Mitchell v. Helms - Oral Argument

Argument of Michael W. McConnell

Chief Justice Rehnquist: We'll hear argument next in Number 98-1648, Guy Mitchell v. Mary L. Helms.

Mr. McConnell.

Mr. McConnell: Mr. Chief Justice, and may it please the Court:

The Fifth Circuit held that the constitutionality of government provision of educational resources pursuant to neutral statutes depends upon the medium in which the resources are provided.

That is to say, that if it's provided in the form of a textbook or in the form of a public employee providing remedial education services, it is constitutional, but if the... but if similar material is provided in the form of computer-assisted instruction or library books, it is unconstitutional.

I'd like to make two principal points this morning.

The first is that the distinctions of this sort have not... are pedagogically meaningless and counterproductive and have no relation to the principles of the First Amendment, and secondly, that the criteria laid down by this Court in its decision in Agostini v. Felton, 2 years ago, provide a principal basis for resolution of issues of this sort.

The statute at issue here, Chapter 2, was originally enacted in 1965.

It provides for grants to local education agencies through state education agencies for the purchase of educational materials and equipment.

Today, that means principally, in the case of non-public schools, library books, computers, computer software, and an equal per-capita sum per student is provided to the local education agency for all students, no matter what accredited school they attend.

These materials... then the statute provides that the LEA will then purchase secular, neutral, and non-ideological materials and equipment which will then provide for the use of the students at the schools where they attend.

The Fifth Circuit held that... as I said, that the computer-assisted instructional equipment and the textbooks are unconstitutional, relying upon this Court's decisions in the mid... late 1970's, Meek v. Pittenger and Wolman v. Walter.

It is our submission that that is an erroneous decision and that, under the criteria in Agostini v. Felton, this program is entirely constitutional.

Indeed, we don't consider that this case is even particularly difficult because the statute was designed in a particularly careful way providing safeguards that, if anything, go beyond any constitutional requirement...

Chief Justice Rehnquist: Mr. McConnell...

Mr. McConnell: that this Court has laid down.

Justice O'Connor: the Fifth Circuit relied primarily on Meek and Wolman, I gather, in its decision.

In order to find in your favor, do you think we need to overrule those cases here?

Mr. McConnell: Well, Justice O'Connor, I don't think that you actually have to overrule them.

I think that the principle under which those cases was decided has already been explicitly rejected by this Court in Agostini.

The judgment in those cases could be sustained because, if you read the opinions carefully, you will see that the Court presumed in those cases that the statutes were not neutral; that is, it analyzed the cases as if what they were looking at were entirely grants to non-public schools which were disproportionately...

Justice Scalia: But, Mr. McConnell...

Mr. McConnell: religious in nature.

Justice Ginsburg: that was contrary to fact because the public schools were getting those same benefits.

So I can see you saying, yes, you have to overrule those cases, but the kind of distinction that would be made, it seems to me so artificial, whether it's in one statute that covers public and private or separate statutes added together is the same thing?

Mr. McConnell: Well, Your Honor, I'm not going to plead here for keeping Meek and Wolman alive, which I consider to have been decisions that have led to tremendous misunderstanding and mischief in this area and...

Justice Scalia: Indeed, you... you probably would welcome the notion that if you have a statute that is narrowly directed to... to religious schools, but which gives them nothing more than what is already given to public schools under another statute, that is not a... that is not a statute that is narrowly targeted to religious schools.

Mr. McConnell: Yes, I agree with you and Justice Ginsburg on that.

The Court in Meek and Wolman did say the contrary, however, and if this Court prefers to distinguish rather than overrule the cases on that ground, it would be able to decide for us without so doing.

I don't necessarily recommend that.

The three criteria spelled out in Agostini versus...

Justice Stevens: Well, let me just ask you a question on that.

Do you... do you adhere to... subscribe to the fact that there's a distinction between supplanting and supplementing the educational mission?

Mr. McConnell: Your Honor, this statute does contain a supplement/ not supplant requirement which is enforced.

We do not believe that is constitutionally required.

Justice Souter: That's what I thought.

Mr. McConnell: But we also do urge the Court to be... not to treat that as a constitutional requirement.

It isn't really at issue in this case, since it is present, and there are contexts, including earlier cases in this Court, where the...

Justice Stevens: So, in your view, it would be perfectly constitutional for the... in a neutral statute to say we will provide all the computers and all the desks for both public and private schools.

Mr. McConnell: Well, no, Your Honor.

All I would say is that it isn't really necessary for the Court to consider that...

Justice Stevens: But that's the...

Mr. McConnell: here.

Justice Stevens: That's the place where your position would take us, wouldn't it?

Mr. McConnell: Well, that's the place where some earlier decisions of this Court seem to take us... take a reason...

Justice Stevens: Well, I'm... I'm just asking you whether that's... that's where your position would take us because...

Mr. McConnell: No, Your Honor.

Our position is that this statute is constitutional, and whether that particular feature of the statute is constitutionally required is not something I think that the Court should decide in a case where it is not at issue.

Justice Souter: I guess I'm... I'm not sure what... what your answer is to Justice Stevens.

You... you have said, as I understand it, that you don't think that the supplement/ supplant distinction is a constitutionally required distinction; is that correct?

Mr. McConnell: That is our... our submission.

Justice Scalia: Right.

Mr. McConnell: However, but even if it were, this stat... this case would still come out...

Chief Justice Rehnquist: No, but let's... let's...

Mr. McConnell: as we say...

Justice Souter: Let's assume it is not a constitutionally required distinction and, therefore, at least in some categories of aid, there could be a complete supplantation...

Mr. McConnell: Whether there could...

Justice Souter: and I take it that is also your position.

Mr. McConnell: Whether there is a complete supplantation is another question, but whether there might be some degree...

Justice Souter: Well, but if the distinction... if the distinction is not required, then I presume there are certain categories of aid in which the government in effect or categories of supply to... to sectarian schools that the government could take over completely without violating any constitutional norm.

Mr. McConnell: Well, I...

Justice Souter: Maybe I don't understand what you say when you say the... the distinction is not constitutionally required.

Mr. McConnell: Well, it... it... this is not, of course, an either/ or proposition.

There can be questions of degree.

The position I would strongly urge this Court not to constitutionalize, the idea that any time any expenditure by the school is displaced that it becomes automatically unconstitutional.

Justice Souter: Well, that's what...

Mr. McConnell: On the other hand, a complete supplantation might present a different issue.

Chief Justice Rehnquist: Well, what about a situation where the... the county says, well, we're building a new public school and, just in... to be neutral, we're going to build a new parochial school, too, at our expense?

Mr. McConnell: Your Honor, first, I do... I believe so much depends, Your Honor, upon the way a statute is designed, what its...

Justice Kennedy: Well, could...

Mr. McConnell: enforcement mechanisms are...

Justice Breyer: But why...

Mr. McConnell: and so forth...

Justice Breyer: Why don't you... could... could you answer that question?

Mr. McConnell: but I... I strongly expect that the entanglement that would be entailed under such a program would be excessive.

Chief Justice Rehnquist: Well, no, that...

Mr. McConnell: So it's hard for me to imagine...

Chief Justice Rehnquist: Well...

Mr. McConnell: that such a provision...

Justice Kennedy: let's say...

Mr. McConnell: be constitutional.

Chief Justice Rehnquist: there's... we're not going to do anything until we turn this school... the lock or the turnkey job on the school and that's it.

Mr. McConnell: The... the different... may I explain the difference between that and this case?

Justice Kennedy: Well, I hope you will...

Mr. McConnell: Because I think it will...

Chief Justice Rehnquist: get to an answer fairly soon.

Mr. McConnell: Well, I... well, the answer is...

Justice Souter: The Chief Justice often...

Mr. McConnell: I do believe that...

Justice Scalia: encourages counsel...

Mr. McConnell: that would be...

Justice Stevens: to answer yes or no when they can and then explain.

Mr. McConnell: I do believe that would be unconstitutional, Your Honor, but it's hard to say for sure because it would depend to a certain extent upon the nature of the program.

Chief Justice Rehnquist: Well, then doesn't that mean that... that supplant and supplement perhaps do play a role in... in this doctrine?

Mr. McConnell: It may very well play a role, but as an absolute rule, Your Honor, it would be... it would... as... as... if supplement/ not supplant meant that there could be no displacing of any expenditure, however small, that would be a... a very damaging holding.

Justice Breyer: You're... you're talking about...

Mr. McConnell: At the other extreme...

Justice Scalia: supplementing... everybody is talking about supplement and supplant as though that's an easy call.

What... what causes it?

Suppose you... a... if you have a poor religious school that doesn't have... that doesn't have window shades, providing window shades would be supplementing, but if... if it was a rich religious school that already had window shades, window shades would be supplanting?

Mr. McConnell: Your Honor, that is one of many problems.

If supplement/ supplant were... / not supplant were interpreted as an... as an absolute constitutional rule, you would have distinctions among schools...

Justice Breyer: Yes, Mr. McConnell.

Mr. McConnell: and... and a...

Justice Stevens: It may be a very difficult line to draw, but I'm... but I'm really seeking what is your limiting principle.

Is it simply neutrality, or is there something else beside neutrality that limits the amount of aid that the government can give to schools on an equal basis, building schools for both parochial and public.

Mr. McConnell: Well, the three...

Justice Kennedy: What is the limiting principle?

Mr. McConnell: The three criteria, and there's not... neutrality is just one of the three criteria laid down in Agostini.

The other two are that there may not be governmental inculcation of religion, which we interpret primarily as meaning that the materials must be neutral, secular, and non-ideological, and there must not be excessive entanglement.

When...

Justice Souter: But on the Chief Justice's question, every one of those criteria is satisfied.

The... there... there is... there is certainly no doctrinal element in the bricks, and his hypothesis is that the school gets turned over and the government's contact with it ceases at the moment the teaching begins.

So I presume that would be... that would be entirely constitutional.

Mr. McConnell: Again, Your Honor, it may very well be that there are some limitations having to do with total supplantation...

Justice Scalia: Well, what are they?

Mr. McConnell: where the government provides the entire amount.

Justice Souter: That's Justice Stevens' question, and it's mine.

What is your limiting principle?

Mr. McConnell: The facts of this case are so far from that, that they are not very useful and...

Justice Souter: But we'd like to know what the principle is that we ought to bear in mind in... in deciding all of these cases, and I want to know what yours is.

Mr. McConnell: Your Honor, what I would recommend to you is that the... is that the three principal criteria of Agostini be reaffirmed and that the lower courts be asked to evaluate specific...

Justice Souter: No, but that does not...

Mr. McConnell: statutes and circumstances.

Justice Souter: With respect, I don't think that answers our question because it seems to me that in answer to the question a moment ago, in referring to the three Agostini principles, you in effect came up with a scheme which would lead to the conclusion in the Chief Justice's hypothesis that building the school for the... for the parochial school would be entirely constitutional.

You back off from that conclusion, and I understand why you would, but I don't know what your limiting principle is for backing off from it.

Mr. McConnell: Your Honor, as... as the government assumes a larger and larger share of the... of the expenses of the school, the entanglement problems grow exponentially because it...

Justice Souter: There is no entanglement problem in building that school.

That is the hypothesis of the question.

Mr. McConnell: The entanglement comes in the various conditions and limitations that are going to be attached to the use of the school.

Justice Souter: In the hypothesis, the government says here's the school, it's yours.

Mr. McConnell: Your Honor, the government has never simply said here is the school, it's yours.

Justice Souter: Maybe it hasn't, but the Chief Justice just did, and... and that's... that's the...

Unidentified Justice: [Laughter]

Justice Souter: That's the hypothesis of the question.

Mr. McConnell: Well, with respect, the reason I resist the hypothesis is the very purpose of the entanglement doctrine has been as a protection for the autonomy of schools that comes from the types of limitations and conditions that the government typically attaches to its... its grants of aid.

It's the... it's the other side, the protective side of that wall of separation.

To hypothesize that there are no limitations or conditions is contrary to the very theory under which entanglement...

Justice Breyer: Mr. McConnell...

Mr. McConnell: makes sense.

Justice Scalia: it's not going to happen.

Why don't you say it's no good?

I mean, why don't you just say it's no good because you just can't supplement the whole thing?

You're not giving away anything that's ever going to... going to occur in the real world.

Mr. McConnell: It is certainly true that this isn't going to occur in the real world.

Justice Stevens: Yeah, but then what would the difference be between that case and saying we'll just supply the desks and computers?

That would be the same case, wouldn't it?

Mr. McConnell: I don't...

Justice Stevens: You use them any way you want.

We don't want to interfere with the... with the teaching program that you want to administer.

Mr. McConnell: Well, Your Honor...

Justice Stevens: That would be the same case.

Mr. McConnell: of course, the case here is not one in which the computers can be used for whatever you want.

There's specific congressional purposes, narrowly targeted purposes and...

Justice Stevens: But you just told us those were not necessary.

You said that the statute did a lot of things that the Constitution did not require, and I'm still trying to find out what your limit is, other than pure neutrality, and if... if that's the limit, I think the government may subsidize and may avoid entanglement problems by simply saying use the stuff the way you want to and... which would have a lot of merit to it because one of the dangers here is you interfere with the teaching mission of the parochial school.

Mr. McConnell: One of those limitations is, however, excessive entanglement, and you cannot evaluate the entanglement without knowing what the... what the range of limitations and conditions are going to be on the... on the building.

May I...

Justice Stevens: But if I make the hypothesis of...

Mr. McConnell: The building...

Justice Stevens: no regulation whatsoever, whatever we buy or lend to use just as you want to, so there would be no entanglement.

Mr. McConnell: But... but the question is to whom?

That will be to a school.

Well, what is a school?

There will be definitions of what a school is.

Those definitions will include such things as what kind of content it has to do, what kind of... of requirements it has to meet.

It is literally an impossibility to imagine that the government simply says we're going to give you a building and you can use it for whatever you wanted to.

If it did, if you think every American...

Justice Stevens: But do you think it's impossible to imagine...

Mr. McConnell: in the country, a building, I would think...

Justice Stevens: that they would say we'll supply your computers?

Mr. McConnell: I beg your pardon?

Justice Stevens: Do you think it's impossible to assume they might say we will supply all the computers and you just use them the way you want to?

Mr. McConnell: Well, actually, I think that is... that is at least conceivable that, for example, the government could provide a personal computer to every student within certain age groups in America to have at their own home and that there would be no need for entanglement because no need for any kind of limitation on religious use.

Again, that's not the statutory scheme that we have here, and similarly, if the government wanted to give a building to every person in the United States, it would not be unconstitutional to use the building for a... for a church even.

But if the government...

Justice Souter: But as you... as you point out, though, in the real world, there... there are conditions and there will be at least threats of entanglement, and... and as I understand it so far, you've said, you know, there are limits.

In other words, there's... there's a... there's a... somehow there's a point beyond which the government cannot go.

Is that point defined in your judgment entirely by the entanglement concept?

In other words, there's a point in which there's too much entanglement or a threat of too much entanglement?

Is that what defines the point at which something becomes... aid becomes too much?

Mr. McConnell: Well, there are also the other two aspects, including the prohibition on governmental indoctrination of religion, and that's, of course, extremely important as well.

Justice Souter: Right, but... but in... in the... in the practical terms of this case, I take it, it's an... this is really an entanglement issue?

Mr. McConnell: In the practical terms of this case, because we have a supplement/ not supplant provision and we have very rigorous no religious use requirements...

Justice Breyer: No, but we have to police it.

Mr. McConnell: you don't have to reach either of those.

Chief Justice Rehnquist: We have to police it.

Justice Souter: We... we have to police the supplement/ supplant distinction, and I thought that raised the entanglement point.

Mr. McConnell: Well, it does, but... but in... but the entanglement is so minimal when... when what is... when what is at stake is things like library books and computers.

It's not something like teachers or entire buildings where you have to have some sort of elaborate scheme of monitoring.

These are very discrete pieces of equipment that are used for discrete tasks.

It is a... it is a relatively simple and routine matter to know what they're being used for, and so the entanglement problem here is, if anything, less than in other cases where... where this Court has approved the program.

I'd like to...

Justice Ginsburg: Mr. McConnell, the reason limitations questions were asked is your brief goes pretty far.

It even suggests that it might be a violation of the free exercise clause not to give the kind of assistance that's involved here.

Mr. McConnell: Well, Your Honor, there's a political judgment to be made whether legislatures or Congress want to give aid to non-public education.

When government... if the government does make that decision, which is certainly a political judgment we do not claim as a constitutional right at all, there are constitutional limitations on discriminating between secular and religious private schools, and so, if the government were to enact a program which provides money or other sorts of equipment or resources to private secular schools, there would be some free exercise and free speech concerns in... in denying similar benefits to religious schools.

Justice Ginsburg: I read your brief to say if they gave it to the public schools and not these schools.

Mr. McConnell: That is certainly not...

Justice O'Connor: You didn't mean it.

Mr. McConnell: definitely not our position, Justice Ginsburg.

I would like to reserve the remainder of my time for rebuttal.

Justice Kennedy: Very well.

Argument of Barbara D. Underwood

Chief Justice Rehnquist: You shall, Mr. McConnell.

Ms. Underwood, we'll hear from you.

Mr. Underwood: Mr. Chief Justice, and may it please the Court:

This statute is constitutional because it is not only neutral with respect to religion, but also it does not directly support religious instruction indoctrination.

It provides secular materials for secular uses in a way that supplements and does not supplant the existing budget of the school, and I think it's important to recognize that this last requirement applies not only to religious schools, but to secular, private, and public schools as well.

It's an essential feature of this particular aid program.

Chief Justice Rehnquist: Well, you're... you're... when you speak of a requirement, Ms. Underwood, you're talking about a statutory...

Mr. Underwood: Yes.

Justice O'Connor: requirement.

Mr. Underwood: Yes.

I'm describing the statute and explaining that these features guarantee its constitutionality.

This...

Justice Stevens: But I understood you to... your brief to take the position that this supplement/ supplanting distinction is constitutionally mandated.

Mr. Underwood: The supplement-and-not-supplant distinction or something like it is... I wouldn't say... go so far as to say that it itself would always be constitutionally mandated, but it performs the function here of guaranteeing two things, guaranteeing... helping to ensure two things: that the government aid doesn't go to the religious mission of the school and that the aid doesn't become so substantial as to in effect subsidize the whole operation of the school

Justice Scalia: Well, why... why would that be bad?

Suppose... suppose you have a... a state that makes a determination that a certain amount of money per capita, per student, is necessary to provide an adequate secular education.

It enacts a statute requiring all accredited schools within the state to provide that minimum secular education, and then it gives to all schools in the state, both public schools... and public schools the minimum amount of money necessary to achieve that secular education.

And it examines students to be sure that they have gotten that minimum secular education.

Now, that, it seems to me, might well be supplanting instead of supplementing, but all you're... all you're providing is the secular education, which the... which the state has decided requires a certain minimum amount of expenditure.

Why would that be unconstitutional?

Mr. Underwood: Well, the constitutional problem that it would raise is the one that this Court has repeatedly recognized as the separate concern that when so much aid... when the core functions of... of a religious school are subsidized by the government, at some point it becomes impossible to say that it is only the secular function that is being supported, that the aid is...

Justice Scalia: No, but in my hypothetical, the... the state has tried to be careful about that.

It... it... you know, it tests whether you've given a secular education, and it's made the determination for our public schools, which don't give anything but secular education, this amount of money is necessary.

So we're going to subsidize the... the secular education, whatever school you go to.

Now, you want to add something else to that secular education, that's your business.

Do it on your money, but... but we're just subsidizing secular education for everybody wherever they want to get it.

Mr. Underwood: Well, I...

Justice O'Connor: Ms. Underwood...

Mr. Underwood: Yes.

Justice O'Connor: does that bring to mind perhaps this Court's holding in Ball on the Community Education Act?

Do you suppose that's still good law?

Mr. Underwood: Yes.

In Ball... as long ago as Ball and as recently as Agostini, on a number of occasions in between, this Court has articulated a separate principle not only that the... that the money not be itself directly used for... or the money... or the aid in this case because it's not money, it's... it's material that is... that is loaned... that it not be directly used for religious instruction, but also that when it is... when the aid is sufficiently substantial as to in effect support the whole operation of the school, when without it the school couldn't operate, then the fact that the dollars can be by... by accounting assigned only to secular functions isn't sufficient to remove the appearance and the understanding and the fact that the government is in effect subsidizing this school in totality with all its...

Justice Scalia: Is this sort of a mystic appearances problem?

Is that... is that what it is?

Mr. Underwood: Well, I don't think it's mystic.

I think appearances are part of the problem.

I think when the government supports a religious school, without any mysticism involved...

Justice Scalia: The government is paying for the secular education, which is... which is provided in the school.

Mr. Underwood: Well, the government is paying...

Justice Scalia: It... it has made a determination that it costs that much to provide it.

What... what possible constitutional problem is there if it... if a school chooses to add to that something else?

Mr. Underwood: The problem is that at some point while your... while your hypothesis has the number of dollars being... the dollars that the secular part of the education... that would require overturning a long line of this Court's cases holding that the government can't directly...

Chief Justice Rehnquist: I take it, the principle you're talking about... you don't get in a sentence all of the gray areas and the gradations that you might be talking about.

Mr. Underwood: That's... that's correct, but what supplement but not supplant does, it is one mechanism along with the... the array of safeguards in the statute to ensure or to attempt to ensure that the materials are used for secular purposes, and there were... there... there are everything from asking for assurances from the schools to asking... to marking the materials...

Justice Stevens: May I ask one question about the distinction?

Because that is a difficult line to draw.

Supposing a school had 20 students and 20 computers and they got 10 more students.

The enrollment went up, and the government provided the extra 10... this is a parochial school... the government provided 10 more computers.

Would that be supplementing or supplanting?

Mr. Underwood: I think that's a... a... possibly a boundary question.

I would be inclined to characterize that as supplanting because, if the school's position was that it was provided...

Justice Stevens: Everybody should have a computer.

Mr. Underwood: Yes.

Then it would be simply providing the same thing to the additional students.

Justice Souter: Ms. Underwood, I take it, in response to an earlier question, you spoke of secular materials, and just recently, you spoke of the need to monitor even materials that were... were provided, which did not supplant.

Do you think there is a legitimate distinction to be drawn between secular materials that have a... a preestablished content, like a math textbook, and materials like a computer which in effect are neutral, they can transmit anything and be used for anything, for purposes of the monitoring?

Mr. Underwood: Well, they present slightly different issues of monitoring, although, of course, even a textbook with preestablished content can be used by a teacher in a wide variety of ways, including religious ways.

Justice Souter: But at... at some... basically, on the textbook theory, if we follow our prior cases, once the textbook has been screened as having no independently religious content, the government's interest in the textbook constitutionally is over.

I mean, I... and I take it that's your starting point here, too.

Mr. Underwood: Yes.

Justice Souter: But that is not the case for the computer.

Mr. Underwood: That's correct.

Justice Souter: And the reason is?

Mr. Underwood: The reason... the reason is that, on the one hand, one could say that a computer is even more neutral than a textbook, it has no content of its own, and on the other hand, it is capable.

It is readily usable as distinguished from... unlikely to be used for wholly sectarian teaching and the prohibition on that; that is, the prohibition on having it be in support of sectarian teaching is... is necessary...

Justice Souter: And that's why the monitoring is required.

Mr. Underwood: That's correct.

Chief Justice Rehnquist: Well, what if... what if you have a lectern, you know, and you can put a secular book on it or you could put a very religious book on it?

That... that doesn't meant that the lectern needs to be monitored, does it?

Mr. Underwood: Well, I think if lecterns were provided with Title 6 funds, there... I mean, there might well be a restriction that they not be used in the theology classroom or, for that matter, the pulpit of the chapel when... when worship services were engaged in.

Justice Souter: Well, isn't the lectern in effect like the general bricks and mortar prohibition?

You can't build a school, we assume, and I... I suppose you then would have the same issue if you start furnishing the school.

Mr. Underwood: Yes, although a lectern, not being the whole school, but something that's used in an individual class, one could imagine putting a lectern in the chemistry lab and having it be part of the... the furnishing of a chemistry lab that was more elaborate than the school had previously been able to or inclined to undertake and... and be subject to the restrictions that are imposed on those facilities, those...

Justice Souter: Does the government feel that the jurisprudence here would be helped if we started developing, more or less, hard-and-fast categories, like no bricks and mortar and, hence, no lecterns and no desks, but textbooks are okay and maybe other books are okay?

Would that be an approach to what is an almost impossible line-drawing problem?

Mr. Underwood: Well, it might be helpful.

On the other hand, sometimes I think it works better to deal with the laws that Congress and the states actually passed and see what... I mean, there is a general notion here.

There is a general principle that supporting the whole school when it is a religious school is inappropriate and it violates the establishment clause and supporting the distinctively religious functions violates the establishment clause, and item by item, we can assess the aid programs that the states and Congress provide.

Argument of Lee Boothby

Chief Justice Rehnquist: Thank you, Ms. Underwood.

Mr. Boothby, we will hear from you.

Mr. Boothby: Mr. Chief Justice, and may it please the Court:

At stake in this case is our historic commitment to the principle that taxpayers must not be compelled to subsidize the religious education of sectarian schools.

As I've listened to the arguments this morning, I would have to agree with the Secretary's brief, and it encompasses the view of the Respondents, that the supplement-and-not-supplant requirement of Chapter 2 and the provision with reference to non-divertibility are both constitutionally required.

This is in distinction...

Justice Kennedy: Would you give me an example of some supplementation that you think is appropriate under the First Amendment?

Mr. Boothby: I think in the Agostini case, that represents an example where, as the Court clearly pointed out, the Chapter 1 program was a supplemental program.

It was a program that was actually being conducted by the public school under the public school supervision.

The equipment and materials were kept separate and utilized for that supplemental program.

As I understand the debate that took place within the Court on that question was whether you could draw the line between a supplemental program and a general educational program, and the Court indicated that that line could be drawn.

I think it's much more difficult, however, to start drawing the line within the area where it's general education, where these are core educational classes, core educational functions.

Justice O'Connor: Well, the Court has allowed the furnishing of textbooks to students, even though those students... to all students, public and private and parochial, right?

Mr. Boothby: That... that is...

Justice O'Connor: You would accept that...

Mr. Boothby: Yes.

Justice O'Connor: or is that... does that violate the Constitution?

Mr. Boothby: No, I...

Justice O'Connor: Was that decision wrong?

Mr. Boothby: No, I don't think so.

Now, the Court has previously made the distinction there on the basis... on two bases, actually; one, that... that it is not direct aid to the school.

In the Allen case, the Court indicated that it was the understanding of the Court that historically the parents had purchased the books.

So it did not relieve the school of an educational cost they would otherwise have to assume, and there was not a problem with divertibility because the book... books that were furnished were books that could be looked at, in fact, were, in fact, utilized in the public schools, and therefore, there was not a problem of divertibility and it was not...

Justice Stevens: Well, it's fair... it's fair...

Justice O'Connor: Well, yeah.

How about software for particular subjects where you can examine the content of it and don't give it to the school, just maintain the ownership in the public agency, but allow it to be used, or a map?

What's the matter with that if we allow textbooks?

Mr. Boothby: Taking the software... and there are two issues we have to look at... the one issue is whether supplanting, at least in Louisi... in Louisiana, there are standards that are required that a certain amount of software has to be... has to be owned by... or... or within the... in the control of both the public and non-public schools.

Justice Scalia: What about textbooks?

I mean, if you acknowledge the textbook case is okay, you really think that textbooks was... was supplanting or supplementing?

What do you think?

Mr. Boothby: No.

Justice Scalia: The schools didn't have textbooks before?

Mr. Boothby: No.

There...

Justice Scalia: There has to have been supplanting, no?

Mr. Boothby: Well, when I went to parochial school, I had to buy my textbooks, and so it was a cost either to either myself and my parent.

Justice Scalia: Well, everybody who goes to parochial school has to pony up the money to... for the school and... and tuition.

So, I mean, that would apply to all.

Mr. Boothby: As I understand, for instance, in... in the Zobrest case, the question was there as to whether the... the government funding relieved the school of a cost they would otherwise have to assume and with reference... as... as you've just indicated, Justice Scalia, when you went to... to the parochial school, you had to pony up with the amount of money that was necessary in order to provide the textbooks.

So the school was not relieved of any cost they would have otherwise had to have assumed.

Justice Souter: I see.

Mr. Boothby: It was... it was direct aid to... to the parent, and I... and I think the supplement-and-not-supplant requirement that's in Chapter 2 is just another way of saying that we will not give direct aid to the school, but it is permissible to give aid directly to the parent.

I think that's where the distinction is.

Justice Breyer: Well, what is it?

Suppose you said, to go back to Justice O'Connor, that textbooks... that computers today are what textbooks were 30 years ago, and so, really, it's just an application of whatever principle there was then.

You can't get on without computers today in a school any more than you could get on without textbooks, and they can be regulated so that they deal with secular subjects in roughly the same way as textbooks could.

So there's no difference; in other words, QED this case.

What do you say?

Mr. Boothby: Well, I would respectfully disagree with that.

There are two major distinctions between the textbooks and with reference to the computers.

The first distinction is, as pointed out by the brief filed by the National School Boards Association... is that computers are... are... are required to be in the school, and as... as indicated earlier by... by the counsel for the... for the government, those are things that a school has to have to operate.

It is true that textbooks must be used for a school to operate, but as I indicated, as I understand the Allen decision and the decisions that have come down since then, it was determined that that was something that the parents normally purchased.

It did not relieve the school of the... of the cost they would otherwise have to bear.

Justice Kennedy: So, if you... if you have two school districts... or let's say you have two parochial schools.

One buys the texts for the students.

The other makes the students buy the texts for themselves.

That would be a distinction that the government would have to follow in... in... in funding for... in giving textbooks...

Mr. Boothby: It...

Justice Kennedy: in one they could and the other they couldn't?

That doesn't make much sense.

Mr. Boothby: It is a distinction that this Court has previously made, and... and as I've indicated, that would be certainly nothing that would be divertible.

The textbook is not divertible...

Justice Souter: Well, was...

Mr. Boothby: but the computer is certainly divertible.

It can be used for almost any purpose.

Chief Justice Rehnquist: Was Allen the first... the only case we've ever had that allowed the furnishing of textbooks?

Mr. Boothby: Well, I think the Cochran case allowed it, and... and...

Chief Justice Rehnquist: Did that make the point that the parents were paying for the textbooks?

Mr. Boothby: Well, the point was made in Cochran that it... it... it did not relieve the school of a cost of otherwise educating the student.

In fact, I think that's the first time that the Court made that observation.

Chief Justice Rehnquist: How about the cases that have come after Allen?

Have some of them approved the grant of money for textbooks?

Mr. Boothby: To my knowledge, all the cases that have dealt with textbooks have approved that on... on the... on the... on both bases that I've indicated that it did not supplant and that it was not a divertible type of material.

Chief Justice Rehnquist: Well, what... what do you understand the termto mean?

Mr. Boothby: I understand the termto mean generally the same thing as... as... as Your Honor indicated in the Zobrest case that it did not relieve the school of a cost that they would otherwise have to bear in... in the education... the core education of the... of the students that were in...

Justice Scalia: Is this determined school by school?

I'm... I'm not sure how you apply this.

I mean, if one school bought the books and... and charged a tuition that was... you know, you couldn't segregate what part of the tuition went to books or anything else and another school charged a lower tuition, but the parents bought the books, would it be supplanting in one school and supplementing in the other?

Mr. Boothby: No.

I... I would say it should not be.

Perhaps the one basis would be that what is required within the state... for instance, the State of Louisiana requires that a certain number of text... certain number of library books be purchased each year and that they be called out, and... and the interesting thing...

Justice Scalia: Well, so that if a state doesn't require computers and you have a very parochial school in an affluent suburb that does have a lot of computers, you say you could provide computers even though the school already has it?

Mr. Boothby: No.

I think that there's...

Justice Scalia: Well, then you must be doing it school by school.

Mr. Boothby: No.

I think there are certain items that are so fundamental in the operation of a school, such as a library, that you cannot function, you cannot operate a school without...

Chief Justice Rehnquist: I can see that.

Mr. Boothby: having those items, like desks and blackboards and...

Chief Justice Rehnquist: Right.

Justice Souter: What about computers?

Mr. Boothby: I would say the same thing about computers today.

They are basic to the operation of the school, and therefore, like bricks, like mortar, like blackboards, like desks, they must be... they must be provided if you are going to operate a school.

And if the government provides that, then the government is actually supporting that particular school.

Justice Kennedy: So supplant... supplant and supplement means unimportant and important.

The government can't do anything that's important.

Mr. Boothby: No.

I think the government can do many things that are important, but as I understand, our historic commitment is that taxpayers will not be required to... whether they're members or non-members of the faith... be required by... by tax law to contribute to religious education, and certainly, within the schools and Jefferson Parish, we know that they do not separate out religion from the secular classes, and the... the decision for this Court has historically always been that we may not engage in the type of funding that... that provides the aid that may aid both religion and the secular.

But one of the things that I would like to point out is the fact that in this particular case, we are dealing with an applied determination that the law was not constitutional.

It was not constitutionally applied, and we know that... we know in Jefferson Parish, it wasn't just some books that were furnished.

The testimony from the assistant superintendent of schools for the archdiocese that had jurisdiction over these schools testified... and this is on page 63a of the Joint Appendix.

He testified the monies that were allocated for Chapter 2 of state library books were first used, and then if that library wanted additional volumes, then if monies were available, they... they would use those funds.

In many cases, there were no funds available.

They had to rely on the Chapter 2 of the state library in order to furnish their libraries.

Well, that sounds to me like supplanting.

That does not sound to me like a situation where someone is merely supplementing a few additional books.

Chief Justice Rehnquist: Are... are you saying, then, that any aid given directly to the school rather than to students or parents is... is it bad under the First Amendment?

Mr. Boothby: No.

I... I would not go that far.

I think that it is...

Chief Justice Rehnquist: How... how far would you go?

Mr. Boothby: I think it is con... I think it is conceivable that one might in the approp... if the statute was properly drawn and properly administered... make some determination that it is merely supplementing a particular... maybe in a particular field or... or utilizing...

Chief Justice Rehnquist: Well, give me an example of what you think would be permissible in furnishing aid directly to schools.

Mr. Boothby: I think it might be permissible, for instance, to provide some arrangements for musical instruments to be utilized within the school.

That might be supplemental.

I don't know.

Chief Justice Rehnquist: What if they playedon...

Unidentified Justice: [Laughter]

Mr. Boothby: I... I wouldn't have a problem with them paying... playingor any other song.

Justice Scalia: What about school buses?

Mr. Boothby: I have no problem with school buses.

If... if...

Justice Scalia: A lot of schools really couldn't operate unless they... unless they had school buses.

Mr. Boothby: Well, I have no problem with transporting children to and from school.

I do have problems...

Justice Scalia: The buses are given to the school.

Mr. Boothby: Well, I would have prob... well, I think...

Justice Scalia: I mean, just as the children read the books, but the books are given to the school, the children ride the buses, but the buses are given to the school.

I don't see any distinction between that and books.

Mr. Boothby: But as the Court pointed out in Wolman, once you would give the bus to the school, then they could use it for whatever purposes.

They certainly could be utilized for a whole variety of purposes in addition to that which was... which was approved in... in the Everson case.

Justice Scalia: You know, deciding what is... what is supplementing and what is supplanting on an item-by-item basis is so difficult and so hard to do on a generalized basis.

Might it not be better to adopt some rule that, you know, you can provide some aid, but not so much that... that you're effectively enabling schools to... to function which otherwise would not be able to do so?

Wouldn't that be an easier... easier principle to... to follow?

Mr. Boothby: I think it's much easier to follow the principles that at least we have some historical precedent for than to adopt some new neutrality concept where we don't know whether you can build schools or you can buy desks or...

Chief Justice Rehnquist: The historical...

Mr. Boothby: or where the line can be drawn.

Justice Scalia: precedent isn't a very happy historical precedent when it says you can supply maps, but you can't supply globes, and, you know, as Senator Moynihan asked, what if you have a... what... or you can provide books, but you can't provide... you can't provide globes, and Senator Moynihan says what if you have a book that has a... that has a map in it.

You know, the precedent doesn't stick together very well.

Mr. Boothby: Well, of course, the distinction in that case was, again, whether you were relieving the school of a cost they would otherwise have to assume.

Justice Breyer: No, but that... that in and of itself...

Mr. Boothby: In the case of the text...

Justice Souter: has never been a sufficient criterion because, if that were the only criterion, Everson would have gone the other way, I presume, or at least it certainly would in this day and age in which schools by and large have to do a lot of transportation, and if... if that's our criterion, I don't know what it limits.

Don't you think that what we have been doing is... is groping in the direction of trying to identify forms of aid by reference to the risk that they can be used directly for religious teaching?

Is... is that not the reason why we say okay, some textbooks can be supplied, a math book could be perhaps?

It might go to the... to the... to the core function in... of all teaching, but it doesn't have a risk that it's going to be used to... to inculcate religious beliefs.

Anything is possible, but it's not very high.

On the other hand, if you start paying teacher salaries in religious schools in which the very mission of the school includes a religious inculcation, you cannot possibly separate what pays for the religion and what... what does not, and don't you think that we are groping in... in the direction of some kind of a risk of direct religious use criterion?

Mr. Boothby: Yes, I would agree that perhaps one of the most important concerns in reaching a solution to this very important question is whether there is an appreciable risk or a substantial risk that what the government is doing will ultimately result inculcation.

I also think, however, you cannot completely eliminate the concern that the government may through its funding... may not be directly inculcating, but may take over such... such an amount or a certain amount of the... of the... of the cost of the education of the program where all you... where all you have is... is the... left is the prohibition against the teaching in the religion class, and we know that that would not prevent the inculcation of religion in sectarian schools because sectarian schools do not compartmentalize the teaching of religion and they should not.

And that is one of the problems with this particular program, with this particular statute, and with the guidance that I understand that the Secretary has propounded.

As I understand the guidance that is being propounded and what each of the schools... school principals must sign an assurance not to do is to use the items for any kind of sectarian purpose.

Justice Souter: Because those items carry a risk of that kind of use.

Mr. Boothby: That is...

Justice Souter: Library book as a category can include religious books.

Computers can be used, I guess, for religious instruction.

Mr. Boothby: That is correct, but the problem is... is that what you're really doing by those kind of rules is to say to the school, well, while you're teaching religion and you're using the sectar... the government-provided tools, you have to suppress your religious views.

Chief Justice Rehnquist: Well, but the... the school is perfectly free to accept or reject aid.

You know, beggars can't be choosers, and if they don't want this aid because they think they're having to suppress religion, they can say okay, we won't take it.

Mr. Boothby: But... but there is a powerful... there is a powerful argument out there to... to take the aid and compromise your religious views, and that was... that was one of the reasons why Marie Schneider at Catholic and one of the plaintiffs in this lawsuit found the aid to be something that was very distasteful and she felt to be unconstitutional because it would tend to secularize the school...

Justice Breyer: Well, she...

Mr. Boothby: that she supported.

Chief Justice Rehnquist: Well, she should have gone to the archdiocese, not to court.

Mr. Boothby: Well, I think she did that, but found that it was necessary to go to court to ultimately resolve the problem.

Justice Souter: But even... I take it on your argument, even... you know, even if... if we reject the sort of Roger Williams argument that you've... I think it was Roger Williams who first made the argument in this country at least... we would still have a problem simply because we... we assume that there would still be a risk of mixing, and so we'd have entanglement.

Mr. Boothby: That... that is inherent every time that government furnishes aid that goes to something like computers, something like...

Justice Scalia: Science labs would be okay under Justice Souter's theory of identifying things that, you know, can likely be subverted to religious use or not, I guess.

Mr. Boothby: Well, not in the...

Justice Scalia: You could buy little science labs for every parochial school in the country, and that would be all right.

Mr. Boothby: Not in the sectarian school I attended where creation was taught as the... as the... as the origin of life.

I think it would...

Chief Justice Rehnquist: Well...

Mr. Boothby: Might be very difficult.

Justice Scalia: Well, we talk... I mean, yes, I suppose it is possible to do that, but it's pretty remote.

There... there's nothing that you can't use to teach a religious lesson, I assume, absolutely nothing.

If that's going to be your test, then Justice Souter's approach doesn't... doesn't make any sense at all.

Mr. Boothby: I would agree with Your Honor that, for instance, it makes no sense to say that a geography book might be used for sectarian purposes because somebody might pick it up and say, oh, there is Salt Lake City or there is the Vatican or there is some other place that has some kind of religious purpose.

Justice Kennedy: Right, but...

Mr. Boothby: But I...

Justice Scalia: a science lab, you think is a lot different?

Mr. Boothby: Well...

Justice Scalia: I think it's a lot different because it costs a lot more money, myself, but...

Mr. Boothby: I think the science lab may be different, but I am certain about computers where... which is probably the most highly divertible type of item that can ever be utilized within a school.

You can use it for almost any purpose.

Justice Breyer: The... that is, according to your opponents, anyway, that you had 4 years in discovery and searched the files and were unable to come up with one instance anywhere in which the computer actually had been diverted.

I'm interested in your comment on that and also in your comment on the San Francisco case where I think the San Francisco case involved pretty strict control so that the computer would not be diverted to religious teaching.

What... what do you think of that?

Why isn't that satisfactory?

Mr. Boothby: With reference to the computer in... in San Francisco, that was a locked computer, and that could not, as I understand the technology, be diverted to a religious purpose.

The... the remaining problem would be if the Court would find that that was the type of equipment that all schools would ordinarily have to purchase in order to function and whether if the Court continues to agree with the fact that one should not fund in whole or in part what might be termed the secular aspect of the school, but... but with reference to... to the computer in San Francisco, I think it did take care of the divertibility problem.

Justice Breyer: And here... then... then that would be all right.

In your opinion, the program would be like San Francisco.

Mr. Boothby: Well, it might solve the divertibility problem.

It would not solve the supplanting problem, which I still believe...

Justice Breyer: What if you have a supplanting problem?

Why don't you ask the Secretary to do something?

Because under the statute in the regs, that would be illegal if it was supplanting rather than supplementing.

Justice Souter: Oh, it is.

Justice O'Connor: It's...

Justice Breyer: I mean, doesn't the program require supplementing and not supplanting?

Mr. Boothby: That... that's correct.

The problem of it...

Justice Breyer: Well, if that's correct, then if they're doing the opposite, don't you have a remedy under the program to say don't do it, you're not following the program?

Mr. Boothby: The problem of it is... and again, this is an administration-of-the-program case.

As I understand it, Ms. Underwood agreed that it might be a problem if you added a computer because there were more students.

On page 186 of the Joint Appendix of the Immaculata High School in its needs assessment in describing why it needed various types of equipment said: While effective use has been made of the audiovisual materials which have been purchased with Chapter II funds, they must be replaced and updated from time to time

Our enrollment has increased somewhat, so that more students use the library materials and consequently, more audiovisual software is needed.

That sounds to me like supplementing, and the problem of it is...

Justice Scalia: Only if you're right.

Justice Breyer: If you're right, my basic question is you've had 4 years to look for examples of program violation.

The government would say you should have more time, send it back so you can keep doing it, but from the point of view of the statute, if... isn't... why isn't it good enough from your constitutional point of view to say, well, we have a remedy under this statute, if either of these things is going on, diversion or supplementation, and we would assume that the statute corrects for that?

Now, what's wrong with that?

Mr. Boothby: The problem is... is that you have to... you have to find out whether the statute is being carried out in accordance with the way it is written.

The problem is this.

As I understand the guidance that is now given to us by the Secretary in 1999 after the decision of the court of appeals, he now looks to usage logs.

He says okay, you can have usage logs and you'll know whether the computer was... was used properly or not.

The problem in Jefferson Parish, the only two cases where we had usage logs, they mixed the Chapter II and their own equipment together.

So, when you looked at the usage log... and we do have an example of the usage log in... on page 206a and 207a and we find that the theology department had the next-to-the-highest usage out of 3 of the 4 years, but the answer was, well, you don't know whether it was purchased by Chapter II funds or whether it was purchased by school funds, that was the answer that was given to us and...

Justice Scalia: And did you know?

Mr. Boothby: Pardon?

Justice Scalia: And did you know?

Mr. Boothby: How would one know?

We don't know, but the problem of it is, is that the school district couldn't know either.

That's the problem.

They could... they could look at the usage logs and they wouldn't be any more informed.

Justice Scalia: Maybe... maybe they didn't keep records, but I... as I understand it, these things have to be labeled to make it clear that they were the product of these Federal funds and couldn't be used for these secular purposes, right?

Mr. Boothby: Well, in Jefferson Parish...

Justice Scalia: And these... these schools you're complaining of, all... all believe in the Seventh Commandment, I assume.

I think it's the seventh, isn't it?

Mr. Boothby: That isn't the problem, as I understand it.

For instance, there... the... Mr. Lewis who was head of the program in the State of Louisiana, he explained one of the problems was that there was such a major turnover of the people that were in charge of the Chapter II program of the sectarian schools that many times those that were in charge of the program weren't really fully instructed and didn't know.

The insurance is they're only... only signed once every 3 years, and the people that were involved with the program weren't informed.

The second problem was indicated with these 191 books that were furnished and... and returned to us 9 days after our lawsuit was filed, and when we went to one of the teachers, Ms. Cannon from St. Anthony School, her explanation was... she said I would never have ordered those books, and I believe her.

She said, though, we gave the task to a volunteer parent, and she selected the books and I looked to see whether the total was within our allotment.

Justice Ginsburg: Mr. Boothby, all that sounds like faulty implementation that, if only the schools did what they pledged to do, it would be okay, and I thought that wasn't your position.

Mr. Boothby: Our problem is twofold.

First of all, I think it's almost impossible to have certain equipment like computers provided that will not be diverted unless you do have locked computers, but if you have just the normal computer that you can do anything with, hooking into the Internet, I don't know how you're ever going to police the, regardless of the...

Justice Scalia: Well, I'm not willing to assume that without some evidence that there is an overwhelming problem of these... of these religious schools flouting the law.

I'm not prepared to assume that that's a widespread problem that... that invalidates this law.

Mr. Boothby: Your Honor...

Justice Scalia: Now, you say you haven't found any problems.

I'm not willing to posit that there... there is just this widespread problem of... of infraction.

Mr. Boothby: Your Honor, with reference to the Internet, I would agree.

This is not the case to decide that issue.

This case came before Vice President Gore invented the Internet, and I really don't know what the problems might be with reference to the Internet and computers.

I really don't know the answer to that, and I think that case must come later and then we'll find out what requirements are necessary in order to prevent that problem from occurring.

In conclusion, Respondents assert that when the government elects... when the government elects to provide aid directly to and under the meaningful control of church-operated elementary and secondary schools for their core or essential educational functions, it results in an unconstitutional subsidy to pervasively sectarian institutions, and when the aid provided, which consists of government resources, still legally owned by the government is also divertible to religious use by those in possession, the aid program also bears the substantial risk of being used as an instrument to inculcate sectarian doctrine.

Now, as I understand... as I understand the argument of the Petitioners, what they want this Court to do is to adopt a concept which basically says it's...

Rebuttal of Michael W. McConnell

Chief Justice Rehnquist: Thank you, Mr. Boothby.

Mr. McConnell, you have 2 minutes remaining.

Mr. McConnell: Thank you, Mr. Chief Justice.

Essentially, what this case is about is bringing programs of this sort up... up to date, that the Meek and Wolman, the cases upon which the Fifth Circuit relied and the Respondents are mired in the technology of the 1970's and the jurisprudence of the 1970's... since that time, education has changed and this Court's doctrines have changed.

There may very well be limits on... if the government in some hypothetical case which seems politically extremely unlikely were to assume total support for schools, that would mean that the religious elements within those schools are being subsidized by the government, but that has not been enacted.

It is not likely to be enacted.

This Court should take cases one at a time, and when the Congress passes a statute that provides secular, neutral, non-ideological equipment and material for children on a neutral basis, that not only is not a constitutional threat, Your Honors, that is something which is in the finest tradition of the First Amendment because it leaves people free to be able to make educational choices for themselves.

The government then is not subsidizing and it is not favoring religion, but on the other hand, it is not in the rather illiberal position of denying basic technological tools of the 20th century to some children because their parents have chosen religious schools.

Thank you, Your Honor.

Chief Justice Rehnquist: Thank you, Mr. McConnell.

The case is submitted.