WOLMAN v. WALTER

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Argument of Joshua J. Kancelbaum

Chief Justice Warren E. Burger: We will hear arguments next in 76-496 Wolman against Walters.

Mr. Kancelbaum, I think you may proceed.

Mr. Joshua J. Kancelbaum: Mr. Chief Justice and May it please the court.

I am Joshua Kancelbaum arguing on behalf of appellants.

The appellants in this case are taxpayers of the State of Ohio, who are appealing a decision of the United States District Court for the Southern District of Ohio which upheld the establishment clause validity of Ohio's latest statute which provides massive aid to the non public elementary and secondary education in Ohio.

The massive aid, I referred to amounts to funding of in-excessive $88 million for the biennial.

This case presents variations on the theme explored in 1975 by this court in Meek v. Pittenger, and indeed the statute here challenged which is codified as Ohio, Revised Code Section 3317.06 and which we have generally referred to on a brief Senate Bill 170 was enacted in direct response to this court's decision in Meek v. Pittenger.

At that time, we had an appeal pending before this court from the predecessor Ohio statute which was virtually identical to the one decided in Meek v. Pittenger.

A few days after the Meek decision, this court remanded that appeal on the Ohio law for further proceedings and the response was the repeal of that law and the enactment of the present law.

The current Ohio law provides following programs; Section A: Text Book Loans, Sections B and C: Material And Equipments Loans, Section D: Speech And Hearing Diagnostic Services, Section E, Physician, Nursing, Dental and Optometric Services which incidentally we do not challenge, Section F: Diagnostic Psychological Services, Section G: Therapeutic Psychological and Speech and Hearing Services; Section H: Guidance and Counseling Services, Section I: Remedial Services, Section J: Standardized Test and Scoring Services, Section K: Programs for the deaf, blind and emotionally disturbed, coupled, and physically handicapped and finally Section L: Field Trip Transportation.

It is our contention that acceptance so far as the narrow physically oriented health services are concerned, all of these programs follow the establishment cause.

The essential pattern in this case which differentiates it from Meek v. Pittenger is basically that as far as equipment and material loans are concerned, the present law purports on paper to make these loans to pupils or parents rather than outright loans to the educational institution and in so far as the services are concerned, the services are now dichotomized so that diagnostic services are performed on the Parochial premises as they were under previous laws considered by this court whereas the so called therapeutic services are now moved at least some minimum distance beyond the walls of the non public schools.

Unknown Speaker: Okay, sure, I have that for you?

All of these services, set down on Page seven and eight of your brief that you just run through for us.

All of them, you find violate the religion clauses of the First Amendment, is that your position?

Mr. Joshua J. Kancelbaum: All except physician, nursing, dental and optometric Your Honor, except to the extent that therapeutic services are permitted under this act to be performed on a public school premises as part of the general program applied across the board to pupils in the public and non public schools.

Unknown Speaker: But you do objective F, the diagnostic psychological services.

Mr. Joshua J. Kancelbaum: Yes, Your Honor.

Unknown Speaker: And the speech and hearing.

Mr. Joshua J. Kancelbaum: Yes, Your Honor, those are the two categories of the diagnostic services we object to the speech and hearing and the psychological.

In our judgment, these services are materially different from the other diagnostic services and that they are far more subjective.

They are framed under the law in a very loose fashion which permits a large degree of unrestricted intercommunication between the diagnostician and the person receiving the diagnosis.

So that -- at the risk of skipping ahead for a moment, what we have is -- and the record is clear as far as psychological diagnostics are concerned, interviewing and projective procedures are specifically mentioned in the stipulation and guidelines and so far as these items are concerned what it amounts to is government employees evaluating the attitudes, behavior etcetera of children in a Church School and that this is fundamentally inconsistent with the Establishment Clause.

Non public Education in Ohio as it has been where this court has considered similar types of Statutes arriving in other states, is overwhelmingly sectarian and in fact of some 262,628 nonpublic pupils enrolled in Ohio during the 1974-75 school year.

243,545 were enrolled in the Catholic schools, only 8700 were enrolled in Nonsectarian schools, of 720 non-public schools throughout Ohio only 29 were Nonsectarian.

The Court below determined that although there were perhaps some differences between the conduct of sectarian education Ohio and the profile which appeared in this Court's opinion in Meek v. Pittenger.

Sectarian Education in Ohio was substantially comparable to what this court found to be the situation in Lemon v. Kurtzman and indeed, this Court in affirming the successful challenges by these appellants of previous Ohio, measures to provide sectarian aid in Wolman v. Essex and Grit v. Wolman, which arose on similar stipulated records, in effect held that Sectarian Education in Ohio is subject to the same structures as applied in Pennsylvania, New York, New Jersey and indeed appellees have considered that because of the religious mission of these schools.

They are defending the statue based upon its secularity and not upon any differences between Sectarian Education in Ohio and elsewhere.

Turning to the Material And Equipment Loan provisions.

There are essentially three distinctions between these provisions and the provisions considered by this court in Meek v. Pittenger.

First, there is a clause in the Ohio Statue which says that, 'Materials which are capable of diversion to religious purposes cannot be loaned.'

Secondly, there is the provision which I alluded to earlier that loans are to be made to pupils or parents and thirdly, unlike the previous statues in Marburger and Meek.

The implementation of the Equipment And The Material Loans is to be accomplished with the assistance of publicly paid staff which goes on -- which is authorized to go on to Parochial school premises to do such things as collect, catalog, distribute and store the equipment and materials.

Dealing with the first of these distinctions first, the Divertible To Religious Purposes clause, all that does is put this case in exactly the same posture as far as equipment And The Material Loans are concerned that Meek v. Pettinger was in, when it arrived at this Court, because the District Court in Meek v. Pettinger had already held that the Pennsylvania Act was invalid under the Establishment Clause and so far as it permitted equipment and materials which were capable of diversion to religious purposes to be so loaned.

What this Court did was strike down these provisions and so far as they authorized the lending of materials which was ostensibly of fixed neutral content on its face.

Dealing with the loan concept, the pupil loan concept, we must first commence with the understanding that the very same equipment and materials which were to be loaned loan under the prior Ohio Act which were substantially the same as the equipment and materials which were to be loaned in Meek v. Pettinger are available under this enactment.

The stipulated record contains a list of the items which were furnished under the prior Ohio Act and it is agreed that these same materials except to the extent that the incapable of the diversion clause can have some affect will be loaned again and these includes such items as wall maps, science labs, expensive pieces of electronic equipment.

The point is that we are not simply handing out items which are the functional equivalent of textbooks here and the applicable principle, I think was well set by this Court in its consideration of Committee for Public Education v. Nyquist, when this Court determined that a mere conduit device saying that you are giving or lending the benefit to the pupils or to the parents does not suffice to evade the function and effect of the enactment.

The Meek rationale which is equally applicable to this statute as it was to the Pennsylvania Statute considered in Meek v. Pittenger was that substantial aid and I am quoting from the Meek opinion now, on Page 23 of our brief, part of page seven, I am sorry 657 of the Meek opinion, "Substantial aid to the educational function of such schools, accordingly, necessarily results in aid to the sectarian enterprise as a whole."

This factor does not change whether you call this a loan to the pupils or whether you call it a loan to the schools.

Now, we are left with the necessity of harmonizing this aspect of the case with Board of Education v. Allen and the textbook portion of the Meek opinion.

Part of our burden is of course, to ask this Court to overrule those textbooks decisions, we have always felt that they were not in harmony with the other holdings of this Court under the Establishment Clause but it is not necessary to overrule Board of Education v. Allen to reach this result.

There are practical distinctions between the materials and equipment on the one hand and the textbooks on the other.

First of all, there is a history in Ohio of lending textbooks to public school pupils as well as parochial school pupils, the applicable statute is section 3329.06 where in the Board of Education, treat the furnishing of textbooks of public school pupils as a loan.

There is no comparable statute for the treatment of material and equipment.

In public schools as a loan to the pupils.

No one would ever think of calling these items collective loans to the pupils, a wall map a loan to the pupils, but for the evident necessity of getting around this Court's opinion in Meek.

Unknown Speaker: Mr.Kancelbaum, what is the difference between a geography book and a map?

Mr. Joshua J. Kancelbaum: Your Honor, first of all, I mean for these purposes.

For these purposes if the items such as a map is not given to the pupil to carry or about with him, to perhaps take home, there is something very stretched about the notion of calling it a pupil benefit.

I agree, that it makes still more sense, as far as I am concerned and as far as the clients I represent are concerned to say that the textbook going to the core of religious education also are not be furnished in Parochial schools at state expense but it is not necessary to say that because the distinction remains valid.

Moreover, here we have a case where the statute broadly authorizes all kinds of materials and equipments to be furnished, the State Department of Education passes some guidelines, then throws the matter under the statute to the administrations of 600 and add some local school districts who may consult with the 33 field coordinators in the implementation of the act.

The notion that the pristine distinctions we make here, will find their way in to what is actually done under this act, is I think not consistent with the facts.

Chief Justice Warren E. Burger: (Inaudible)

Mr. Joshua J. Kancelbaum: Excuse me, Mr. Chief Justice.

Chief Justice Warren E. Burger: Can't that await the event so that you can go in to the Federal Courts with a particular textbook, a particular film, a particular functional equivalent of books and show if that one does bear unreligious education.

Mr. Joshua J. Kancelbaum: Your Honor, what I fear, the danger in that would be is that the gravenment of our complaint as taxpayers under Flast v. Cohen is that the expenditure of this money ab initio violates our First Amendment rights.

Now.

Unknown Speaker: Well of course, you are making that claim with reference to the textbooks too so that makes a little difficult to lineate your position.

I mean we have settled the issue on textbooks.

Haven't we?

Mr. Joshua J. Kancelbaum: At least for the time being.

I suppose Your Honor but?

Unknown Speaker: It's quite a while.

Mr. Joshua J. Kancelbaum: But, at least we know that a textbook is a textbook.

Under an act like this all kinds of things are authorized and this gets part and parcel into the concept, that in this case the state has not met its obligation to ensure that religion will not be inculcated and that excessive entanglement will not occur.

When it passes an act which in effect passes the administration to the far-flung local school districts without any policing, without any system of surveillance which of course, would presents its own excessive entanglement problems.

Unknown Speaker: In modern education, just as we moved from something hundred years ago with a slate as a part as big as today it's look like notebook and the piece of your chalk, we moved on to something else, not haven't we moved on from textbooks to the use of close circuit television and movie films and other graphic displays as the functional equivalence.

I think you use the term of textbooks.

Mr. Joshua J. Kancelbaum: Your Honor, I think that the appellees used the term, but the fact is that the statute, first of all, goes far beyond the functional equivalent of textbooks and deals with matters which are historically classroom rather than pupil equipment and secondly I think the argument proves too much because the equipments such as close circuit television can be as readily employed to video cast, a religious show as a secular one.

Unknown Speaker: Well, so, can the textbooks -- can't they, but surveillance takes care of them.

Isn't it?

Mr. Joshua J. Kancelbaum: Your Honor, I think there has been no surveillance in the textbook cases, the Court has made the assumption that the textbooks being of fixed content and secular ones would stay that way.

It hasn't done that on the equipment materials case.

Unknown Speaker: Any of the people who view the matter as your clients do found textbooks being furnished in public schools that were religiously oriented, they would be in Federal Courts rather quickly, wouldn't they?

Mr. Joshua J. Kancelbaum: Oh, Your Honor, if we were to have to take these cases on an applied basis, we would be in Federal Court not only quickly but incessantly and every day and forever, just on the school prayer decisions along, we could be in Federal Court in 88 counties constantly.

It is essential that this Court continue its pattern of making facial adjudications in this area, leaving clear guidelines as to what can and cannot be furnished and making it abundantly clear, the state must when and enact these statutes, ensure the secularity.

The usual burden upon one, was challenging the constitutionality in this area where aid is given by a willing donor to a willing recipient and those who are concerned about the spending of their tax dollars for religious purposes are not parties to the transaction.

The placing of the burden on them to police these enactments, is as far as I conceive, the end of the Establishment Clause in this area.

Unknown Speaker: Mr. Kancelbaum, as I read your brief you do not go so far as to suggest that the Allen case be overruled, do you?

Mr. Joshua J. Kancelbaum: Yes, Your Honor, we have gone that far but we have recognized that in view of the Meek opinion last year, that is asking rather a lot and we have also indicated the ways in which the Allen case can be harmonized.

But I might say it is well.

Unknown Speaker: You are more hesitant than other counsel at times.

Mr. Joshua J. Kancelbaum: Sorry, Your Honor.

Unknown Speaker: Let's say you are more diffident than other counsel have been.

Mr. Joshua J. Kancelbaum: Oh, we would love to have the overrule of Allen, Your Honor.

Unknown Speaker: But if we get all of your problems and your call up to the Chief Justice would be overcome, would they not?

Mr. Joshua J. Kancelbaum: I think many of them would be envied.

Unknown Speaker: Like burning down the house to get rid of the mice.

Mr. Joshua J. Kancelbaum: Well, Your Honor.

I with all respect, I wonder which is the Allen case.

Unknown Speaker: May we come back a minute to materials and equipments and the public schools in Ohio have all of these made available to pupil?

Mr. Joshua J. Kancelbaum: I examined the Title 33 over the weekend looking for this and as nearly as I can determine, it emerges from the general power of the Boards of Education which has this court noted in the Mt. Healthy case recently, is a quasi autonomous body, to acquire personality and to equip classrooms and I might add that the -- should the court desire, I would be most happy to furnish a supplemental memorandum on this point, but there is no comparable statue for the lending of materials and equipment as opposed to text books.

Now, turning to the problem of the on-premises diagnostic services, I would have that remarks the which appellants made considering the psychological services apply at least to an extent, the speech and hearing services as well because the definition in the statue is unrestricted.

There is no requirement that only standardized test be furnished and again the opportunity for abuse is there.

A diminished probability under Meek that Sectarian infusion will take place as an insufficient safe guard and the good faith of these personnel is also under Meek and insufficient item to be relied upon by the state.

Now, when we get to therapeutic services, the position becomes somewhat different.

First of all it is clear that these are services which could not under Meek v. Pettinger, be furnished on parochial school premises.

So the question arises, of what effect is removing them to the three categories of institution which they can be performed.

They can be performed on public school premises, so called public centers, or in mobile units, parked off the premises but close by, in effect to the curb side.

Now, I repeat that appellants do not object to what professor Froined writing in the 1969 Harvard Law Review article referred to in our brief and repeatedly in decisions of this court said, was shared time which -- as he put, it was the limit to which our policy of neutrality toward religion can carry us.

To the extent that this type of therapeutic service program can be affected across the board as part of a genuine general program either in a public school or in a facility which is truly made available for that service to general community of which the parochial school pupils are a part, we do not object.

We do object to public facilities which really are not public facilities at all but are special satellite facilities furnished by the public for the special use of the parochial facilities, in effect public annexes to church schools.

We see a great danger that this is exactly the kind of scheme that this statue engenders.

First of all..

Unknown Speaker: Are you speaking now of a mobile annex or as ballick (ph), when you use the term?

Mr. Joshua J. Kancelbaum: Your Honor, I think that both of those are possible that the term annex applies in equal course to both of them.

The matter is not far fetched, in our brief, I have cited the case of is Moore v. Board of Education, which is an example arising out of Common Pleas Court in real community in Ohio, Mercer county, of a permanent church school annex in which the public school stationed next to the Parochial school and the entire administration of to (Inaudible) client that is the trial judge found, the pupils would no way of knowing when they were receiving services in one on one, and when or what they are were receiving in the other.

Unknown Speaker: Well, let me apply that now to the mobile unit.

Suppose the mobile unit with medical services is going around with Polio inoculations, for example, do you object to that?

Mr. Joshua J. Kancelbaum: Your Honor, I do not object to the Polio inoculations, if they are performed by the medical personnel on the parochial school premises, on the other hand.

Unknown Speaker: The Speech and Hearing, do you think that falls in the same category as inoculation for Polio?

Mr. Joshua J. Kancelbaum: No, Your Honor.

I think that Speech are Hearing Therapy involves an ongoing relationship between the therapist and the pupil which is similar in character to remedial reading, guidance, counseling and what have you and that when that mobile unit parks at the church gates and makes itself available and it is stipulated that while it is parked there, it would be most unusual for that facility to be performing services or anything other than the sectarian school, which it is parked next to, when it is parked there, I think every bit of opportunity for sectarian influence, in that situation that was present in Meek v. Pettinger remains present.

Unknown Speaker: While you are talking about the hearing therapy, you mean something more than now write the numbers you hear in the third column I take it.

An ordinary hearing test certainly does not involve any great intimacy between the therapist and the patient, does it?

Mr. Joshua J. Kancelbaum: Your Honor, what you have described will be classified under this act, not as therapy but as diagnosis.

That can take place under this act on the parochial school premises.

Unknown Speaker: Have you objected that?

Mr. Joshua J. Kancelbaum: Yes, Your Honor, but for definitional reasons, if all that were being given here, were standardized tests, we would have more of a problem with that aspect of the hearing diagnosis.

Unknown Speaker: What precisely is your objection to the diagnostic hearing test?

Mr. Joshua J. Kancelbaum: My objection is that although the, appellees assert that only standardized speech and hearing diagnostic tests are available under this act, that is not spelled out anywhere.

Unknown Speaker: What the district court -- The District Court upheld the act.

Didn't it?

Mr. Joshua J. Kancelbaum: Yes.

Unknown Speaker: Well, if there is a doubt or a presumption, isn't it in favor of the District Count's ruling on that aspect?

Mr. Joshua J. Kancelbaum: Your Honor, I think that's given the query, the record, in this case this court can come to its own conclusion, as the kinds of potentials involved in sectarian advancement and excessive entanglement under this act.

Unknown Speaker: For an ordinary hearing test?

Mr. Joshua J. Kancelbaum: Your Honor, the notion that it is an ordinary hearing test which will be administered under the blanket caption, Speech and Hearing Diagnosis is an assumption.

Unknown Speaker: You want to assume the contrary that they are going to infiltrate -- the Catholic Church is going to infiltrate this and fill the testing process with religious dogma.

That is the assumption you want us to draw?

Mr. Joshua J. Kancelbaum: First of all, Your Honor, I would by no means limit this or even emphasize this as a Catholic problem but.

Unknown Speaker: Well, let us be realistic and that is the largest single group you are talking about.

Is it not?

Mr. Joshua J. Kancelbaum: It is the largest group but it is by no means the only group, Your Honor.

Yes we feel that it is the obligation of the state to ensure that these items are secular.

Thank you.

Chief Justice Warren E. Burger: Mr. Martin.

Argument of Thomas V. Martin

Mr. Thomas V. Martin: Mr. Chief Justice, and may it please the court.

The State of Ohio has included non-public school children in programs providing education materials and auxiliary services since 1967, and although this court in the Meek case, struck down programs providing similar benefits, we did not interpret that decision as prohibiting all programs providing such benefit.

The opinion of self states that the authority in the state to furnish free auxiliary services to all students in the state including non public school students was neither challenged, nor question, and in the later Roemer case, the opinion states that religious institutions themselves need not be quarantined from public benefits, neutrally available to all.

We therefore assume that children attending religious institutions need not be quarantined from such benefits.

The State of Ohio enacted the present statute, in order to conform to the governing constitutional principles set down in the Meek case.

The Pennsylvania program for instructional materials and equipment, loan these materials directly to the sectarian schools.

The opinion explains that the teaching process in these schools was devoted to the inculcation of religious beliefs, aid to the educational functions of these institutions, therefore resulting in aid to the religious functions.

No materials or equipment are loaned to sectarian schools in Ohio.

They are loaned directly to the student or his parent.

Unknown Speaker: Are the students given these big maps?

Mr. Thomas V. Martin: Your Honor?

Unknown Speaker: What kind of maps did you tell about, maps you put up on wall?

Mr. Thomas V. Martin: In our stipulation, we did not stipulate the materials available under the new act will be similar to those under the old act.

The statutory language has changed little bit.

The statute now provides that the loan is to be upon the individual request of the student or the parent, assuming that the State court would construed that broadly enough to permit a wall map.

Unknown Speaker: So you think that if the school gets the parent and the student to say give a school map, that takes it out?

Mr. Thomas V. Martin: Your Honor.

Unknown Speaker: Don't ask me to believe that.

Mr. Thomas V. Martin: Alright Your Honor.

I believe this was passed for the educational value of the student and I believe the educational value to the student would be the same whether he is using a map with other students in a group or whether he is using map individually.

We submit that the most important educational benefit, the text books comes from their group use in the classroom in a particular course.

Unknown Speaker: Is there any allegation that these maps are in some way tainted through the religious dogma.

Mr. Thomas V. Martin: I do not believe there is, Your Honor.

Unknown Speaker: Just continue, I am curious about how this works as a practical matter.

Let's say a big wall map in a fifth grade geography class of 30 students, each one of the 30 is a loanee of an undivided 1/30th interest in the map.

Mr. Thomas V. Martin: Your Honor, if that is how -- it may be that the Ohio Statute as interpreted by the Ohio Courts would not permit that, what would happen if the non-public school authorities would make an application with the personnel from the local school district.

The, if it was administratively approved there and formally approved by the Board of Education, it could be purchased by the local school district, then when there was the need for it, the student would come in and make an individual request for a loan.

If it had been purchased and was in the inventory and was otherwise -- and assuming that it would be proper under Ohio laws interpreted by the State Courts, that would be the loaned then?

Unknown Speaker: To an individual student.

Mr. Thomas V. Martin: Either to an individual student or?

Unknown Speaker: He could take it home every night.

Mr. Thomas V. Martin: In that situation, Your Honor, it might require that it be all the students in the class.

Unknown Speaker: So, then I am right in my first assumption that each one would be the lendee of an undivided 1/30th of the (Inaudible).

Mr. Thomas V. Martin: In that situation, yes, Your Honor.

Unknown Speaker: Then May or June comes and they graduate and go to the sixth grade, do they take the map with them, even if they are finished studying geography?

Mr. Thomas V. Martin: Your Honor, where that map would be stored would be in the determination of the Department of Education.

Unknown Speaker: When does the loan cease and terminate?

Mr. Thomas V. Martin: Well, loan could cease when the map is turned back to the local public school personnel.

Unknown Speaker: Then it's lent again the following year to the students in the fifth grade of geography classes is that it?

Mr. Thomas V. Martin: Assuming that, that is the permitted under State law, yes Your Honor.

Unknown Speaker: Well, that's my question.

What is permitted?

What is contemplated under the State law?

Mr. Thomas V. Martin: We have assumed for the purpose of this case that it is all over Statute is different and the Statute does require the loan be based upon individual request.

Unknown Speaker: Well, it's individual requests and I guess not one student then is the custodian of map for the whole class, is that it?

Mr. Thomas V. Martin: Your Honor, in that situation, I believe it would be right, it would be every student would be the loanee.

Unknown Speaker: Well, then perhaps, probably gets promoted in order to have stated that -- your struggle was with the Meek case isn't it?

Mr. Thomas V. Martin: Yes, Your Honor.

Unknown Speaker: It struggles with this Ohio Statute, isn't it?

Mr. Thomas V. Martin: I don't believe so, Your Honor; we believe though that by making the student the bailee or the individual student, the beneficiary, we have some of the constitutional objections in Meek.

If in Meek, the educational functions and the sectarian functions of the sectarian schools are so inter-related, no way could be given to the educational without aiding the religious, we don't believe that that is true of a loan to the child.

The educational or special educational needs of the school child are different and distinct from the religious nation of the sectarian school he attend.

A child using a modern educational material or device which makes learning more interesting, will receive the same educational benefits from that material whether he attends a sectarian or a public school and a child who is deficient or behind in one or more subjects has the same educational need for a new modern educational material or device which is programmed for his individual study and learning.

As we read the Nyquist case, which the plaintiffs rely on to show that since it could not be loaned to the school, it could not be loaned to the pupil, we believe is readily distinguishable.

We believe that financial assistance is readily distinguishable from forum or aid in the form secular materials.

Aid in the form of the secular materials would go to the child and remain with the child.

Unlike, financial assistance it would not flow to the child, through the school.

In addition, we believe the reasoning in the Nyquist case, supports the validity of the instructional materials and equipments.

In that case, the opinion contrasts Allen and Harrison by saying that the material involved were secular and were provided in common to all students in the State.

In this case, no material which is even capable of diversion to the sectarian use may be loaned and no materials may be loaned unless they are available to the public school students within the district.

Unknown Speaker: Mr. Martin, if Parochial school A, in that of the United States from the part and their child applies.

That matter replaced by the city school, am I right?

Mr. Thomas V. Martin: I assume that's right, your Honor.

Unknown Speaker: Do you have any problem?

Mr. Thomas V. Martin: Constitutionally, I don't Your Honor.

There may be problems whether it would be permissible under this particular Statute, as a matter of State law.

The opinion in Meek states that the constitutional objection to the auxiliary services was that they were provided in a sectarian setting.

In schools, in which the atmosphere dedicated to religion was constantly maintained.

In Ohio, no services auxiliary or medial, or anything which has anything to do with education is performed in a sectarian school.

They are performed in public schools, public buildings or public mobile units and they are performed by public personnel, who are controlled by public school authorities.

We therefore submit that there is no potential in this situation for the teacher to allow the religion to seep in.

Thank you, Your Honor.

Chief Justice Warren E. Burger: Mr. Martin, before you sit down, will either or your colleague discuss the field trips.

Mr. Thomas V. Martin: I believe my colleague will.

Chief Justice Warren E. Burger: Mr. Young.

Argument of David J. Young

Mr. David J. Young: Mr. Chief Justice and the members of the court, I believe I would like to start by commenting that perhaps one of the saddest things with respect to this case is the possibility that if the true character of this Legislation would be obliterated by either a failure on our part to properly explain how it works or on the basis of assumed abuses in administration or assumed illegal applications.

We are sitting here talking about annexes to Catholic Schools or the Lutheran Schools or Jury Schools, when the law permits no such things.

In briefs we talk about buying property from religious organizations and putting a mobile unit on it.

That can't happened under this act and unfortunately we are talking about the loans that don't take place under the Ohio Act because the Ohio Act calls for loans to pupils, materials and equipments that are used by the pupils and they can't be used for any purpose other than secular purpose.

Now, that's what the Ohio Act is all about.

I think, when we properly understand the Ohio Act, it reflects an honest, genuine, response to the concerns in Meek.

I submit to the Court, it reflects a faithful application of the principles enunciated in Meek and of the other, First Amendment cases as this Court has decided in the past decade.

If Counsel is permitted to assume any kind of abuse that they would seep at in a case, no State Statute can stand.

We would submit to the Court that when we talk about the Statute, we must talk about it, as it is described on its face, as we have stipulation of the intended administration and any reasonable inferences that could flow there from.

When we start talking about Speech and Hearing diagnostician inculcating religion, may it please the Court, I believe we are just the beyond the realism into absurdity.

That is not what diagnostic work is all about.

I submit to the Court that there is no significant difference between the function of speech and hearing, a diagnostician and that which they conceived to be the constitutional physician, a nurse, an optometrist, or a dentist.

Let me refer, if I might, Your Honor, to the map situation that has been causing so much difficulty.

First of all, the only kind of maps, as I interpret that are met under this program and I think stipulations would this bear this out, they have to have two characteristics, they have to be lendable to child non divertible to religious use and as we pointed out in our brief, the typical map used today is a map with a cassette.

A child checks out a maps, he checks out a cassette, he plugs in the cassette to ear phone, they explain a to map to him and either the map is already filled out or he fills out the map.

For the benefit of the Court, we have left with the Clerk of this Court, items and equipments that are described in our stipulation, we have left six of them, going from the very smallest to the most sophisticated, and we will submit to the Court that every single piece of equipment or material lend under this act, is not divertible to individual use, is lent to the pupil, and is used by the people.

The aid is secular, it starts with the child and it ends up with the child.

In terms of having difficulty with this Act really meeting the test?

Chief Justice Warren E. Burger: I think you ran over, by the Stewart point, take that map home with him?

Mr. David J. Young: May it please the Court, certainly.

Justice Thurgood Marshall: He takes the map home?

Mr. David J. Young: There is absolutely no reason in the world why he wouldn't take the map home.

Justice Thurgood Marshall: Is that the..?

Mr. David J. Young: Well, surely.

Justice Thurgood Marshall: One of the wall maps.

Mr. David J. Young: Justice Marshall I am not talking about a wall map.

Justice Thurgood Marshall: Well, that's what I am talking about.

Mr. David J. Young: That's why I am suggesting to the Court that the maps.

Justice Thurgood Marshall: Is that the map we are talking about?

Mr. David J. Young: No, I am not talking to Mr. Justice Marshall.

Justice Thurgood Marshall: Then what is the map we are talking about in the record?

Mr. David J. Young: The record, Mr. Justice Marshall has a stipulation of the materials that were lent under the prior program and then it says that with respect to this new program, the materials are limited in two respects, over the prior program.

Some of those listed in there as indicated are no longer able to be used either because they are divertible number one, or they can't be lent to a pupil.

Justice Thurgood Marshall: Well, that it says that specifically that he takes the wall map home?

Mr. David J. Young: Mr. Justice Marshall I don't believe the wall maps are lent to pupils under this program.

The only map?

Justice Thurgood Marshall: Is that in the record?

Mr. David J. Young: It's not in the record one way or the Mr. Justice Marshall.

Justice Thurgood Marshall: Well, it was in' wall maps were included before, weren't they?

Mr. David J. Young: There's absolutely no question because under the prior program, we lent to the school.

Justice Thurgood Marshall: Is that anything in the record that says that wall maps are not included now?

Mr. David J. Young: Mr. Justice Marshall, the record points out that they must, the only thing that can be lent now, is that which is lendable to a pupil for individual use.

Justice Thurgood Marshall: My question, yes or no.

Is there is anything, in the record that shows that wall maps are no longer included.

Mr. David J. Young: Yes, I have to say Mr. Justice Marshall, I would say yes, but it depend on you how would you interpret it.

I would say yes.

Justice Thurgood Marshall: When you say yes, I am going to ask you where in the record?

Mr. David J. Young: Mr. Justice Marshall, I would suggest to you that it is in the record where it is indicated that the only materials are lent under this program are materials lent to pupils and can be used by pupils.

Justice Thurgood Marshall: Did you bring this lawsuit, or did the appellants bring it?

Mr. David J. Young: Mr. Justice Burger, the appellants brought the lawsuit.

Justice Thurgood Marshall: So, but, whatever may be the state of the record with reference to that proof, is responsibility of the appellants, is it not?

Mr. David J. Young: I would submit to the Court that, that is the case.

Justice Thurgood Marshall: Well, are you ready to back up anything and say here now?

Mr. David J. Young: Mr. Justice Marshall, I wouldn;t say it, if I weren't.

Justice Thurgood Marshall: Well, where is it in the record, you said that wall maps are no longer taken home?

Mr. David J. Young: Mr. Justice Marshall.

Justice Thurgood Marshall: Did you say that?

Mr. David J. Young: Yes.

Justice Thurgood Marshall: Well, where in the record is that stated.

Mr. David J. Young: Mr. Justice Marshall, what I tried to point out is that what we have is a list of things that were used when they were lent to the schools under the old program.

The Ohio General Assembly interpreted the Meek decision as indicating that they could be no longer lent to the schools.

Therefore, the classes of the materials and equipments that were lent previously are now limited by the new stipulations, one of them is that it has to lend able to a child.

Justice Thurgood Marshall: Without taking any more of your time, I do not imagine this case is on which side --

Mr. David J. Young: May it please the Court, I hope so, I feel very comfortable if that is the case.

As I indicated previously, there are items of equipments and materials with the clerk's office that are described in the stipulation, the Court can proves and find if they are useable by the child and they are quite clearly secular.

Before I move on to another item, let me suggest to the Court and I know that difficult question was put to Mr. Martin, are you having a difficulty with distinguishing this for Meek in terms of materials.

I would submit to the Court that as I read Mr. Justice Stewart's opinion in Meek, as it looked at the lending of materials and as Mr. Justice Blackmun explained it in Reomer, they looked at three things.

The character of the recipient, the nature of the that which was lent and the resulting relationships.

Looking at these three features, the Court in Meek said, number one, the character of the recipient is a religion pervasive institution.

The material itself is self pleasing and fixed content secular and third the relationship is between the State and religious organizations because it is a loan directly to a religion pervasive organization.

Now, in terms of an honest and genuine response to Meek, if you look at the those same three characteristics with respect to the material and equipment in this case, it is lent not to a religion pervasive institution, but to a child and if we start calling him a religion pervasive child, we have free exercise problems that are beyond this case.

So, in this case we loan the secular fixed content, equipment and materials to a nonreligious pervasive person, a child, a citizen just like anyone else.

Number two, it remains fixed content and secular, it cannot be used for religious purpose and number three, if you want to determine, as Mr. Chief Justice indicated earlier whether there is indeed fact that lending of anything could conceivably be used for a religious purpose that is all you would have to do is check with the treasurer at the local public school district.

He has an inventory of that which has been purchased and that which is lendable, you look at the inventory, you look at the catalogue and it is either divertible or it is not.

So in order to please the Ohio program, the relationship is between public and public.

So I would submit to the court the all three features.

Justice John Paul Stevens: Mr. Young, in your point about no direct contact between the school board and the religious institution and the loan being to the child, is it not correct that all the paper work and processing and the contact is between the school and the school board, they handle these loans on a collective basis and there is no direct contact with the pupil and the school board.

Mr. David J. Young: Mr. Justice Stevens, that is partially correct, there is less contact than there would be in text book case.

Justice John Paul Stevens: It is not in the text books, it is there in the statute.

Mr. David J. Young: Mr. Justice Stevens, in the text book case, it has been approved by this Court, both in Allen and in Meek, there was collective summaries prepared by the religious schools and they pass these summaries on to the public schools so that occurred in both Allen and in Meek.

Now, there is less of that, in this case, because public school determines the equipments that is going to be made available based upon what it makes available to its own children and then the contact between the public authority is when let's say a teacher, we have a child who is behind in multiplication and they would suggest to check out a Rotomatic and this is just a little tube with the program unit and they keep turning it around his questions and answers, the child goes to the clerk librarian and this can either be on the premises or if it is the public school close, he goes there, one or the other.

He goes to the clerk librarian, he checks out the Rotomatic and he uses it for a week and he checks it back in.

Now, when counsel talks about, hey this loan is a fiction, we have pleased the court.

The lending of equipment would certainly be much lesser fiction than the lending of the text book.

The text book, he keep for a whole year and maybe that is the end of it.

All of this equipment is typically, a repetitive drill kind of thing.

You use it for a week, you do not need it any more unless you have used ?

Justice John Paul Stevens: Where does the child get it, from his own school or at the inventories of these equipment kit.

Mr. David J. Young: The statute permits of two different situations, depending on how close the public school is.

He either get it from a clerk librarian who is a public employee, that clerk librarian under the statute can either maintain the inventory at the non public school or at the public school and I suspect it would only be the public school, if it were close by.

If it was the district public school, it would make sense to keep it there.

So it does permit him to be on the non public premises, but when the child check this out with equipment, it is got to be a loan, you do not give a child a rotomatic that he only needs for a week that can be used by hundreds of other children.

Now counsel has suggested there is no lending in the public schools.

I would submit to the Court, that is absurd.

If a child wants to use a rotomatic multiplication machine in the public school, if the public school is going to give it to him, say, this is yours, keep it, when he only needs it for a few days?

It is lent to the child in the public school just like in the non public school, he uses it, he turns it back in and another child uses it.

Justice John Paul Stevens: Ths is the same thing true with the speed reading or the reading improvement equipment.

Mr. David J. Young: Very definitely, Your Honor, the same thing is true.

Almost, all of this equipment that's used -- I know that it is hard for us to visualize it because we did not have it when we were in school, almost all of it is drill, repetitive, tutorial kind of equipment; some kids can use the textbook in the lecture when they catch on.

Most need this assistance and they go back in, and all of its individual use.

Even the machines, only one child uses it.

And it's programmed especially for one child use.

You will see the -- in terms of the equipment, you start out with the smallest little tubes, they call them rotomatics.

They have programmed plastic courses inside and they simply turn and it drills them.

They have a little hand calculator that does the same thing for any of the secular courses.

Then you move to a little machine, where you push button that programs, correct answers at programs how fast you can do it and then you move right on up from the most -- the smallest item until the largest and in response to Justice Marshall's earlier question, some of them you can take on no question about it.

I do not think anyone would suggest to this Court.

Justice Thurgood Marshall: Mr. Young, is this material actually delivered to the school and not to the child?

Is it not what the statute says?

Mr. David J. Young: Justice Marshall, it would initially ?

Justice Thurgood Marshall: Is it not what the statute says?

Mr. David J. Young: Mr. Justice Marshall, it would delivered either to the non public school or the public school and then the child must go to the clerk library and check it out and check it back in.

Justice Thurgood Marshall: So, it's given to the private school?

Mr. David J. Young: Mr. Justice Marshall, very definitely not, it would be given to a public clerk librarian ?

Unknown Speaker: It is given to his custody?

Mr. David J. Young: That's correct.

Justice Thurgood Marshall: But did child go to the public library?

Mr. David J. Young: Mr. Justice Marshall, he either goes to the public library or to non public school depending on where it is kept.

Justice Thurgood Marshall: Well, how did it get to the non public school?

Mr. David J. Young: It would be delivered by the public school to a public clerk librarian who would have an inventory there.

Justice Thurgood Marshall: Well how, did it get to the private school?

Mr. David J. Young: By the public authorities at the local public school district or the purchaser or the seller would deliver it to the public school, they would inventory it, then if it happened to be stored at the non public school, they would give it to the clerk librarian.

Justice Thurgood Marshall: Well how does it get stored in the non public school?

Mr. David J. Young: Either the shipper or the local public school would take it there.

Justice Thurgood Marshall: How will they get it?

Mr. David J. Young: Mr. Justice Marshall, I believed, one ingredient I have not explained about the program, is that they get the same equipment that is available in the public school, okay?

In other words, if -- say that school, if nearby there is a public school, whatever equipment they have that is going to available for the non public school child, same equipment okay?

Now, what a child uses on a given occasion depends on his particular deficiency, if he has a multiplication problem, then what he will check out is a little rotomatic that helps him drill in multiplication.

Justice Thurgood Marshall: Where does he get it from, the child in the private school, he get sit from the private school.

Mr. David J. Young: I respectfully disagree, Mr. Justice Marshall.

Justice Thurgood Marshall: Well that's where the statute leads me.

Mr. David J. Young: Well pardon me, but we read it differently, he gets it from the publicly hired and controlled clerk librarian who has custody of it and checks it in and checks it out, just like going to a library ?

Justice John Paul Stevens: On the premises of the private school, perhaps.

Mr. David J. Young: Perhaps, yes no question about that...

Justice Thurgood Marshall: Oh the public librarian is in the private school?

Mr. David J. Young: It can be Your Honor, can be.

Justice Thurgood Marshall: Look he is there with the books and the maps and everything else, in the private school?

Mr. David J. Young: He can be and there is nothing wrong with that in our opinion Your Honor.

I think basically what we are talking about here are the evils of which the Establishment Clause are designed to prevent.

Unknown Speaker: Mr. Young could you help me back, again on this public clerk librarian, what is it?

How does it in fact work, do they have hire an additional group of people who serve in this capacity and go around to different schools on a fulltime basis, or do they take someone off the private school, if they roam, and that put them on the public school there.

Mr. David J. Young: The administrative program would not permit them to take them off of a private school payroll, they would have to be a public employee and I maybe be going beyond the record but I know as a matter of fact, that there will be no hiring of a private teacher? I do not remember whether that kind of stipulation.

Justice John Paul Stevens: This person be in the nature of a permanent employee, regularly stationed at the private school?

Mr. David J. Young: Justice Stevens, this would depend if there is a closed public school nearby?.

Justice John Paul Stevens: Assume it is not.

Mr. David J. Young: That he would be stationed at the non public school, yes.

Justice John Paul Stevens: Is this something like the school nurse that moves around if they do not need a school nurse five days a week?

Public health nurse.

Mr. David J. Young: That?s certainly true, but Your Honor, except that, if it is a large school with -- other than the rural school, the large school is going to have enough equipment and the children are going to be checking it in and out frequently enough that the clerk would probably have to be there all the time, so I think there would be less mobility and to be honest, in the clerk librarian than there would be the school nurse, I think there would be less mobility.

May it please the Court, I have very little time, let me, I have talked about the materials and equipment, talking just for a moment about the therapeutic personnel.

It seems what Ohio has done, it solved the problems that were created in Earley v. DiCenso and Meek.

It's taken any -- even though there are auxiliary service personnel.

This court has said there is a possibility they would perform education services, so now, they are hired by the public, they are controlled by the public, they are auxiliary personnel and they perform their services at public facilities.

A counsel in, opposing counsel in their brief has suggested even so, they must be, these children must be denied that secular service because they are sectarian children and when they go to that public facility they are going to intimidate the speech and hearing therapist and turn him into a religion teacher.

This particular branch of the argument, I think is perhaps one of the most dangerous assertions that has been made before this Court in any of the First Amendment non public education cases, that has been before this Court in the last ten years.

For now, we have the ultimate, not a religion pervasive school, not a religion pervasive building, but a religion pervasive child, a citizen who is marked because of the fact that he a Catholic or Lutheran, a Jewish or a Christian child and because of that fact and that alone he may not go to a public facility and get the same kind of neutral secular service that any other child in this community.

If that proposition can be adopted, what about the Lutheran parent who gets social security?

We know he does not get it because he is a Lutheran but he happens to be a Lutheran.

I would suggest to the members of the Court, that even though some of the clients I represent, whose children are Catholic, Lutheran, Christian or Jewish, to be sure they get therapy, they get speech and hearing therapy at a public facility, but they do not get it because they are Catholic, or Lutheran or Christian or Jewish, they get it because they are a child in need and they get it because they are a citizen just like any other child and I respectfully suggest to this Court that what we have in the Ohio program is a neutral program of assistance of secular assistance that applies to all in the community and applies alike.

Now to be sure if there is not enough room in the public school facility then the non public school child might get the service in, let us say in a library room rather than a public school classroom, we suggest that makes no difference in terms of Establishment Clause principles.

This court, Justice Douglas in the Zorach case, when the non public school pupils were released from a public school, they go to attend a religious instruction.

Justice Douglas pointed out, the Establishment Clause does not require such hostility that we can make no accommodation whatsoever for these children, so the release time program was approved there, I would suggest that the mere fact, that the Lutheran or Catholic or Jewish child receives his speech and hearing therapy in a library room rather than a public school because the public school does not have room or is not close enough makes absolutely no difference from an Establishment Clause of view point.

I would submit to the Court that I think we have here in this Ohio program first of all we pointed out.

My time is up, I appreciate.

Justice Potter Stewart: Mr. Young, we have not given you time really to address yourself to the field trip transportation provided by section L of the law and I gather from your brief, you rely primarily on the Everson case.

Mr. David J. Young: Justice Stewart, that is correct it is suggested that there would be some additional administrative entanglement with field trip transportation that would not exist in school bus transportation.

We would suggest to the court that there would be far less entanglement that's all we would is a month ahead of time, 'x' school would say, we want to take the same kind of field trip that the public school took.

Justice Potter Stewart: Well is that what it is or might these be field trips to the catholic Cathedral.

Mr. David J. Young: Justice Stewart they are only field trips that are available to the public school.

They cannot be field trips that are not made available to the public school child so they would be the same program and I do not think there would be anymore entanglement and I do feel it certainly, if we can transport to a religious school in Everson that we ought to be able to transport to a neutral scientific or governmental center.

Unknown Speaker: It essentially it's the transportation?

Mr. David J. Young: Yeah it is just simply the transportation and it must be the same just like everything else in the act the same is to public school child thank you.

Chief Justice Warren E. Burger: Very well, Mr. Kancelbaum, you have three minutes left.

Rebuttal of Joshua J. Kancelbaum

Mr. Joshua J. Kancelbaum: Thank Your Honor, it appears to me that adverse counsel, has proved too much with that map example.

When I went to Sunday school we used maps all of the time.

Maps are not like textbooks having a fixed content which is principally useful on a given context.

You can track the growth of and development of Judaism through the diask around the map, you can track the crusades in a sectarian oriented course on a map and this ?

Unknown Speaker: Did you show that in this case, that that was done?

Mr. Joshua J. Kancelbaum: We do not need to show that it was done in this case Your Honor because here we are giving to a 'for use in a religious school an item which is divertible to a religious purpose, the state does not'

Unknown Speaker: The diask around the crusades, have historical significance independently of their religious over time.

Mr. Joshua J. Kancelbaum: Of course Your Honor but in the context of a sectarian school these are useful tools in the teaching of religion and?

Justice Thurgood Marshall: Mr. Kancelbaum, do you agree with me that there is a rare possibility that we decide this case without mentioning maps?

Mr. Joshua J. Kancelbaum: Yes, Your Honor, in fact I recall that you have already decided a map case.

Turning away from the example, the fact is that the statute, the guidelines, the stipulation are all silent as to the notion that only items capable of individual used by pupils are to be loaned.

We think another area where adverse counsel has proved too much lies in the fact that we have before us clearly is the opportunity for the creation of a public lending library in a Parochial school, we think that little argument is involved in stressing the notion, if there is fundamentally inconsistent with the Establishment Clause in this.

Finally, we do not label children as sectarian children because they leave a Church school to go to a secular service off premises.

We simply point out that the place where they are going is not truly a public place, if it's put there simply to serve them and were comparable services available to the public general, or have then a very different matter.

As far as the influence upon the secular personnel is concerned, it is not the little child who is going to create a sectarian influence upon the supposedly secular personnel.

It would be the entire way that the establishment, next to which that mobile unit is parked.

Your Honor, Mr. Chief Justice, repeatedly the defendants in this case have responded the decisions of this Court by viewing them as a challenge to greater ingenuity to a new way to get around the last decision.

We submit that there is nothing surprising under the Establisment Clause that aid to Secetarian schools cannot be funded by the state.

Thank you.

Chief Justice Warren E. Burger: Thank you gentleman.

The case is submitted.