APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
No. 84-237 Argued: December 5, 1984 --- Decided: July 1, 1985 [*]
JUSTICE BRENNAN delivered the opinion of the Court.
The City of New York uses federal funds to pay the salaries of public employees who teach in parochial schools. In this companion case to School District of Grand Rapids v. Ball, ante, p. 373, we determine whether this practice violates the Establishment Clause of the First Amendment.
The program at issue in this case, originally enacted as Title I of the Elementary and Secondary Education Act of 1965, [n1] authorizes the Secretary of Education to distribute financial assistance to local educational institutions to meet the needs of educationally deprived children from low-income families. The funds are to be appropriated in accordance with programs proposed by local educational agencies and approved by state educational agencies. 20 U.S.C. [p405] § 3805(a). [n2]
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 provisions for including special educational services and arrangements . . . in which such children can participate.
§ 3806(a). [n3] The proposed programs must also meet the following statutory requirements: the children involved in the program must be educationally deprived, § 3804(a), [n4] the children must reside in areas comprising a high concentration of low-income families, § 3805(b), [n5] and the programs must supplement, [p406] not supplant, programs that would exist absent funding under Title I. § 3807(b). [n6]
Since 1966, the City of New York has provided instructional services funded by Title I to parochial school students on the premises of parochial schools. Of those students eligible to receive funds in 1981-1982, 13.2% were enrolled in private schools. Of that group, 84% were enrolled in schools affiliated with the Roman Catholic Archdiocese of New York and the Diocese of Brooklyn and 8% were enrolled in Hebrew day schools. With respect to the religious atmosphere of these schools, the Court of Appeals concluded that
the picture that emerges is of a system in which religious considerations play a key role in the selection of students and teachers, and which has as its substantial purpose the inculcation of religious values.
739 F.2d 48, 68 (CA2 1984).
The programs conducted at these schools include remedial reading, reading skills, remedial mathematics, English as a second language, and guidance services. These programs are carried out by regular employees of the public schools (teachers, guidance counselors, psychologists, psychiatrists, and social workers) who have volunteered to teach in the parochial schools. The amount of time that each professional spends in the parochial school is determined by the number of students in the particular program and the needs of these students.
The City's Bureau of Nonpublic School Reimbursement makes teacher assignments, and the instructors are supervised [p407] by field personnel, who attempt to pay at least one unannounced visit per month. The field supervisors, in turn, report to program coordinators, who also pay occasional unannounced supervisory visits to monitor Title I classes in the parochial schools. The professionals involved in the program are directed to avoid involvement with religious activities that are conducted within the private schools and to bar religious materials in their classrooms. All material and equipment used in the programs funded under Title I are supplied by the Government, and are used only in those programs. The professional personnel are solely responsible for the selection of the students. Additionally, the professionals are informed that contact with private school personnel should be kept to a minimum. Finally, the administrators of the parochial schools are required to clear the classrooms used by the public school personnel of all religious symbols.
In 1978, six taxpayers commenced this action in the District Court for the Eastern District of New York, alleging that the Title I program administered by the City of New York violates the Establishment Clause. These taxpayers, appellees in today's case, sought to enjoin the further distribution of funds to programs involving instruction on the premises of parochial schools. Initially the case was held for the outcome of National Coalition for Public Education and Religious Liberty v. Harris, 489 F.Supp. 1248 (SDNY 1980) (PEARL), which involved an identical challenge to the Title I program. When the District Court in PEARL affirmed the constitutionality of the Title I program, ibid., and this Court dismissed the appeal for want of jurisdiction, 449 U.S. 808 (1980), the challenge of the present appellees was renewed. The District Court granted appellants' motion for summary judgment based upon the evidentiary record developed in PEARL. [p408]
A unanimous panel of the Court of Appeals for the Second Circuit reversed, holding that
[t]he 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. . . (1974); Meek v. Pittenger, 421 U.S. 349 . . . (1975) (particularly Part V, pp. 367-72); and Wolman v. Walter, 433 U.S. 229 . . . (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.
739 F.2d at 49-50. We postponed probable jurisdiction. 469 U.S. 878 (1984). We conclude that jurisdiction by appeal does not properly lie. [n7] Treating the papers as a petition for a writ of certiorari, see 28 U.S.C. § 2103 we grant the petition, and now affirm the judgment below.
In School District of Grand Rapids v. Ball, ante p. 373, the Court has today held unconstitutional under the Establishment Clause two remedial and enhancement programs operated by the Grand Rapids Public School District, in which [p409] classes were provided to private school children at public expense in classrooms located in and leased from the local private schools. The New York City programs challenged in this case are very similar to the programs we examined in Ball. In both cases, publicly funded instructors teach classes composed exclusively of private school students in private school buildings. In both cases, an overwhelming number of the participating private schools are religiously affiliated. In both cases, the publicly funded programs provide not only professional personnel, but also all materials and supplies necessary for the operation of the programs. Finally, the instructors in both cases are told that they are public school employees under the sole control of the public school system.
Appellants attempt to distinguish this case on the ground that the City of New York, unlike the Grand Rapids Public School District, has adopted a system for monitoring the religious content of publicly funded Title I classes in the religious schools. At best, the supervision in this case would assist in preventing the Title I program from being used, intentionally or unwittingly, to inculcate the religious beliefs of the surrounding parochial school. But appellants' argument fails in any event, because the supervisory system established by the City of New York inevitably results in the excessive entanglement of church and state, an Establishment Clause concern distinct from that addressed by the effects doctrine. Even where state aid to parochial institutions does not have the primary effect of advancing religion, the provision of such aid may nonetheless violate the Establishment Clause owing to the nature of the interaction of church and state in the administration of that aid.
The principle that the state should not become too closely entangled with the church in the administration of assistance is rooted in two concerns. When the state becomes enmeshed with a given denomination in matters of religious significance, the freedom of religious belief of those who are not adherents of that denomination suffers, even when the [p410] governmental purpose underlying the involvement is largely secular. In addition, the freedom of even the adherents of the denomination is limited by the governmental intrusion into sacred matters.
[T]he First Amendment rests upon the premise that both religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere.
McCollum v. Board of Education, 333 U.S. 203, 212 (1948).
In Lemon v. Kurtzman, 403 U.S. 602 (1971), the Court held that the supervision necessary to ensure that teachers in parochial schools were not conveying religious messages to their students would constitute the excessive entanglement of church and state:
A comprehensive, discriminating, and continuing state surveillance will inevitably be required to ensure that these restrictions are obeyed and the First Amendment otherwise respected. Unlike a book, a teacher cannot be inspected once so as to determine the extent and intent of his or her personal beliefs and subjective acceptance of the limitations imposed by the First Amendment. These prophylactic contacts will involve excessive and enduring entanglement between state and church.
Id. at 619. Similarly, in Meek v. Pittenger, 421 U.S. 349 (1975), we invalidated a state program that offered, inter alia, guidance, testing, and remedial and therapeutic services performed by public employees on the premises of the parochial schools. Id. at 352-353. As in Lemon, we observed that, though a comprehensive system of supervision might conceivably prevent teachers from having the primary effect of advancing religion, such a system would inevitably lead to an unconstitutional administrative entanglement between church and state.
The prophylactic contacts required to ensure that teachers play a strictly nonideological role, the Court held [in Lemon], necessarily give rise to a constitutionally [p411] intolerable degree of entanglement between church and state. Id. at 619. The same excessive entanglement would be required for Pennsylvania to be "certain," as it must be, that . . . personnel do not advance the religious mission of the church-related schools in which they serve. Public Funds for Public Schools v. Marburger, 358 F.Supp. 29, 40-41, aff'd, 417 U.S. 961.
421 U.S. at 370.
In Roemer v. Maryland Public Works Board, 426 U.S. 736 (1976), the Court sustained state programs of aid to religiously affiliated institutions of higher learning. The State allowed the grants to be used for any nonsectarian purpose. The Court upheld the grants on the ground that the institutions were not "‘pervasively sectarian,'" id. at 758-759, and therefore a system of supervision was unnecessary to ensure that the grants were not being used to effect a religious end. In so holding, the Court identified
what is crucial to a nonentangling aid program: the ability of the State to identify and subsidize separate secular functions carried out at the school, without on-the-site inspections being necessary to prevent diversion of the funds to sectarian purposes.
Id. at 765. Similarly, in Tilton v. Richardson, 403 U.S. 672 (1971), the Court upheld one-time grants to sectarian institutions because ongoing supervision was not required. See also Hunt v. McNair, 413 U.S. 734 (1973).
As the Court of Appeals recognized, the elementary and secondary schools here are far different from the colleges at issue in Roemer, Hunt, and Tilton. 739 F.2d. at 68-70. Unlike the colleges, which were found not to be "pervasively sectarian," many of the schools involved in this case are the same sectarian schools which had "‘as a substantial purpose the inculcation of religious values'" in Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 768 (1973), quoting Committee for Public Education & Religious Liberty v. Nyquist, 350 F.Supp. 655, 663 (SDNY 1972). Moreover, our holding in Meek invalidating instructional services much like those at issue in this case rested [p412] on the ground that the publicly funded teachers were
performing important educational services in schools in which education is an integral part of the dominant sectarian mission and in which an atmosphere dedicated to the advancement of religious belief is constantly maintained.
Meek, supra, at 371. The court below found that the schools involved in this case were "well within this characterization." 739 F.2d at 70. [n8] Unlike the schools in Roemer, many of the schools here receive funds and report back to their affiliated church, require attendance at church religious exercises, begin the schoolday or class period with prayer, and grant preference in admission to members of the sponsoring denominations. 739 F.2d at 70. In addition, the Catholic schools at issue here, which constitute the vast majority of the aided schools, are under the general supervision and control of the local parish. Ibid.
The critical elements of the entanglement proscribed in Lemon and Meek are thus present in this case. First, as noted above, the aid is provided in a pervasively sectarian environment. Second, because assistance is provided in the form of teachers, ongoing inspection is required to ensure the absence of a religious message. Compare Lemon, supra, at 619, with Tilton, supra, at 688, and Roemer, supra, at 765. In short, the scope and duration of New York City's Title I [p413] program would require a permanent and pervasive state presence in the sectarian schools receiving aid.
This pervasive monitoring by public authorities in the sectarian schools infringes precisely those Establishment Clause values at the root of the prohibition of excessive entanglement. Agents of the city must visit and inspect the religious school regularly, alert for the subtle or overt presence of religious matter in Title I classes. Cf. Lemon v. Kurtzman, 403 U.S. at 619 ("What would appear to some to be essential to good citizenship might well for others border on or constitute instruction in religion"). In addition, the religious school must obey these same agents when they make determinations as to what is and what is not a "religious symbol," and thus off limits in a Title I classroom. In short, the religious school, which has as a primary purpose the advancement and preservation of a particular religion, must endure the ongoing presence of state personnel whose primary purpose is to monitor teachers and students in an attempt to guard against the infiltration of religious thought.
The administrative cooperation that is required to maintain the educational program at issue here entangles church and state in still another way that infringes interests at the heart of the Establishment Clause. Administrative personnel of the public and parochial school systems must work together in resolving matters related to schedules, classroom assignments, problems that arise in the implementation of the program, requests for additional services, and the dissemination of information regarding the program. Furthermore, the program necessitates
frequent contacts between the regular and the remedial teachers (or other professionals), in which each side reports on individual student needs, problems encountered, and results achieved.
739 F.2d at 65.
We have long recognized that underlying the Establishment Clause is "the objective . . . to prevent, as far as possible, the intrusion of either [church or state] into the precincts of the other." Lemon v. Kurtzman, supra, at 614. [p414] See also McCollum v. Board of Education, 333 U.S. at 212. Although "[s]eparation in this context cannot mean absence of all contact," Walz v. Tax Comm'n, 397 U.S. 664, 676 (1970), the detailed monitoring and close administrative contact required to maintain New York City's Title I program can only produce "a kind of continuing day-to-day relationship which the policy of neutrality seeks to minimize." Id. at 674. The numerous judgments that must be made by agents of the city concern matters that may be subtle and controversial, yet may be of deep religious significance to the controlling denominations. As government agents must make these judgments, the dangers of political divisiveness along religious lines increase. At the same time,
[t]he picture of state inspectors prowling the halls of parochial schools and auditing classroom instruction surely raises more than an imagined specter of governmental "secularization of a creed."
Lemon v. Kurtzman, supra, at 650 (opinion of BRENNAN, J.).
Despite the well-intentioned efforts taken by the City of New York, the program remains constitutionally flawed owing to the nature of the aid, to the institution receiving the aid, and to the constitutional principles that they implicate -- that neither the State nor Federal Government shall promote or hinder a particular faith or faith generally through the advancement of benefits or through the excessive entanglement of church and state in the administration of those benefits.
[For dissenting opinion of JUSTICE WHITE, see ante p. 400.]
* Together with No. 84-238, Secretary, United States Department of Education v. Felton et al., and No. 84-239, Chancellor of the Board of Education of the City of New York v. Felton et al., also on appeal from the same court.
1. Title I, 92 Stat. 2153, was codified at 20 U.S.C. § 2701 et seq. Section 2701 provided:
In recognition of the special educational needs of children of low-income families and the impact that concentrations of low-income families have on the ability of local educational agencies to support adequate educational programs, the Congress hereby declares it to be the policy of the United States to provide financial assistance (as set forth in the following parts of this subchapter) to local educational agencies serving areas with concentrations of children from low-income families to expand and improve their educational programs by various means (including preschool programs) which contribute particularly to meeting the special educational needs of educationally deprived children.
Effective October 1, 1982, Title I was superseded by Chapter I of the Education Consolidation and Improvement Act of 1981, 95 Stat. 464, 20 U.S.C. § 3801 et seq. See 20 U.S.C. § 3801 (current Chapter I analogue of § 2701). The provisions concerning the participation of children in private schools under Chapter I are virtually identical to those in Title I. Compare 20 U.S.C. § 2740 (former Title I provision) with 20 U.S.C. § 3806 (current Chapter I provision). For the sake of convenience, we will adopt the usage of the parties and continue to refer to the program as "Title I."
2. The statute provides:
A local educational agency may receive a grant under this subchapter for any fiscal year if it has on file with the State educational agency an application which describes the programs and projects to be conducted with such assistance for a period of not more than three years, and such application has been approved by the State educational agency.
See also 20 U.S.C. § 2731 (former Title I analogue).
3. In Wheeler v. Barrera, 417 U.S. 402 (1974), we addressed the question whether this provision requires the assignment of publicly employed teachers to provide instruction during regular school hours in parochial schools. We held that Title I mandated that private school students receive services comparable to, but not identical to, the Title I services received by public school students. Id. at 420-421. Therefore, the statute would permit, but not require, that on-site services be provided in the parochial schools. In reaching this conclusion as a matter of statutory interpretation, we explicitly noted that "we intimate no view as to the Establishment Clause effect of any particular program." Id. at 426. Wheeler thus provides no authority for the constitutionality of the program before us today.
4. The statute provides:
Each State and local educational agency shall use the payments under this subchapter for programs and projects (including the acquisition of equipment and, where necessary, the construction of school facilities) which are designed to meet the special educational needs of educationally deprived children.
5. The statute provides:
The application described in subsection (a) of this section shall be approved if . . . the programs and projects described --
(1)(A) are conducted in attendance areas of such agency having the highest concentration of low-income children. . . .
6. The statute provides:
A local educational agency may use funds received under this subchapter only so as to supplement and, to the extent practical, increase the level of funds that would, in the absence of such Federal funds, be made available from non-Federal sources for the education of pupils participating in programs and projects assisted under this subchapter, and in no case may such funds be so used as to supplant such funds from such non-Federal sources. In order to demonstrate compliance with this subsection a local education agency shall not be required to provide services under this subchapter outside the regular classroom or school program.
7. The Court of Appeals held that the plan adopted and administered by the City of New York violates the Establishment Clause. 739 F.2d 48, 72 (1984). Appeals from this ruling were taken pursuant to 28 U.S.C. § 1252. An appeal under § 1252, however, may be taken only from an interlocutory or final judgment that has held an Act of Congress unconstitutional as applied ("i.e., that the section, by its own terms, infringed constitutional freedoms in the circumstances of that particular case") or as a whole. United States v. Christian Echoes National Ministry, Inc., 404 U.S. 561, 563-565 (1972). Because the ruling appealed from is not such a judgment, the appeals must be dismissed for want of jurisdiction. Ibid.
As we have in comparable cases, we shall continue in this opinion to refer to the parties as appellants and appellees in order to minimize confusion. See, e.g., Kulko v. California Superior Court, 436 U.S. 84, 90, n. 4 (1978).
8. Appellants suggest that the degree of sectarianism differs from school to school. This has little bearing on our analysis. As Judge Friendly, writing for the court below, noted:
It may well be that the degree of sectarianism in Catholic schools in, for example, black neighborhoods, with considerable proportions of non-Catholic pupils and teachers, is relatively low; by the same token, in other schools, it may be relatively high. Yet . . . enforcement of the Establishment Clause does not rest on means or medians. If any significant number of the Title I schools create the risks described in Meek, Meek applies. It would be simply incredible, and the affidavits do not aver, that all, or almost all, New York City's parochial schools receiving Title I aid have . . . abandoned "the religious mission that is the only reason for the schools' existence."
739 F.2d at 70 (quoting Lemon v. Kurtzman, 403 U.S. 602, 650 (1971) (opinion of BRENNAN, J.)).