamestown School Comm., 699 F.2d at 12; see also Bollenbach, 659 F. Supp. at 1461. Finally, even if plaintiffs had shown that such political divisiveness had or could occur as a result of the Plan, this alone cannot support a decision to strike down the program. Nyquist, 413 U.S. at 797-98.
For the foregoing reasons, plaintiffs' motion for summary judgment is denied in its entirety. Defendants' and defendant-intervenors' motions for summary judgment are granted.
United States District Judge
Dated: October 17, 1996
Brooklyn, New York