Cases by Issue - Parochiaid

Locke v. Davey - Oral Argument

Fri, 09 Jan 2009 14:49:09 +0000

Case:

Locke v. Davey

Media File:

02-1315_20031202-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Narda Pierce

Chief Justice Rehnquist: We'll hear argument now in No. 02-1315, Gary Locke v. Joshua Davey.

Ms. Pierce.

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

To preserve freedom of conscience for all its citizens in matters of religious faith and belief, Washington's constitution limits the involvement of government.

It limits both the ability to regulate religious activities and to fund religious activities.

Chief Justice Rehnquist: Do you think the fact that that provision is in Washington's constitution makes it different than, say, if it were in a... simply in a statute?

Ms Pierce: Mr. Chief Justice, the recognition that this Court has given to a state constitution, as opposed to a statute, is that it is adopted by all of the voters of the state.

However, both the constitution and the state laws are subject to Federal constitutional provisions.

At issue today is our...

Justice O'Connor: Is... is it a program at issue here that provides basically money to the student to be spent as the student wishes?

Is it like a voucher program in that sense?

Ms Pierce: Justice O'Connor, the Promise Scholarship is to be provided to the student for purposes of educational expenses and they're required to use it for certain educational expenses.

The purpose of the Promise Scholarship established by the legislature is to strengthen the length between... the link between K-12 education and higher education, and in a recognition...

Justice O'Connor: Well, I'm just trying to find out how it works, whether it's like a voucher program, you give the money to the student and the student decides how to use it.

Ms Pierce: It... it works like a voucher program to the extent that it's for educational expenses.

I'm not familiar with the specifics of voucher programs, but the student is required to use it for those educational expenses.

It is not, for example, like a paycheck, where a person has those funds as their private funds and can dedicate those to any uses that they choose.

And that's a key point under the Washington constitution, because article I, section 11 says that public funds shall not be applied to religious worship, exercise, or instruction...

Justice O'Connor: How... how many states have similar provisions in their constitutions or laws?

Ms Pierce: It varies, Justice O'Connor, according to the particular provisions.

This provision refers to not using public funds for religious instruction.

We also have a provision that no public funds shall be spent at schools under sectarian influence.

I... I believe it's something in the neighborhood of 36 states who have some provisions relating to use of public funds for religious instruction, but those vary.

Justice Scalia: They were all adopted at about the same time, weren't these so-called Blaine Amendments?

Ms Pierce: Your Honor, this is not the Blaine Amendment.

The so-called Blaine Amendment are those that refer to use of public funds in schools under sectarian control.

That's a different provision of the Washington constitution.

That's article IX, section 4, and that was required by the enabling act that provided for our statehood, but this is a different provision.

It's a provision that was separate and apart, that was debated, that was added to Washington's constitution as a separate provision.

Chief Justice Rehnquist: And was that...

So this was add... this was added after Washington was admitted in 1889?

Ms Pierce: No, Your... Mr. Chief Justice, I'm sorry... it was at the same time of adoption, but it was not the provision that was required by the...

Chief Justice Rehnquist: The enabling.

Ms Pierce: enabling act.

It was not in the original proposed constitution set before the framers.

And during the course of that constitutional convention, that's where this language was added.

And I know, referring to the Blaine Amendments, there's been much made in the briefs of whether or not those amendments stemmed from anti-Catholic motivation.

There's certainly no evidence in Washington that there was any discussion, any evidence of anti-Catholic motive.

In Washington, both article I, section 11 and article IX, section 4, which is... more directly stems from the Blaine Amendment, Federal level, they've always been implemented in a non-discriminatory manner, prohibiting both the practice of any religion of any sort in our public schools, as well as any funding for private sectarian schools.

Justice O'Connor: But what if... what if a state prohibited only the study of theology from a Catholic perspective?

Would that survive?

Ms Pierce: No, Your Honor, we don't believe it would.

But what the state has done here is prohibited public funds for religious instruction wherever it occurs, including in a college...

Justice Scalia: Wait.

How... how do you reconcile that?

That's what I don't understand.

It seems to me that if you say it does not violate the religion clauses to prohibit the use for any religious instruction whatever, you would also have to say that it does not violate the religion clauses to say no public funds shall be spent for Jewish theology studies.

Why... why... I mean, the state is not permitted to discriminate between religious sects, but it's just as much not permitted to discriminate between religion in general and non-religion.

So how can you possibly... I mean, if we say that... that you can do this, it seems to me, we have to say you... you can also prohibit Jewish studies.

Ms Pierce: No, Justice Scalia...

Justice Scalia: Why not?

Ms Pierce: I don't believe that follows.

The line between funds for secular purposes and for religious purposes is a line that's been recognized by this Court in various funding cases and in reviewing government activities.

It's a line that recognizes both the values of the Establishment Clause and the values of the Free Exercise Clause.

Here, simply because the State of Washington is extending those values of the Establishment Clause beyond direct funding into indirect funding does not convert those values into hostility.

There's still the values...

Justice Scalia: It's... it's treating...

Ms Pierce: of protecting religious freedom.

Justice Scalia: it's treating religion differently from non-religion.

You can study anything you like and get it subsidized except religion.

Why is that not violating the principle of neutrality?

Ms Pierce: It is treating religion different from a realm in which religion... religious belief or non-belief does not enter what we refer to as secular studies.

It's...

Justice Souter: You're making the... are you... are you making the... or is Washington making the distinction between training in how to be religious, training as it were in the practice of some... of a religion that leads to the truth, on the one hand, and study about what people believe on the other hand.

I thought that was the distinction, how to be religious versus what religions believe.

Is that the distinction?

Ms Pierce: Yes, Your Honor.

Justice O'Connor: Okay.

Ms Pierce: And that was the distinction I meant to articulate.

Justice Souter: So, I take it, then, if it that's the distinction, you would... you would agree that if Washington funded a school of atheism, but wouldn't fund a school like this one, that there would be a violation of one or both of the clauses?

Ms Pierce: Yes, Justice Souter, because whenever you enter into the realm of faith or belief, 0010 whenever you try to affect someone's belief in that realm, that has been a particularly protected realm of individual conscience, that becomes religious, whether it's non-belief or belief.

It's when you...

Justice Souter: But it's the difference between being religious and studying religion.

That's your line, isn't it?

Ms Pierce: Yes, Your Honor, and I believe that's the Court's line.

It's the line that's been drawn in many of the direct funding cases of this Court, to teach about religion...

Justice Scalia: Can... can you not study atheism under this statute?

Suppose there is a course debunking, debunking all religious belief.

Would that be prohibited?

Would that be funded under this statute?

I don't see any... any prohibition of the funding of that?

Ms Pierce: Justice Scalia, I think when the statute is read in conjunction with Washington case law, and particularly the Calvary Bible Presbyterian Church case, that the definition...

Justice Scalia: What does the statute say?

I don't see how it can possibly apply to that.

What does it say?

Ms Pierce: Well, the statute says that no aid shall be awarded to any student pursuing a degree in theology.

Justice Scalia: In theology.

Ms Pierce: But...

Justice Scalia: Now, is... is a degree in atheism a degree in theology?

Ms Pierce: I believe it would be under the interpretation...

Justice Ginsburg: That would be a question, would it not, for the state supreme court to decide?

It may decide it needs to carry that limitation in order to be compatible with the Free Exercise Clause.

Ms Pierce: I...

Justice Ginsburg: And I think that certainly the Free Exercise Clause answers the question, can you give it to the Catholics but not to the Jews.

So that's... that's not an issue.

Ms Pierce: Yes, Justice Ginsburg, and I think that the Washington Supreme Court would interpret it that way, not only to be consistent with the Free Exercise Clause, but to be consistent with its own state constitutional provision and its purposes, which is to not use public funds for instruction in the realm of faith and belief and...

Justice Scalia: What cases do you cite for the proposition that you're asserting that the... that the Free Exercise Clause or the Establishment Clause applies differently to discrimination between different religions than it does to discrimination between religion in general and non-religion?

What... what cases do you cite for that distinction?

Ms Pierce: What we cite, Your Honor, is that line between the secular and the religious activity.

I believe it's the line that was drawn in the Schempp case, referring to the study about religion versus the study of religion, which is not, in our view, discrimination in the classic sense of that word.

Justice Scalia: No, but that doesn't... that... the issue there was whether you were discriminating against religion or not.

And since you are not prohibiting study about religion, that isn't the question here.

The question is, assuming you are discriminating between religion and non-religion, you can't study theology but you can study anything else, what is there in our cases that says that is okay, although it would not be okay to distinguish between Jewish studies or Catholic studies or Protestant studies and other studies?

I don't know a single case that says the principle of neutrality somehow applies differently so long as you're discriminating against all religion than it does when you're just discriminating against one denomination.

Did you have a case?

Ms Pierce: Well, Your Honor, in the context of this Court's aid to education under the Establishment Clause, and Mitchell v. Helms is a classic example, there's a distinction between providing materials, educational materials that are to be used in secular education, as opposed to those materials that might be diverted to religious, ideological education and...

Chief Justice Rehnquist: But that's... that's the Establishment Clause, isn't it, in Mitchell against Helms?

Ms Pierce: Yes, it is, Your Honor, and... and we believe the same... many of the same values underlie the Washington constitution.

And we don't believe that the distinction is made invalid because it is extended to indirect funding and doesn't apply only to direct funding.

Justice Kennedy: Well, I wanted to ask you about these values.

As I understand, this student could have done exactly what he in fact did if only he did not declare a double major.

He could have taken all of these religious perspective courses, if only he'd called his major business administration, which in fact it was because he had the credits for that, too.

That would have been permissible.

Is that correct, or am I incorrect?

Ms Pierce: Well, the statute focuses on whether a student is pursuing a degree in theology and... and...

Justice Kennedy: If... suppose that he pursued a degree in business administration and yet, ancillary to that or as options, took all of these other courses.

Could he have had the aid that he seeks?

Ms Pierce: Yes, Your Honor, we think that could have happened, but it's an unlikely...

Justice Scalia: All right.

Justice Kennedy: What is the state's interest in denying him aid simply because he declares a double major?

Ms Pierce: I believe the reason the legislature has focused on the nature of the degree program is because it's an inherently religious program, and if they were to...

Justice Kennedy: What is the state's interest in denying him funds simply because of the way he labels the major he chooses, if all the other instructions, all the other elements of the case are the same?

He takes all the same courses, he has all the same commitment as a Christian, and yet he's denied the relief in one case and given it... the subsidy in one case, and given it in the other.

What is the state's interest in doing that?

Ms Pierce: Justice Kennedy, I think the state's interest is not in that particular student, but in how you administer it overall.

And the way the state administers it overall, in order to avoid a class-by-class, student-by-student determination, is to look at the degree programs that are inherently religious that have, or ask the universities actually to do that...

Justice Ginsburg: Ms. Pierce, I thought that the...

Justice Kennedy: Well, what is the state's interest in... in denying aid for programs that are inherently religious?

What is that interest?

Is it a compelling interest?

Ms Pierce: Yes, Your Honor, we believe it is.

The interest is...

Justice Ginsburg: May I ask you just to clarify what I thought was the purpose of this, was that the state has decided it does not want to fund the training of clergymen, and it cites a long history of that.

And it's tried to be as accommodating as it can with that limitation.

I mean, certainly if what you're doing is vulnerable, it would be no less vulnerable if the state said, well, we won't fund that school at all because it's an evangelical school.

Ms Pierce: Justice Ginsburg... excuse me... the focus is on the religious nature of the instruction.

If someone had a career goal to enter the clergy and yet took a secular course of education, they would not be denied funding.

Certainly one of the underlying values of our Freedom of Religion Clauses at the Federal and state level is not to require people to support the promotion of a doctrine or religious belief with which they may not agree, and that, returning to Justice Kennedy's question, is... is the interest.

The way it's implemented by Washington, and it has been by Congress and by other states in other contexts, is to look at that core course of study because...

Justice Kennedy: But we've decided in Witters that it's unnecessary to do that to conform to the Establishment Clause.

Ms Pierce: Yes, Justice Kennedy...

Justice Kennedy: So, after... after that, then what is the state's interest at this point?

Ms Pierce: Well, the state's...

Justice Kennedy: Is the state's interest in redefining the Establishment Clause?

Ms Pierce: No, Your Honor, but the state has a different, although somewhat concurrent, scheme for religious freedom, and that involves not just avoiding a government endorsement of religion, which is what the Establishment Clause primarily turns and focuses on...

Justice Kennedy: But Witters said there is no endorsement.

Ms Pierce: And... and...

Justice Kennedy: So you can't use that.

Ms Pierce: No, and I'm not trying to.

Justice Kennedy: I still don't see what your interest is, and once you do define it, I want you to tell me if it's compelling, rational basis.

Ms Pierce: Okay.

Washington's interest expressed in 1889 was to protect the freedom of conscience of all its citizens, and that included not compelling its citizens to provide enforced public funds to support the promotion of religious beliefs with which they may or may not agree.

I think...

Justice Scalia: Does that mean that the state can decline to provide fire protection to churches and synagogues?

Ms Pierce: No, Your Honor, and that distinction has been made.

Justice Scalia: And Washington doesn't do that, does it?

Ms Pierce: It does not decline that, and there's...

Justice Scalia: So that... that general public benefit is extended to both religious and non-religious institutions equivalently, and people don't get upset about that, do they?

Ms Pierce: No, Your Honor.

I think providing the essential services that include people as part of our civilized community has been distinguished from other kind of funding when these questions are asked.

Justice Souter: Well, Washington's position, I take it, is that, although it... it will certainly put out the fire in the church, it won't spend money for the purpose of persuading people that they ought to be inside the church.

Is that the... the point you're making?

Ms Pierce: Yes, Justice Souter.

There is a distinction there and it's a distinction that's been made in a variety of contexts, but...

Justice Souter: And you're saying that even though it would not offend the Establishment Clause if the state did provide this sort of funding, there is still, I think your point is, there is still an area within which it has a choice, even though that choice may not be determined by the Establishment Clause?

Ms Pierce: Yes, Your Honor, because the purpose of the state constitution, which of course, when it was adopted in 1889, was not viewed as greater than the Establishment Clause, it was viewed as the only protection for religious freedom at the state level, since it wasn't until 1947 that the Establishment Clause was held to apply to the states.

And to return to your question, Justice Souter, the distinction between providing police and fire services to an organization and providing funding to assist in the educational purpose of that organization was made in Norwood v. Harrison in this Court.

In the very different circumstance, but for... for similar reasons, this Court held that textbooks could not be provided to segregated schools because that would aid the discrimination of those schools in violation of...

Justice O'Connor: Well, isn't that an Establishment Clause issue?

Ms Pierce: In that particular...

Justice O'Connor: It's been litigated under the Establishment Clause, right?

Ms Pierce: The provision of the... the aid...

Justice O'Connor: Providing textbooks or other aid to religious schools.

Those have been Establishment Clause challenges, and we had a... the Witters case from your state, and determined that the Establishment Clause is not violated by giving aid to the blind, which is used then to study for the ministry, right?

Ms Pierce: Yes, Justice O'Connor, and that's because under the Establishment Clause, the question is, is the government endorsing religion?

Under Washington's article I, section 11, the question is, is... are public funds being used for the promotion or... of religious belief or disbelief and...

Justice Souter: But do you... do you think that...

Ms. Pierce, may I ask you a question there on how you draw the line?

Because I want to get clear on one thing, and it was raised in effect by the questions earlier about the Blaine Amendment, I guess, but is my understanding correct that the State of... that this clause that we are dealing with here, and nothing else for that matter in the Washington law, forbids the state from paying... we'll call it a tuition voucher here... that is going to a sectarian school like this one, so long as it's not being used for theological education?

Ms Pierce: Justice Souter, there's a distinction in our state constitution...

Justice Souter: No, but isn't the answer, there is nothing that forbids that?

In other words, going back to Justice Kennedy's question, if this same student said, I want to study business and I want to study it at this sectarian school, there would be no impediment in Washington law to paying him the... or giving him the voucher or whatever you call it and letting him spend it at this sectarian school?

Is that correct?

Ms Pierce: That's true at the higher education level.

Justice Stevens: Okay.

But isn't it also true he could even take the same courses and get it as long as he didn't declare his major until he was a junior?

Ms Pierce: Your Honor, we... the statute says pursuing a degree in theology, so I think it should be properly read and is properly read by Northwest College as a student who is, during the academic terms that are funded, working toward that degree in theology.

Justice Stevens: But I... I just want to be sure I understand how it works in response to Justice Kennedy's inquiry.

Is it not true that he could have taken all or most of the religious courses he did take if he'd only declared a different major or postponed the time when he declared his major?

Ms Pierce: I believe he...

Justice Stevens: Which has a double aspect.

In one hand, as Justice Kennedy points out, the state interest doesn't seem all that compelling there, but on the other hand, the burden on him is also pretty slight, because all he had to was take a... just manage his curriculum a little differently.

Ms Pierce: Yes, Your Honor.

I...

Justice Stevens: And... and I just want to know, am I correct that he could have taken either all or substantially all of the religion... religious courses and qualified for the scholarship if he just declared a different major?

Ms Pierce: You're partially correct, Justice Stevens.

I think he could have taken some of the same religion courses.

I don't think just simply declaring your major later is what meets the purpose of the statute.

The statute says are you pursuing...

Justice Ginsburg: Wasn't he counseled... wasn't he counseled specifically by the school to be honest?

Ms Pierce: Yes, Justice Ginsburg.

Justice Ginsburg: And not try to hide what his purpose was, which he was perfectly open about?

Ms Pierce: Yes, Justice Ginsburg.

Chief Justice Rehnquist: And, of course, if... if you take a whole bunch of religious courses, it may be they can't be counted for some other major other than the... the theology.

Ms Pierce: Well, the theology degree, Your Honor, does require, I believe at Northwest, 125 credits, and 79 of those credits are required to be in various Bible and theological courses, so I think it is... it would be possible, but unusual, for another student to have those same courses and not being pursuing a degree in theology.

Justice Breyer: Could we go back to Justice Kennedy's second part of what he was asking, because it's bothering me, too.

I think it's absolutely well-established, whether there's a case or not, that people have thought it's different when what the Federal government or state government says is, what we have here is a secular program, we're paying for secular programs, whether it's schools or social services or any one of a million things, or if it were to say, well, it's a Baptist program, but not a Catholic program.

I think if they said the second, they'd have to pass something like strict scrutiny as far as their reasons are concerned.

I think if they said the first, so far I don't think they would have to pass anything like that kind of test, but that's the question.

And I think that Justice Kennedy was saying, very well, what is the test?

What kind of scrutiny should you give under the Equal Protection Clause, where what the state has done is said we have a secular spending program.

Now, leave the atheist, because if the atheist is a program which concerns principles that in the mind of the atheist are similar to those that are religious in the mind of a religious person, I'm willing to call that a religious program.

That's not what I'm talking about.

I'm talking about just a regular secular aid program.

What do we judge that distinction on the basis of?

What kind of a test?

Ms Pierce: Justice Breyer, I believe it is a rational basis test, that is, it is a neutral line, it's a recognized line between the secular that does not involve the realm of belief and faith, and a religious that does.

Chief Justice Rehnquist: I didn't think this was an Equal Protection Clause case at all.

I thought it was... the challenge was freedom of religion.

Ms Pierce: Yes, Mr. Chief Justice, it is, and...

Justice O'Connor: The Free Exercise Clause of the First Amendment?

Ms Pierce: That is the question on which cert was granted, and...

Justice O'Connor: Right.

Ms Pierce: because it is a neutral line...

Justice Breyer: Well, I'm thinking of free exercise, but I'm thinking this is a discrimination case, so maybe it's totally different under free exercise, but you see the question.

Ms Pierce: Yes, and Justice Breyer...

Justice Breyer: And your answer's rational basis.

Ms Pierce: Yes.

Justice Scalia: Rational... you... you think there's a difference in free exercise if what the state says is, we are burdening the free exercise of all religions, as opposed to, we are burdening the free exercise of one particular religion.

You think there's a different... a different standard?

Again, I would ask for the case that... that suggests that.

Ms Pierce: Justice Scalia, in the first instance, this case involves application of public funds in a funding program, and we believe that the principle that a state's decision not to fund the exercise of a fundamental right is not a burden on that right, it's not an infringement on that right.

All that the State of Washington has done here is decline to fund theology studies...

Chief Justice Rehnquist: Certainly in our... in our Rosenberger case there was a rational basis for what the University of Virginia did, but we held it violated the Free Exercise Clause.

Ms Pierce: Yes, Mr. Chief Justice, and the purpose of the public forum principles that were applied in Rosenberger are to protect the open public forum.

There the Court specifically acknowledged that that was a forum for the publication, for the expression of ideas, and that the expression of those ideas in that open public forum would be incomplete if certain viewpoints were excluded.

But certainly the purpose of the Promise Scholarship is not to open a public forum.

It's more akin to the American Library Association case, where Internet access was provided, not to provide a forum for the Web publishers, but to promote education and learning.

Justice Kennedy: You think there is a... a rational basis suffices for the state to prohibit this student from declaring one of his legitimate majors?

Ms Pierce: We believe... yes, Your Honor, we believe there is a rational basis to not fund religious instruction wherever it occurs, including a theology course.

Justice Ginsburg: Is it essentially your position that not everything that is compatible with the Establishment Clause, not everything that the state could do under the Establishment Clause, it must do under the Free Exercise?

And if that's your position, how do you define the space in between those two where the state has a choice?

Ms Pierce: That is our position.

We don't think states should be in constitutional pincers where whatever they're allowed to do under the Establishment Clause or required to do, particularly given the history that states have come to their own path to religious freedom.

And I think applying the various principles on when you burden the exercise of religious freedom leads you to the latitude in this area.

Here, not providing funding does not infringe or burden a fundamental right, and that's all that the state has done.

Mr. Chief Justice, I'd...

Argument of Jay Sekulow

Chief Justice Rehnquist: Thank you, Ms. Pierce.

You're reserving your time.

Mr. Sekulow.

Mr. Sekulow: Mr. Chief Justice, and may it please the Court: In the free exercise context, this Court has held that the minimum requirement of neutrality is that a law not discriminate on its face

That's clearly what is taking place here, and I'd like to put in context exactly how the implementation of the statutory program works.

Washington, when they adopted the Promise Scholarship program and how it's applied, works this way.

A student applies for this general grant.

In this particular case, Josh Davey applied for the grant when he was aware of it in the summer, was notified by the state that he was qualified and accepted in the program in August.

At that point he enrolled at Northwest College, which is an accredited and eligible institution.

It was not until... and he declared his major, the dual major, at that point in business administration and the pastoral ministries degree.

Two months later, it was two months until he was notified by the financial aid office through a memorandum that the state circulated that after reviewing the Promise Scholarship program, the state then decided that in fact there would be a prohibition put in place on pursuing a degree in theology and that state has interpreted that to mean pursuing a degree in theology from a religious perspective.

The check, Justice O'Connor, is sent directly to the student.

The school is the... in the sense the school gets the check and hands it to the student.

It's not written to the school.

The school cannot use it for... to... a private institution cannot use it at all for any expenditure.

They can't credit, they can't debit the account.

The school merely verifies that the student's enrolled.

The check then goes to the student.

It can be used for any...

Justice O'Connor: So it wouldn't violate the Establishment Clause, but I guess what we're addressing is whether there's a free exercise violation.

Mr. Sekulow: Right.

Justice O'Connor: How does this violate the student's right to free exercise of religion?

Maybe it's more expensive to go to school, but why does that violate his free exercise of religion right?

Mr. Sekulow: Joshua Davey, and the state has acknowledged this, of course, has the free exercise right to pursue a degree in theology.

The question here is the burden that's placed on it.

Of course, two responses.

With regard to the actual burden, here a general benefit was available to a student and a religious classification was utilized to deny the student access to those funds.

He met the criteria.

Justice O'Connor: Well, let me ask you this.

Mr. Sekulow: Sure.

Justice O'Connor: Suppose a state has a school voucher program such as the Court indicated could be upheld in the Zelman case.

Now, if the state decides not to give school vouchers for use in religious or parochial schools, do you take the position it must, that it has to do one or the other?

It can have a voucher program, but if it does, it has to fund all private and religious schools with a voucher program?

Mr. Sekulow: No, I think...

Justice O'Connor: Is that your position?

Mr. Sekulow: No.

The state...

Justice O'Connor: Well, why not?

I mean, why wouldn't it follow from what you are saying today?

Mr. Sekulow: For this reason.

The state can set neutral and eligible criteria for admission as an eligible institution.

Here it was accreditation.

Now, if the religious school, the school that was affiliated with the religious denomination met the general neutral eligibility requirement, and there was no countervailing Establishment Clause problems, yes, then it should...

Justice O'Connor: I... I don't know what you mean.

The state says all schools were going to have a program to give vouchers for use in all schools of a certain grade level, assuming the teachers are qualified to be teachers.

Mr. Sekulow: That...

Justice O'Connor: Can they refrain from making that program available for use in religious schools?

Mr. Sekulow: I... I would think not.

I think once it would go towards the private schools, as long as the eligibility...

Justice O'Connor: So what you're urging here would have a major impact, then, would it not, on... on voucher programs?

Mr. Sekulow: Well, it would.

I think a voucher program could be established that has a neutral criteria and if the private schools meet that criteria, including the private religious schools and there is no countervailing Establishment Clause problem, I wouldn't see any reason...

Justice Souter: Well, but the only criteria that they have...

Chief Justice Rehnquist: Sure... surely, the state can decide to fund only public schools.

Mr. Sekulow: Absolutely.

Chief Justice Rehnquist: And it's only when it starts funding some private schools that you get into the religious question.

Mr. Sekulow: That's correct.

Justice Kennedy: But I'm... I'm concerned...

Justice Stevens: But you say if they publish any private school they must publish... they must support all religious schools as well.

Mr. Sekulow: No.

Again, I think if they meet the accreditation standard, if the program were to...

Justice Stevens: But they could not just say we... we will publish all private schools except sectarian schools.

Mr. Sekulow: I don't think they could do that.

No, I think it would be...

Justice Breyer: That's the issue here, yeah.

Justice O'Connor: Even though there... there are quite a few state laws and constitutional provisions around the country that... that provide just that, aren't there?

Mr. Sekulow: There are.

Thirty-seven states have...

Justice Kennedy: Yeah.

Justice O'Connor: So the decision here could have very broad impact, I assume.

Mr. Sekulow: Interesting, Justice O'Connor, and admittedly, this is a bit of a moving target because state policies change, but there are approximately 37 states that have this type of amendment.

Twenty-five of those states have programs of aid that do not have a discriminatory basis upon religion.

It's given to any accredited...

Justice Souter: Mr. Sekulow?

Mr. Sekulow: Yes.

Justice Ginsburg: May I ask you the question that I asked Ms. Pierce, because I think this is really what the case turns on.

Is there any space between what one, what a state is permitted to do, what it's permitted to fund under the Establishment Clause and what it must fund under the Free Exercise Clause, and if so, what fills that space?

You've been candid in saying voucher, no.

If you... going to give to any private school, you can't leave out the parochial schools.

You certainly said that about this program.

Mr. Sekulow: Yes.

Justice Ginsburg: Suppose the... the state would say, we are going to fund professional education, lawyers, doctors, architects, engineers, but we're not going to fund people who are... who are in a divinity program.

Would that qualify or would that fall also?

Mr. Sekulow: Well, I think a program that were to just limit it to specific professions would not necessarily have to go towards theology.

For instance, in a lot of states using that example, Justice Ginsburg, there is a shortage of nurses right now.

And if the state were to adopt a program to fund education for nurses that included public and private schools, they don't have to bring theology...

Justice Ginsburg: No, but it would include... my program includes all professions, save one, and... and that is ministry.

Mr. Sekulow: Well, if it was as you described it, I would be here arguing the same point in this context.

The idea that you would list all of the professions and then say we are going to fund everything but those students studying theology would be again that religious classification, and I would think unless the state could establish its compelling governmental interest...

Justice Kennedy: As I... as I understand your answer to Justice O'Connor, if we decide in your favor, we necessarily commit ourselves to the proposition that an elementary and secondary school voucher program must include religious schools if it includes any other private schools.

It... it seems to me that your case can be resolved on a much narrower issue than that.

Here we have a... a college student who is being required to surrender his... his conscientious beliefs by declaring a major which otherwise would have been completely funded by the school, and I... I just don't see any interest in doing that.

It seems to me a... a very severe violation of... of religious conscience.

I think that's quite different from an overall neutrality principle, which would foreclose this Court on the voucher issue.

Mr. Sekulow: Well, I don't think... I agree, Justice Kennedy.

I don't think the Court has to go that far here.

Justice O'Connor: But why isn't...

But certainly that's what you're arguing.

I mean, your... your brief and your presentation certainly urges us to go that route.

Mr. Sekulow: If...

Justice O'Connor: Now, have we... have we, in looking at funding issues, have we dealt differently with the requirement of funding something out of public funds than for other purposes?

Mr. Sekulow: Well... well, certainly in the... in the direct aid cases and in the Establishment Clause context, but this is very similar to the Witters program, so there is not the countervailing Establishment Clause issue, and that's what I was going to address, Justice Kennedy.

Depending on how the voucher program is established would depend on whether the religious institutions would be included.

For instance, again I go to the eligibility issue.

Here, Northwest College was an accredited institution...

Justice Souter: Okay.

Let's assume that all the public schools and all the private schools, including all religious private schools are... are accredited in whatever way the state accredits them, and that the criterion, apart from religious education, is simply that the ultimate recipient of the voucher has to be an accredited school.

It seems to me, following Justice O'Connor's question, that the argument that would be made in any case in which a state says we will... we will allow a voucher to be spent in a private school, but not a private religious school is the same argument that Justice Kennedy was suggesting a moment ago, and that is that the religious student must somehow surrender a conscientious belief and go from a religious school and seek to be enrolled in a non-religious private school or a public one to get the voucher.

And I don't see why that argument would not be just as applicable there as the argument that you are making here.

Mr. Sekulow: Justice Souter, in this particular... using that example, here the school is a qualified school.

The Northwest College, which admittedly has a religious affiliation, it isn't...

Justice Souter: Sure.

Justice O'Connor: That's a wash.

Justice Souter: Everybody agrees.

Mr. Sekulow: It's their major.

Justice Souter: Everybody... the only criterion is, will we fund religious training in how to be religion... religious... or will we not?

And in fact, a... a similar argument would be made as between the... the religious school that teaches religion, and the private school that doesn't teach religion.

Mr. Sekulow: In this context, the way the program is implemented within that hypothetical and within the facts here, here students can take these very same courses in religion that Josh Davey...

Justice Souter: Well, that may show that the state draws a kind of a funny line.

Maybe it was a... a bad job of line drawing, and I... I have to admit, I'm not quite sure why they draw it the way they do, but on... on the... on the basic proposition that the state raises as... as its position here, that it will not fund ministerial education or education in how to be religious versus funding other kinds of training, the argument, it seems to me, from the Free Exercise Clause would be the same in the voucher case as the argument that you are making here.

Mr. Sekulow: If in fact the programs were put forward this way with the accreditation as you suggested, and there is no countervailing Establishment Clause issue and the eligibility issue of the school is met, yes, I wouldn't see the...

Justice O'Connor: All right.

Mr. Sekulow: justification to exclude a particular major here in this particular case, a submajor from a religious viewpoint.

Justice Scalia: Mr. Sekulow...

Well, how many states do that, do you know?

You're knowledgeable on these things.

How many states have voucher programs which... which would allow students to go to any private school, you know, an elite academy, but not allow them to go to religious schools?

Mr. Sekulow: Twenty-five states have voucher-type programs that have no restrictions at all as long as it's an accredited institution, so that's the... usually the standard.

They can go to any school that's accredited.

There are some states, and it's about a half-dozen, as I said, Justice Scalia, it's a little bit of a moving target because policies change, that actually have this prohibition for religious education, and even within some of those states, the programs are inconsistent.

They'll have different type of financial aid programs here.

In this particular situation, and the way this particular program is implemented, though, Joshua Davey had already made, Justice Stevens, his declaration of a major before he was notified he was disqualified.

The state didn't do the formal notification until October, some two months after he rolled... enrolled.

Justice Stevens: But I suppose he could have changed his mind and taken another major in most of the courses and then postponed that decision.

As a matter of conscience, he didn't do it.

Mr. Sekulow: It... it was a matter of conscience.

There were some students at the school that did change their mind.

There were two that did not.

Joshua Davey was one that... and the counselor, the financial aid counselor, did state in the joint appendix that she cautioned them if they are in fact going to major in a degree that would be pursuing a theology to tell the truth, which he clearly did here.

So his implementation of the decision was already made in the sense that the state came back afterwards and said oh, by the way, these group of students don't qualify for this.

Justice Kennedy: But wouldn't it be...

Am I... am I correct or incorrect that the state would fund a student who majored in literature at a institution which was sectarian and had instructors who taught literature from a religious perspective or... am I correct about that?

Justice Breyer: Yes.

Well, but the state is saying, I don't know if we can escape the broader ground, the state's saying, look, we understand that, you know, applying our standard there'll be all kinds of anomalies that you can get.

Maybe this case is one.

But what we're doing by and large is to say, we don't want to spend too much of our state money in this program, we'll do it subsidiary, you know, the odd example doesn't matter, but people who major in philosophy are likely to become priests or at least spend a lot of time studying theology.

If they major in theology, or they spend a lot of time studying theology, that's going too far.

So this is, like many administrative lines, a very crude effort to identify those people who are taking too much of their time in totally religiously-oriented matters.

Now, of course that's unconstitutional if we accept your argument that the state must treat the religious study the same way as any other.

That's your broad ground.

But if we reject the broad ground, I don't quite see at the moment how we can accept the narrow one, which turns on these details of the administrability of the line.

Mr. Sekulow: Well, the reason that I want... let me address the latter, if I might, Justice Breyer.

The reason those details matter because the line drawing albeit may be crude on the State of Washington, here is within the context of the Free Exercise Clause, because here the school is an eligible institution, so that's not even at issue.

There is no countervailing Establishment Clause issue here.

Witters foreclosed that.

So all we are dealing with is a statute which on its face states that a student who qualifies based on academic excellence and economic need makes the decision for him or herself where they're going to go to school and what they're going to major in, and they can major in literally the universe of courses.

There is only one exclusion.

It's not even, Justice Ginsburg, a situation with a number of majors.

Justice Ginsburg: Mr. Sekulow, I think that Justice Breyer is getting at the same point I tried to get at, and it's in part the other flip side of what Justice Kennedy asked you.

Certainly, you are not standing here to tell us that, oh, if they were more restrictive, if they said we're simply not going to fund scholarships to students who go to sectarian schools, that that might be all right.

I mean, you don't want to win on the ground of the school was too generous in what it did fund.

Mr. Sekulow: Well, two responses.

First, the... on the issue of the state and their obligation, to recast this as a... the state is being required to fund Joshua Davey's education, I think is... is a miscast of the issue.

The state has decided to employ, to develop a scholarship program that's very broad-based and in that program they have given the student the ultimate choice of where they could go to school as long as it's within Washington state and accredited and literally they can major in any major except for one, and that is a theology exclusion.

Justice Ginsburg: Wouldn't be any better if they said, you can go to any school except a... a church school.

Mr. Sekulow: No.

I think it would raise, if it's accredited I think it would raise the same problem.

But it's not to say that the state universities don't teach courses in theology and religion.

On pages 66 and 74 of the joint appendix, there's a listing of the courses offered at the University of Washington, and it covers a broad array of religious courses, albeit from...

Justice Kennedy: You... you don't know of any case that says that the less significant the interest the state has is the more latitude it has in discriminating against religion.

You don't know of any case that said that?

Mr. Sekulow: No.

That... that would...

Justice Souter: I hope you don't, yeah.

Mr. Sekulow: No.

And hopefully this won't be that one.

[Laughter]

Justice Stevens: May I ask... ask you a broader question?

A number of the briefs discussed the breathing space between the Establishment Clause and the Free Exercise Clause.

Do you take the position, or just what is your position on whether or not there is such a breathing space?

Mr. Sekulow: The play in the joints as it's referred to.

Justice Breyer: Yeah.

Mr. Sekulow: I... I think the play in the joints gives the state broad flexibility in establishing the programs and... or not establishing a program at all, but to use the play in the joints to not accommodate religion but rather to target religion as an exclusion I think is a misuse in my view of what the Court has at this point...

Justice Kennedy: Give me an example, any example.

Justice Stevens: But do you go so far as to contend that any violation, any time there is no violation of the Establishment Clause that then the Free Exercise Clause would necessarily kick in?

Mr. Sekulow: No, absolutely not.

And let me...

Justice Souter: But that's what I was looking for.

Chief Justice Rehnquist: Do you want to reserve the rest of your time, Mr. Sekulow?

Mr. Sekulow: I don't have... I only have 20 minutes, so I cannot reserve any more time.

That's okay.

But I would normally be happy to.

[Laughter]

Justice Ginsburg: If... if you can give me an example of a case where the state can say we know we can give this funding to religious schools if we want to, but we don't want to?

Can you give any example where that would be legitimate on your view of free exercise?

Mr. Sekulow: Sure.

There's... I don't think there is any affirmative obligation, Justice Ginsburg, for the state, even if the Establishment Clause... I'll give an example.

The Center Moriches School District in Lamb's Chapel, while this Court held that the Establishment Clause did not... required them that they open their facilities to comply with the First Amendment viewpoint neutrality issues, they're not... they were not required to open their facilities up.

The State of Washington could develop programs for specific majors.

Justice Souter: No, but if they opened it up at all, there was no play in the joints between the religion clauses that said you can't open it up to this particular religious presentation.

Isn't that correct?

Mr. Sekulow: No, I think that...

Justice Souter: So I think... let me just...

Mr. Sekulow: Please.

Justice Souter: say what I think your position is and then you... I think your position is that, although certain religious funding may not violate the Establishment Clause, it does not follow that the state must fund it.

But if the state has a general program for funding instruction, and this is religious instruction, it's got to fund religious instruction and there's no middle ground, there's no play in the joints there.

Is that correct?

Mr. Sekulow: Under the latter hypothetical, that... that would be our position, that once you have gone into the private schools and the school meets the neutral secular criteria, our view would be at that point the state should be equal and not target out religion for an exclusion, which is precisely the viewpoint neutrality issue that we think should apply and, of course, within the free exercise context, the minimum requirement of neutrality is law not discriminate on its face.

This one does.

If there are no further questions, thank you, Mr. Chief Justice.

Argument of Gen Theodore B. Olson

Chief Justice Rehnquist: Thank you, Mr. Sekulow.

General Olson, we'll hear from you.

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

The Promise Scholarship program practices the plainest form of religious discrimination.

It disqualifies the one course of study that is taught from a religious perspective.

The clear and unmistakable message is that religion and preparation for a career in the ministry is disfavored and discouraged.

Justice O'Connor: Well, but of course, there's been a couple of centuries of practice in this country of not funding religious instruction by tax money.

I mean, that's... that's as old as the country itself, isn't it?

Mr. Olson: Well, yes, it is.

But there is the other tradition that is as old as the country itself, is the free exercise component of the religion clauses, which this Court has said repeatedly mandates neutrality.

Justice Stevens: But how is his free exercise chilled at all?

Can't he practice his religion just as he always would and become a minister?

Mr. Olson: Well, it's...

Justice Stevens: He just has to pay for it.

Mr. Olson: Justice... well, Justice Stevens, the individual that was disqualified in Tennessee from being a member of a delegate to the Constitutional Convention because he was a minister...

Justice Stevens: He was prohibited from doing something every other citizen can do.

Mr. Olson: Well, the same... the Court would have come out the same way, I submit, if it said that ministers will not have their expenses paid, but everybody else will.

The language of the decision and the language of Sherbert v. Verner and Fowler v. Rhode Island is that to the extent that a religion...

Justice Stevens: But you're still not addressing the question of how his... his freedom to practice the religion he wants to practice is impaired at all.

Mr. Olson: Well, he can practice it, but he practices it at a price.

Studying of theology as the...

Justice Stevens: He practices it without a subsidy.

Mr. Olson: He practices it without the same subsidy that is made available to every other citizen except someone who wants to study to be a minister.

If it was discrimination against a minister in... in the... in the case involving Tennessee, this is a discrimination against a person who aspires to be a minister.

He is given less of an advantage than all...

Justice Scalia: If it... if it... if it isn't coercion of... of his religion, I suppose it would be okay to limit this... this exclusion to Jewish theology or to Catholic theology, because the response would be it doesn't... it doesn't coerce his religion at all.

Mr. Olson: We submit that the teachings of the decision of this Court...

Justice Stevens: But isn't the difference that that would plainly violate the Establishment Clause, and here we have a Free Exercise Clause issue.

Mr. Olson: What this Court has said, Justice Stevens, is that in... in many respects the Establishment Clause and the Free Exercise Clause are components of the same principle that is...

Justice Stevens: So you take the position there's no breathing space between the two?

Mr. Olson: Well, there is... there may be breathing space, especially with respect to the Establishment Clause area, where this Court will not find entanglement or endorsement under certain programs that may not be required, but what this Court has said is that distinguishing... that discriminating against Catholics and discriminating against people who are religious generally and even people who are anti-religious generally violates the twin components of equality and neutrality that are... that are mandated by the religion clauses.

Justice Breyer: What... what is your response to the following concern that's been brought up a few times but I'd like you to address it directly.

This case is perhaps a small matter of a distinction that doesn't make all that much sense, but makes some.

But the implications of this case are breathtaking, that it would mean if your side wins, that every program, not just educational programs, but nursing programs, hospital programs, social welfare programs, contracting programs throughout the governments would go over, you'd have to go over each of them and there'd be a claim in each instance that they cannot be purely secular, that they must fund all religions who want to do the same thing, and that those religions, by the way, though it may be an excellent principle, may get into fights with each other about billions and billions of dollars, so... which is something about which I have written about, which you know.

All right.

So, I'd like you to address that.

Mr. Olson: Yes, Justice Breyer.

It is not a major step at all in this Court's jurisprudence to say that those funding programs for medicine, doctors, nurses, cannot distinguish and not discriminate against a person who decides to go to a Catholic nurse or to a Catholic doctor.

If money is made available for individuals in the Medicare program to exclude people that want to go to religious hospitals for their heart surgery, that would violate the Free Exercise Clause.

Justice Kennedy: So do you agree, do you take the position that if we affirm the court of appeals and accept your position, that the Court is committed on the school voucher issue if, say, a school voucher program excludes parochial schools?

Mr. Olson: It would depend, I suppose, on how the program was structured, what the inquiry involving a compelling government... strict scrutiny would entail.

There may be a difference, for example, with respect to funding that's associated with institutions, as opposed to individual conscience.

This is the plainest form of religious discrimination because the person who wants to believe in God or wants to have a position of religious leadership is the one that's singled out for discriminatory treatment.

The Court has said before that distinction, religious tests for governmental benefits violate the Free Exercise Clause.

This is a religious test.

If the person wants to take a program in theology, he's disqualified.

Justice Souter: What are the practical implications?

Justice Breyer: May I ask you...

Just want a sentence on the practical implication.

Is it as far-reaching as my tone of voice suggested?

Mr. Olson: I would say that the... it is not as far-reaching as the... the sense of doom that your question suggested.

[Laughter]

Justice Breyer: Maybe a good thing I'm not... don't...

Mr. Olson: The idea that this country when it... when it provides tax exemptions or cash to citizens to educate their children, cannot single out for discriminatory treatment the Catholic or the religious person is not a far-reaching... well, it may have been far-reaching at the time, and thank heavens that it is, that this principle as the... I think one of the questions, I think it was Justice O'Connor's question, asked with respect to the funding cases and this Court dealt specifically with that in the Maher v. Roe case when it said the funding cases do not control the significantly different context in which a funding decision impinges upon the constitutionally-imposed government obligation of neutrality required by the religion clauses.

So those funding cases are completely distinguishable...

Justice Souter: General, may I ask you this question?

I mean, the whole argument for neutrality comes down to an argument, I think, about the following.

Mr. Olson: About...

Justice Souter: About the following distinction.

The other side says, Washington says, look, there is a line to be drawn, not between funding Catholics and Protestants or atheists or what-not.

The line to be drawn is the line between funding education about a religion, education that says this is what Catholics believe, this is what atheists believe, and on the other hand, education that says, this belief is valid, and you ought to go out and persuade other people to hold this belief.

They say, that is the distinction we are trying to draw.

Why is that distinction invalid under a neutrality criteria?

Mr. Olson: For the reason that the same argument was rejected in the Rosenberger case, that the notion of...

Justice Souter: But Rosenberger was not said... the opinion in Rosenberger said these people are not proselytizing.

And... and the distinction that they are drawing is a distinction between believing in proselytizing on the one hand, how to do it, why it's valid, and instruction on what people believe as a fact on the other.

And I... Rosenberger is an authority for... for the rejection of that distinction.

Mr. Olson: I... I respectfully submit that it is, that the students in the Rosenberger that were publishing those articles were publishing articles that advocated belief in God.

Justice Souter: Oh, look, you're writing my dissent.

I... I agree, but my... my...

Mr. Sekulow: [Laughter]

Mr. Olson: That was...

Justice Souter: I... I couldn't... I couldn't get four colleagues to agree with me on that, and they went off on... on another... another course.

Mr. Olson: Yeah, but the Court went on to say that this was a free exercise violation as well as a First Amendment violation.

The other point that I think is very, very important with respect to that, if the state starts to distinguishing between discussion of a subject and proselytizing, the entanglement problem is going to be enormous.

The program will have to be looked at to see how persuasive it is.

We know today that...

Justice Souter: If that argument is good, why do we even bother with the... the criterion of direct funding of religion?

Mr. Olson: Well, because...

Justice Souter: Because we... we could have drawn the line there.

Mr. Olson: No, because the line has been drawn by individuals, individuals making genuinely free, independent choices to make a dispensation.

It's like the Court's example in those cases of an individual receiving a check and then deciding exactly how to spend it so there's a great difference between those kind of cases.

This is no different than the example that Justice Scalia raised as providing fire protection or... or providing tax deductions.

Thank you.

Rebuttal of Narda Pierce

Chief Justice Rehnquist: Thank you, General Olson.

Ms. Pierce, you have three minutes remaining.

Ms Pierce: I would like to return to three points.

One, on the statute that says no aid shall be awarded to a student pursuing a degree in theology.

A question was asked saying that for administrative ease the state uses this legislative approach, their constitutional command.

But it's not just administrative ease.

I think it's a question of entanglement.

Should the state be involved in a class-by-class assessment of whether it... it individually, it should be categorized as religious instruction or not.

Justice Kennedy: But we've held in Witters that there is no problem with that... with that kind... with that kind of subsidy.

Ms Pierce: For purposes of the Establishment Clause.

And I just wanted to point out that our state supreme court has questioned in a dissent in the Gallway v. Grimm case, some justices of our state supreme court have asked, is focusing on the degree program sufficient for our state constitution?

But we believe there are good reasons for it that's not yet been addressed by our court, and that's to avoid that kind of class-by-class determination, not necessary in Witters because there the focus is, does the Establishment Clause... is it violated by government endorsement?

But Washington does take a different approach to both prongs, both twin prongs of religious freedom, and this is my second point.

For purposes of funding, it looks beyond government endorsement and looks to the freedom of conscience in religious matters of a broader range of citizens, including citizens who may not want to have their compelled tax payments used for religious instruction.

So it's the same principle.

It doesn't become hostility to religion just because it extends that one principle beyond what the Establishment Clause requires.

On the other hand, the State of Washington also puts greater restrictions on government where their regulations may impact someone's free exercise of their religion so that unless a state... the state can show a substantial need, certain regulatory laws cannot be applied in a fashion that burdened the free exercise.

The Munns v. Martin case is a classic example that we have cited to the Court.

It's a case where historic landmark laws could not prevent a church from building a pastoral center because the historic landmark laws were deemed not to be substantially needed by the state to protect the public.

So we do think there is wide latitude, and my final point, Mr. Chief Justice, is that this Court has accorded the states wide latitude in funding decisions for the states to make their own policy judgments.

Here, all the state has done has been to decline to fund religious instruction wherever it occurs, including in a theology degree program.

We have not overstepped our bounds by imposing an unconstitutional condition on Mr. Davey as a recipient.

In the overall picture, we're not suppressing...

Justice Scalia: It... it... it will fund religious instruction.

So long as he doesn't major in theology, he can take the same courses and get... get instructed in religion, can't he?

Ms Pierce: Yes, Scalia, that...

Justice Scalia: So what you say is just not true?

Ms Pierce: Yes, Justice... well, that can happen in a rare circumstance.

We believe that there's a good reason to use that...

Justice Scalia: Everybody who takes a theology course has to major in theology?

I don't think it's rare at all.

Probably most of the students at Northwest College take theology courses.

It's... it's a religious institution, and that's perfectly okay, and the state is willing to fund that.

Ms Pierce: That's what the statute permits now.

Some justices of our state supreme court have expressed the same question whether that is possible.

Thank you, Mr....

Chief Justice Rehnquist: Thank you, Ms. Pierce.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Zelman v. Simmons-Harris - Oral Argument

Fri, 09 Jan 2009 14:50:27 +0000

Case:

Zelman v. Simmons-Harris

Media File:

00-1751_20020220-argument.mp3

Related Transcript:

transcript.xml

Transcript:

ORAL ARGUMENT OF JUDITH L. FRENCH ON BEHALF OF THE STATE PETITIONERS

Chief Justice Rehnquist: We'll hear argument now in Number 00-1751, Susan Tave Zelman, Superintendent of Public Instruction of Ohio v. Doris SImmons-Harris, and two related cases.

Ms. French.

Mr. French: Thank you, Mr. Chief Justice, and may it please the Court:

In 1995, the Ohio General Assembly responded to an unprecedented educational crisis by enacting the Ohio Scholarship and Tutorial Program.

Under this Court's decisions, especially Mueller, Witters, and Zobrest, and in light of this Court's teachings, most recently in Agostini and Mitchell, the Ohio program is constitutional because it offers a neutral program that offers true private choice to parents.

First, the principle of neutrality.

There are two criteria that determine where the benefits will go under the program.

First is residence in a school district that is or has been taken over by State control.

Second is family income.

Neither of these criteria has anything to do with religion, but even beyond these basic elements--

Unidentified Justice: Well, do you... you don't take the position that that guarantees constitutionality, do you?

Mr. French: --We do not, Your Honor.

Unidentified Justice: Okay.

Mr. French: We have a two-pronged approach.

Unidentified Justice: You take it as a necessary condition, but not a sufficient condition?

Mr. French: We do, Your Honor.

We offer both neutrality and true private choice, but even beyond the basic elements of neutrality, there are a number of provisions within this program that guarantee that it's open to all-comers, both in terms of students and schools.

First, the program requires schools not to discriminate based on race, religion, or ethnic origin, that ensures that even a religious school may not discriminate in favor of students of their own religious faith.

Unidentified Justice: And you think it would be unconstitutional if it didn't have that--

Mr. French: Not necessarily, Your Honor, but it certainly goes to the neutrality of the program, but even beyond the--

Unidentified Justice: --Well, why does it matter?

I mean, if they're proselytizing, doesn't it make good sense for them to admit anybody who may come along, and yet the proselytizing can't be established under the Establishment Clause?

Mr. French: --We, of course, Your Honor, do you agree that they're proselytizing.

Whatever proselytizing is happening in the religious schools is at the behest of the parents, not at the behest of the Government, and perhaps I should move to the second prong, then, and talk about--

Unidentified Justice: Well... go ahead.

Mr. French: --And talk about the true private choice that is at issue here for the parents.

Unidentified Justice: Well, but I take it that the first part of your argument as demonstrated is to try to show that there are certain indexes, indicia of neutrality.

Mr. French: Correct.

Unidentified Justice: And you just... and you tick them off.

Mr. French: Yes, Your Honor.

Yes, that there is the Nondiscrimination Clause, and secondly that there is a cap on the number of students that... who are already in the program, and the limit on the number who can continue in the program.

Only 50 percent of the scholarships awarded each year may be awarded to students who are already in the program.

That again assures that the program be open to all-comers, to those eligible in the Cleveland School District.

Thirdly--

Unidentified Justice: What percentage of the students in the school system are... get vouchers?

Mr. French: --Well, there are 57,000 students, elementary students in the Cleveland School District, Your Honor.

About 4,000 of them get scholarships.

Unidentified Justice: About how many thousand get scholarships, 2,000?

Mr. French: In 1999 the number was 3,700.

It's now about three thousand four--

Unidentified Justice: So it's about 10 percent of the student body?

Mr. French: --Yes, Your Honor, a little less than 10 percent, but all the students in the Cleveland School District are eligible.

They all receive information about the program, all are invited to attend, as long as the resident is in the school district, and then family income determines the amount of the scholarship that they receive.

The third and final prong of the neutrality here is the benefit itself.

It is, of course, money.

It is inherently neutral.

There is nothing about that benefit that suggests any sort of reference to religion.

The second prong this Court has looked to is the true private choice available for receiving the benefits.

Here, Cleveland parents have a number of alternatives available to them.

They can stay in the Cleveland Public Schools--

Unidentified Justice: May I ask you a question about private choice which is a very important part of the case?

Supposing you had a situation with a small community that had one public school and one religious school, and they would pay for the voucher to go to the religious school if the family on its own private choice wanted the child to go to the religious school.

Would that save the program in that case?

Mr. French: --I think it would, Your Honor--

Unidentified Justice: Yes.

Mr. French: --given... if... of course--

Unidentified Justice: So in this case it's irrelevant, really, that there are four or five choices available, as long as there's a free choice either to go to the public school or to go to the religious school?

Mr. French: --Well, we have a number of choices within the traditional public schools, Your Honor.

Unidentified Justice: But they're not... it's not necessary to your argument is what I'm trying to--

Mr. French: They are not necessary, Your Honor.

However, this Court has viewed other programs in view of the entire... viewed as a whole of the program.

For instance, in Rosenberger, Justice Powell's decision in Witters--

Unidentified Justice: --In Witters, there's such a dramatic difference between a choice from the great universe of colleges and universities, what a particular student will choose, and here, the difference... you just explained to Justice Stevens that maybe it doesn't matter.

The difference is that in fact there is only one alternative, if you don't take account of the community schools, the suburban schools say no, they don't want any part of this, private schools can't make it on that low tuition, so in fact, isn't it true that something like 99 percent of the students who were receiving these vouchers are in religious schools?

Mr. French: --That's currently true, Your Honor.

That number has fluctuated over the years of the program.

It's fluctuated a great deal from 1995 to this year.

That's true.

Unidentified Justice: May I ask why we don't take account of the availability of the community schools in analyzing this program?

Mr. French: We would like the Court to take very much account of the community schools, Your Honor.

Unidentified Justice: The court below didn't do that.

Mr. French: That's correct, Your Honor.

Unidentified Justice: Is that an option, in fact, to the parents?

Mr. French: Very much so, Your Honor.

Unidentified Justice: And the tuition assistance would be provided if the selection were for a community school?

Mr. French: There would be no tuition assistance, Your Honor, only because they are public schools, so there's no need for a scholarship there.

Parents can choose a traditional public school, they can choose a tutoring grant if they're in a public school, they can choose a magnet school, they can choose a community school, or--

Unidentified Justice: And if a community school is selected, no additional money then is provided, as would be provided if the religious school were selected?

Mr. French: --That's true, Your Honor.

If the parent chooses a community school, because it's considered a public school, there is no money exchanged.

It's only--

Unidentified Justice: Have some of the private nonsectarian schools in the city become community schools?

Mr. French: --They have, Your Honor.

There were two schools in particular who in 1997 chose to be community schools rather than be in the scholarship program just after the district court's injunction.

Unidentified Justice: Because they get more money.

Because they get more money.

Mr. French: In part because they get more money, and in part because of the uncertainty of the litigation.

There certainly has been a chilling effect as a result of the litigation that's been going on in some form since 1995.

Unidentified Justice: Are slots available in the community schools for these children that we're talking about?

Mr. French: Yes, Your Honor, there are spots available.

Unidentified Justice: There are vacancies?

Mr. French: Available in both community schools--

Unidentified Justice: Can you get a tutoring grant if you go to a community school?

Mr. French: --Yes, Your Honor, you can.

As long as you're in a public school, and that would include community or magnet schools, you're eligible for a tutoring grant.

Unidentified Justice: Is there anything in the record about the quality of these community schools?

There was one brief that said they were too new, too few, too unregulated, too untested to tell.

Was there any evidence of what these schools are, when... there is evidence that the public school system is deplorable.

What evidence is there of these community schools, of whether they are a better choice to educate the child than the regular public schools?

Mr. French: I would direct the Court to two places in the record, particularly the joint appendix.

One is the affidavit of Mr. Puckett, which is at 157a, which simply describes what a community school is, the number of schools that are available, the number of spaces that are available.

There is also the affidavit of Paul Peterson, at approximately 98 of the joint appendix, a very lengthy affidavit that describes the different kinds of options available and what their benefits are.

The benefit for a community school is, it is considered a public school.

There is some amount of accountability that might not be there with respect to a private school, but for a parent who's looking for an alternative to the public schools, that might be a good option for them.

Unidentified Justice: Is there a description of the precise community schools that are participating in the program, and the quality of education in those schools?

Mr. French: There is to the first part of your question, Your Honor, and that's in Mr. Puckett's affidavit, of just describing what the schools are, why we have them in Ohio.

It's a State-wide program.

It's not just for Cleveland.

It's actually a State-wide program that was implemented in 1997, and was specifically complemented by the district court in a desegregation order relating to Cleveland as an option for Cleveland parents.

Unidentified Justice: Is there information in the record available about the quality of the religiously affiliated schools?

Mr. French: There are a number of studies that have been done both in Cleveland and with respect to other scholarship programs, Your Honor.

I would point specifically to, again to Mr. Peterson's affidavit at 105 to 107 in the joint appendix.

Unidentified Justice: I mean about these particular schools in the program.

Mr. French: Yes, Your Honor, in general the scholarship program, not just specifically the religious schools, but the voucher, or the scholarship program as a whole, as to whether the students are showing academic achievement or, you know, significant results beyond that.

Yes, there are, but not specific, again, to the religious schools.

Unidentified Justice: Before we leave the community schools, when the State calculates the funding that goes to the community schools, it takes account of the number of students that go to the community schools, I take it?

Mr. French: Oh, yes, Your Honor.

Unidentified Justice: And there's a figure of something like $5,000--

Mr. French: Yes.

Unidentified Justice: --per student.

It's not quite that.

Mr. French: Right.

$4,500 to $5,000.

It's calculated on the basis of the normal State aid number that a public school would receive for educating a child and, again, it's a per capita kind of number.

Unidentified Justice: Does the same amount of money per capita go to a community school as would go to the regular public school?

Mr. French: Yes, Your Honor, approximately.

There's a slightly different amount, but it's approximately the same as the State aid number.

Unidentified Justice: May I ask you if this Court would have to overrule the Nyquist case to support your position?

It certainly points the other way, doesn't it?

Mr. French: It does point the other way, Your Honor, but we think that there are a number of distinctions which this Court has drawn between the programs at issue, say, in Mueller and Witters that distinguish it from the New York program at issue in Nyquist.

The New York program took a class of beneficiaries, that is, the students already within the private schools, and offered them a benefit.

The Ohio program approaches the problem very differently.

It approaches the problem from all of the schoolchildren in Ohio, or in the Cleveland Public School System, and offers them a benefit which--

Unidentified Justice: How does that change the legal concern about the Establishment Clause?

Mr. French: --Well, this Court has pointed to specifically footnote 38, where the Court reserved judgment in the Nyquist decision for programs that offered a benefit, the specific example was scholarships there, and offered to a broad base of beneficiaries without regard to the nonpublic or public or nonsectarian, sectarian nature of the institutions benefited, which is precisely what is happening here.

Unidentified Justice: Well, but doesn't that simply then go back to this neutrality point, and you're saying because it's neutral, in the sense that it's offered in an even-handed way, query... your friends on the other side dispute that, but just accepting that categorization, because it's neutral in that sense, that's a distinction which ought to make a difference in the result.

But as you agreed earlier, the neutrality that you're talking about is a necessary condition, but it's not a sufficient condition of constitutionality, and at the end of the day, I think what's bothering me about Nyquist and, I suspect, Justice O'Connor, too, is that Nyquist depended not merely on a question of neutrality, but on the effect, and at the end of the day, the effect is a massive amount of money into religious schools in Nyquist, a massive amount of money into religious schools here.

That, I think, is the sticking point here.

Mr. French: We, of course, disagree, Your Honor, that there is a massive amount going to religious schools as a result of something that the Government is doing.

It's true, it's very true--

Unidentified Justice: Well, your adding a term as a result of what the Government is doing, which is a separate issue as to what the significance is of the private choice, but the effect that Nyquist was concerned with, and the effect that I think has been shown here, is a substantial amount of money, aid to the schools themselves, in relation to the amount of money spent on the program, and in those respects the two are identical.

Mr. French: --Well, in that respect, Your Honor, there's no question that there is money that is ending up in religious institutions, because that's what the parents have chosen, but that nondiscrimination provision that I spoke of earlier did not exist in Nyquist.

The New York schools at issue in Nyquist could discriminate based on religion, and that, of course, means that the program, the New York program was not open to all-comers.

Unidentified Justice: Well, Miller also made the point, I think, that where the parents do the choosing, as they did not do in Nyquist, it was a different ball game.

Mr. French: Absolutely, Your Honor.

In Mueller, of course, the percentage of religious schools or the number of parents receiving benefit because they paid tuition to religious schools was 96 percent, and this Court has been very clear that where there is private choice, that percentage that changes from year to year is simply not relevant.

The wisdom of that rule--

Unidentified Justice: What is the closest of our cases, do you think, to the Ohio program?

Is it Witters?

Mr. French: --I would suggest Witters, Your Honor, because it's a financial aid going to, there it was a college student, but an adult, to make a decision about where to send the money.

Here, it's an adult parent making a decision about where to send the money on behalf of the child.

Unidentified Justice: What are you say--

--Here, the difference would be, however, that according to respondents the choices are much more limited here than in Witters.

Mr. French: That's true, Your Honor, but in Mueller the Court did address that concern, as Justice Powell said in his concurrence in Witters, that it didn't matter that there was only one person, Mr. Witters, using the money for seminary, for the Inland Empire School of the Bible, nor did it matter in Zobrest that there was only one child or one parent, set of parents for a child looking for an interpretive or religious school.

Mueller teachers that the percentage that changes from year to year is simply not relevant.

Unidentified Justice: I suppose part of the design of the program is to have a structure which will encourage over the long term more and different kinds of school choices, including, of course, the community schools.

Mr. French: Absolutely, Your Honor.

Unidentified Justice: May I ask you about your suggestion that in Nyquist, it's a difference when the parents do the choosing, but who chose where the children would go to school in Nyquist?

Did the parents make the decision?

Mr. French: The parents, of course, did, Your Honor.

Unidentified Justice: So it's the same case.

Mr. French: I disagree, Your Honor.

I think it's different in that we fall under the question that was reserved by the Court that there, because they didn't have the nondiscrimination provision, because of the purpose behind that Nyquist program was specifically to aid the private schools, that's very different from the Ohio program that's at issue here.

Your Honor, I'd like to reserve my remaining time.

Unidentified Justice: Very well, Ms. French.

Mr. Young, we'll hear from you.

ORAL ARGUMENT OF DAVID L. YOUNG ON BEHALF OF THE PRIVATE PETITIONERS

Mr. Young: Mr. Chief Justice, may it please the Court:

I'd like to start out by addressing the questions concerning Nyquist and the basis for distinction.

I would refer specifically to 463 U.S. page 398, and there this Court, when it distinguished... in Mueller, when it distinguished Nyquist said, in this respect, as well as others, this case is vitally different from the scheme struck down in Nyquist.

There, public assistance amounting to tuition grants was provided only to parents of children in nonpublic schools... pardon me... in nonpublic schools.

This fact had considerable bearing on our decision striking down the New York statute at issue, and then it goes on.

It talks about Allen and Everson.

So this Court made it very clear in Mueller that there was an important distinction between that and Nyquist.

Unidentified Justice: Does the money went to children... the money went to families with children in nonpublic schools, but that's exactly what's happening here.

Mr. Young: Your Honor, if--

Unidentified Justice: Aren't the vouchers just for people in the nonpublic schools?

Mr. Young: --Your Honor, it isn't exactly the same at all.

In Nyquist--

Unidentified Justice: Well, am I right that the vouchers are just for people in nonpublic schools?

Mr. Young: --In this case, no, Your Honor.

We have tutorial vouchers for people in public schools, and tutorial vouchers for magnet schools and community schools.

Unidentified Justice: Speaking of the tutorial vouchers, why is the number of tutorial vouchers limited to the same number of vouchers paid to the private schools?

Mr. Young: Well, I would... Your Honor, I would suspect the answer to that is to try to provide some form of equality and to make sure that there was no Government endorsement of one choice or another, so the equality of having the same number of grants for tutoring being the same as the same number going for scholarships.

Unidentified Justice: Of course, the amount of money is vastly different, isn't it, because the... I forget the figures exactly, but isn't the limit on the tutorial something like $350 a student, as opposed to the 2,000 some-odd dollar limit on the tuition vouchers?

Mr. Young: Your Honor, there is a difference, but there is less a difference than the difference between the public school and the nonpublic school deductions taken in Mueller.

Unidentified Justice: Well, you wouldn't limit it to the vouchers anyway, would you?

I mean, you would think that we'd have to look at the money that goes to the community schools--

Mr. Young: That is--

Unidentified Justice: --which does not go via vouchers, it goes directly to the schools, and it's a greater amount of money that goes to the private schools, isn't it?

Mr. Young: --Your Honor, I think the fact... there is no question that when this program was initially implemented, every single secular school in the district signed up to participate.

Additionally, two brand-new secular schools were established by reason of this program, the two HOPE schools.

They remained in the program until the Community School Act was adopted.

That, indeed, doubled the amount of money available to the families.

In other words, the maximum scholarship grant, $2,250, and... but if those same children elected to go to a community school, the State would pay for each child at least double the amount that it would pay if they selected the scholarship--

Unidentified Justice: So what is actually involved?

I'd like to hear what you say about the endorsement point that Justice Souter initially raised, and my thought is, I'll assume no discrimination, and I'll assume it's a fine program, but imagine you came from Europe or Africa, or a different place, and said, what do they do in the United States by way of educating their children, and you're told, well, $60 billion a year, $40 billion, or some very large amount of money is being spent by the Government to give children K through 12 what is basically a religiously oriented education taught by a parochial school.

Wouldn't you then say, in the United States of America, like France or like England, the Government of the United States endorses a religious education for young children by putting money up, massive amounts?

Now, I'm putting it that way to get your response, and that's the problem that bothers me most about the word, establishment.

Mr. Young: --Thank you, Your Honor.

There is no governmental endorsement of religion in this program, and there are several reasons why there isn't.

The first, Your Honor, reason would be the amount of money that is spent, first of all, on a public school education, which is approximately $8,000, the amount of money paid for a community secular education, $4,500, and the maximum amount provided to a family that selects a nonpublic school, $2,250.

So if... the first thing you look at is the amount of money that is spent depending on the nature of choice made by the child, and the preference, the... in that instance is clearly a preference for the secular schools.

Secondly, Your Honor, if you look at the history, as well as the context of this particular program, this program was adopted because of one of the most serious educational, public school crises in the United States, and I think anyone trying to determine what was the Government doing, was it endorsing religion, no.

The Government was trying to permit low income educationally disadvantaged children who were trapped in a failing system to exercise an alternate choice.

So I think any person... the Cleveland district has been in litigation, Your Honor, for some 20-plus years, in Federal court, because of the difficulties that have been encountered in the public school system.

I think anyone looking at this legislation as it was adopted and as it was implemented would conclude that there is certainly no Government endorsement of religion.

The Government was trying to resolve a problem of these disadvantaged low income children, and giving them alternate choices, which parents ought to have in any event so that's certainly another reason.

When no money flows, not a dollar flows to a religiously sponsored school under this program, but for the independent, private choice of a parent.

The State does not direct a dollar to a religiously sponsored school.

No--

Unidentified Justice: There's an irony, I... are you... is that--

Mr. Young: --I could go on, Your Honor, but--

Unidentified Justice: --No, if... I mean, the irony is that the better the parochial school, in a sense, the less the freedom of choice.

I mean, I... if it were my children and I saw these comparisons, I'd say, send them to the parochial school.

Would you like them to learn that religion, I'd say, frankly not, that's not my religion, but it's very important my child get the best education, and therefore I would be feeling I had to send them there, if that's what I want.

Mr. Young: --Your Honor--

Unidentified Justice: I mean, no one's complaining about the quality of the program.

It's this concern about the endorsement, and not even that that's what they intend, but that that's the effect.

Mr. Young: --For reasons I've already noted, Your Honor, I believe there is no governmental endorsement, and you have to realize that the overwhelming majority of the eligible children elected to remain in the public school, and incidentally there are--

Unidentified Justice: I assume Justice Breyer could send his child to one of the community schools, which is entirely nonsectarian, under this program, right?

Mr. Young: --Your Honor, that's another alternative, and I think we--

Unidentified Justice: Which schools would get more money than the sectarian schools anyway.

Mr. Young: --Your Honor, I see that as another reason why no one could say there's a reasonable message of governmental endorsement in this case.

Unidentified Justice: And you agree that the Sixth Circuit erred.

Was it legal error?

The Sixth Circuit said, we're not going to take account of the community schools because that's a whole other program.

This case was about the voucher program.

In the district court, what development was there about the community schools?

Mr. Young: Your Honor, the same approach was taken by Judge Oliver, but I don't feel that the Sixth Circuit really understood how the community school program worked, or how one could use the tutorial vouchers to help the children that elected to go to the community schools.

Unidentified Justice: Well, there's really no record on the community schools, you're saying, because you weren't permitted to make a record?

Mr. Young: Your Honor, there is an extensive record in affidavits in terms of the creation of the community schools, the transfer of the two secular scholarship schools to community school status.

The children who were enrolled as scholarship pupils in the scholarship secular schools just transferred when those schools became community schools, so this legislation clearly enabled the same children, the same low income, educationally disadvantaged children to elect a community school, so there is record evidence to that extent, Your Honor.

Why the Sixth Circuit refused to consider the community schools is beyond me.

The... I think in order to fully understand the choice issue, Your Honors, I think you have to really look into more detail into the tutorial grant program.

We haven't addressed at all the subject of the--

Unidentified Justice: Do we have to link the two programs together to resolve the case--

Mr. Young: --Your Honor, I believe not.

Unidentified Justice: --the tutorial program and the money paid to the parents and endorsed over to the schools in the case of choice?

Do we have to consider both together?

Mr. Young: Your Honor, I would consider them together, but it was... it's the, all of the indicia of choice, not just the endorsement.

Unidentified Justice: Thank you, Mr. Young.

General Olson, we'll hear from you.

ORAL ARGUMENT OF THEODORE B. OLSON ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONERS

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

I'd like to follow up on the point that was just being made.

This Court has taught repeatedly that the history, the context, and the purpose for programs like this are a very, very important part of the determination of what the endorsement test or the effects test would be.

There is no question that the purpose that inspired, and the history and the context that inspired the Ohio pilot program could not have been more compelling and more focused on the needs of children.

Unidentified Justice: No, but I would think you would say the program was still constitutional, even if it was just conceived in the healthiest school system in the world.

Mr. Olson: Well, perhaps, Justice Stevens, I might, but this... as this Court has taught repeatedly, the background history and the context informs the decision which this Court has endorsed with respect to what the effects or endorsement test would be, measured by what a reasonable, objective observer would believe the State or the Government was doing, is the Government endorsing religion, and that has to be considered in the context of what was going on.

Here we have a manifestly failing system in which... no one disagrees with that.

Efforts had been made, and a Federal court had decided the system had to be taken over.

Unidentified Justice: The thing that puzzles me about that argument is, why did they make this wonderful solution available to such a small percentage of the student body?

Mr. Olson: I would invite the Court's attention to page 41 of the Taylor petitioner's brief, which contains a chart which shows the various choices which were made available to the students as a result of the composite, the context of the program that we're considering.

It shows... that chart shows, along with the other statistics in the brief, that there are 57,000 students in the school system.

16,000 went to the magnet schools, 2,000-and-some are going into the community schools... these are present facts... 3,700 accepted scholarships to use in religiously affiliated schools, 1,400 accepted the tutorial program, and another 100-and-so took scholarships with respect to nonreligiously affiliated schools.

There were more nonreligiously affiliated schools available, but two of those, the major ones, decided to become community schools.

I would like to invite the Court's attention--

Unidentified Justice: Mr. Olson, I didn't quite understand Justice Stevens' question.

You acknowledge that it was made available only to a small number of the students?

Mr. Olson: --No.

I... what I meant--

Unidentified Justice: I thought the program was available to all the students.

Mr. Olson: --I stand corrected.

What I mean to say, the choices were... there was a broad range of choices, but the program itself was made available to all of the students.

Unidentified Justice: Any student could have gone into a... one of the community schools, or to one of the private schools, isn't that right?

Mr. Olson: That's correct, and the record is quite clear on this, also.

Any student who wanted to go to a nonreligiously affiliated private school, no student who wanted to do that was declined the opportunity to do that, so your child, Justice Breyer, could have gone to a nonreligiously affiliated school.

Unidentified Justice: Ah, but there doesn't seem to be a record on this very clear, that my impression was really the parochial schools are an awful lot better.

Mr. Olson: Well, I think that's an impression that you may have, but--

Unidentified Justice: So are we supposed to send the case back?

Does it turn on that?

Mr. Olson: --No, no.

There's no record evidence to support that.

Remember, this is a pilot program, an experimental program.

The best evidence may be found in the affidavit or declaration of Howard Fuller, who was the former superintendent of the Milwaukee system, who watched the Milwaukee system develop and get put into practice.

That's at the joint appendix pages 228 to 236.

During the period of time that the Milwaukee program has been in existence, the number of private, nonreligiously affiliated schools have increased from 7 to 30, the number of students in those private, nonreligiously affiliated schools has increased tenfold, from 337 to 3,025.

He also points out that the existence of the alternative has improved the public school systems as well.

Parents are involved in the choice of the educational opportunities for their children.

He demonstrates they get more involved in the school system.

Unidentified Justice: General Olson, if a private individual challenges a State law as unconstitutional, the burden of proof is on that individual, isn't it, to show the necessary facts to establish unconstitutionality?

Mr. Olson: Yes, Mr. Chief Justice, absolutely, but the record here goes even further than that, because the record that is available shows these many alternatives.

It shows that when the program has been allowed to exist free of constitutional objection, it has shown improvement at the student level, and improvement at the public school level as well as the private school level.

Let me emphasize that in response to the question Justice Souter raised at the very beginning of the argument, it isn't just neutrality, but there is clearly neutral criteria here for opting in or out of the program.

Another factor that the Court has thought was important in the past was, the parents have an option not to participate in the program, and that's a part of the optional choices that are available.

Unidentified Justice: I want to ask how the courts faced with this challenge have to view the case.

Must they view it as having the whole range of options available, public school, magnet, community, and religious schools?

Mr. Olson: Yes, Justice O'Connor, I believe that is the correct context.

Unidentified Justice: And why did the court below not do that?

Mr. Olson: I think the court made a legal error in failing to do so, because this Court has taught over and over again that the context is extremely important--

Unidentified Justice: Now, is it limited only to low income children, or does it just... does that affect the amount of money to be given?

Mr. Olson: --It affects both the amount of money to be given and the preference.

To the extent that there are any limitations on the program at all, the priorities are given to low income students on the theory--

Unidentified Justice: There's only a finite amount of money available.

Mr. Olson: --Well, that's always the case, of course--

Unidentified Justice: Right.

Mr. Olson: --in any Government program, but the priorities are given to the low income people.

The evidence that's in the record demonstrates that the vast majority of these scholarships are used by people at the poverty level.

The rationale for that, of course, was that people in the higher income level can afford the alternative.

Unidentified Justice: Now, there was no attempt in the program to make sure that the money that ends up in the parochial schools is not used for religious training, or teaching.

There have been other Federal programs, for example, where there have been such limitations on usage.

There's none of that here.

Mr. Olson: That's correct, Justice O'Connor, but the Court has made the point in connection with those types of programs that there's a significant difference between a direct aid program, where funds are going from the Government to the school, as opposed to the private, genuinely independent, purely private choice programs where the choices are being made by individual parents, and being made by individual parents motivated by the best education for their children.

So to go back to the reasonable observer test with respect to endorsement, would a reasonable observer believe that the Government's putting its thumb in favor of religion on the scales here under all of these circumstances, the wide range of choices--

Unidentified Justice: May I ask on that very question, do you think these alternatives are essential from a constitutional point of view, or would you make the same argument if there were merely the one choice, religious school or the private school?

Mr. Olson: --I think applying the standards this Court has adopted, that if the criteria are neutral... and I'm answering... I'm saying yes.

Unidentified Justice: The criteria is neutral.

You can either go to the public school, or you can go to the parochial school, and if you go to the parochial school, we'll pay the tuition.

Mr. Olson: Which we're also offer... yes.

Yes.

Unidentified Justice: I understand there's a lot more here, but what would you do with that case?

Mr. Olson: I think if there was a purely neutral criteria in terms of eligibility for the program, and it's a purely private choice, that the... because this Court has emphasized that we're looking at whether the Government's being... going to be perceived by a reasonable observer as endorsing religion, if it is a purely private choice program, the teaching of this Court is, it's not unlike a Government check that goes to an individual who then spends it, all of it on his church.

Unidentified Justice: My hypothesis is, it's purely private.

Either I'll go to the parochial school or the public school, and the Government doesn't care which one.

Mr. Olson: It's purely neutral--

Unidentified Justice: And you would say that's perfectly all right.

Mr. Olson: --Well, I would probably be making that argument in another case.

I don't have to make that argument here, because we have all of these other alternatives, including private schools.

Unidentified Justice: But I'm trying to decide whether those alternatives are constitutionally necessary, or just make your argument stronger.

Mr. Olson: Well, I think that what this Court has taught, that because these establishment Clause cases are so difficult, that they are made in the context of the particular facts of the case, and that the facts and circumstances in history illuminate what the Government was involved in, because we're not talking about--

Unidentified Justice: Why don't we... why don't you... well, I know why you don't stress, but why shouldn't we stress as one of those facts the bottom line of 96 percent of the kids taking the tuition aid, or taking it in parochial schools?

Mr. Olson: --Well--

Unidentified Justice: And doesn't that suggest that there is perhaps something specious about this notion that it's a matter of wide-open choice here?

In practical terms, the money is going to end up where it ends up, and the 96-percent figure is pretty persuasive.

Mr. Olson: --That was the same factor in the Mueller case, and one of the other cases that has been cited, the Court said that is not of constitutional significance.

We're not going to--

Unidentified Justice: Oh, I'm asking you a question about practical significance, and why do we eliminate that fact from our judgment about what in the real world seems to be going on?

Mr. Olson: --Because those choices this Court has said are the result of purely private choices, and that that will not be associated by a reasonable observer with a governmental decision.

Unidentified Justice: Thank you, General Olson.

Mr. Chanin, we'll hear from you.

ORAL ARGUMENT OF ROBERT H. CHANIN ON BEHALF OF THE RESPONDENTS SIMMONS-HARRIS, ET AL.

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

Under the Cleveland voucher program, millions of dollars of unrestricted public funds are transferred each year from the State Treasury into the general coffers of sectarian private schools and the money is used by those schools to provide an educational program in which the sectarian and the secular are interwoven.

It is a given that, if those funds are properly attributable to the State, the program violates the Establishment Clause.

We submit that the answer to that attribution question is yes, and it is yes because, regardless of the decision that individual parents may make, it is inevitable, it is a mathematical certainty that almost all of the students will end up going to religious schools that provide a religious education--

Unidentified Justice: Well, Mr. Chanin, wait just a minute.

A couple of things.

Do we not have to look at all of the choices open to the students, the community schools, the magnet schools, et cetera?

How is it that we can look only at the ones looking to the religious schools?

Mr. Chanin: --The limitation to looking at the voucher program as a freestanding program is consistent both with the precedents of this Court and with absolute logic, Your Honor.

Unidentified Justice: I don't understand either point, to tell you the truth.

I mean, if you want to look at what the parents' choices are, do you not have to look in reality at the whole program, then it isn't a 96-percent thing?

Mr. Chanin: Your Honor, this Court has always been program-specific in its financial aid cases.

In Nyquist, the Court looked at three separate programs under the one statute, viewed them all in independent terms, and viewed them all independently of whatever else was going on in the New York City Public Schools and New York State.

Unidentified Justice: But I'm not sure that's proper.

That's what I'm asking you.

Why should we not look at all of the options open to the parents in having their children educated?

Mr. Chanin: Because what that does, Your Honor, is, it mixes together programs that are quite qualitatively different in both function and purpose.

The magnet schools, the charter schools, the tutorial program, those are all ways in which the State is attempting to discharge its basic legal obligation to provide a public education for all of its students.

Unidentified Justice: But the question is whether or not--

Mr. Chanin: All of the parents are entitled--

Unidentified Justice: --The question is whether or not there is neutrality in this program, and it seems to me that if you ask us to put on blinders, and not inquire as to what's really happening in Cincinnati, what really was the reason for this, what all of the choices are, that you're asking us to make a decision based on an a fictional premise.

Mr. Chanin: --Your Honor, I think we're doing precisely the reverse.

We are asking you to look at the reality.

What the State of Ohio has set up here--

Unidentified Justice: You're asking us to look at part of a reality.

Mr. Chanin: --No, Your Honor.

We're asking you to look at a special benefit that the State of Ohio is making available to a selected group of parents over and above the benefit that they have, along with all other parents, to send their children to a public school.

That benefit is a qualitatively different benefit to take my child out of a public school and put my child into a private school and be educated with public money.

Unidentified Justice: You don't have any problem with that.

You say it would be perfectly okay if it went to a private school.

It's only the portion of it that goes to a private school that is religiously affiliated that you object to, isn't that right?

Mr. Chanin: No.

What I am saying--

Unidentified Justice: Oh, this money could not even go to nonsectarian private schools?

Mr. Chanin: --Pardon me, Your Honor?

Unidentified Justice: This money could not, in your view, even go to nonsectarian private schools?

Mr. Chanin: Yes, it could, Your Honor.

Unidentified Justice: It could, and that would be a rational way for the State to provide for the education of children--

Mr. Chanin: It would be a constitutional right.

Unidentified Justice: --some in publicly run schools and some in private schools, but if any of those private schools is a religiously affiliated school, that is a no-no.

Mr. Chanin: No.

Unidentified Justice: --and that, in your view, is neutrality?

Mr. Chanin: No, Your Honor, that is not my position.

We are not saying, if any of those schools are sectarian it is a no-no, or the program fails.

We are saying, if you take a program which is designed to give parents the option to go out of the public schools and educate their children in a private school, and then you say to 99 out of 100 of those parents, if you choose that option, you must send your child to get a religious education, that is not--

Unidentified Justice: Well, the percentage in Mueller was 96 percent.

Mr. Chanin: --I believe, Your Honor, that this Court, this case is not controlled by Mueller, for the very same reason that Mueller was not controlled by Nyquist.

The Court distinguished a Nyquist-type program in Mueller on three grounds, all of which are equally applicable here.

The Court--

Unidentified Justice: The State does not say here, as you put it, that you must go to these religiously affiliated schools.

What you're saying is, they happen to be the schools that are currently up and running.

In fact, originally in this system it wasn't... what is it, 96 percent you say?

Originally it was something much lower, something like 62 percent, except that two of the schools, two of the largest nonsectarian private schools, decided to be come community schools, so originally it was a much different percentage.

Are we supposed to examine this program year by year to see what the percentage is?

Mr. Chanin: --No, Your Honor.

What we would like the Court to do is take the language of this program and look at it, not simply on its face, but in the empirical context in which it will operate.

Let me give you the percentages, if I may, just to track what you have done.

This started out in 1996 with 80 percent of the schools being sectarian and 80 percent of the students going to those schools.

By 1999, 2000, the universe had become even more skewed toward the religious.

It was 82 percent of the schools and 96 percent of the students.

Unidentified Justice: But isn't that because some of the private schools had become community schools, and is it not true that parents can choose to have their children educated in a community school and, if they do, that school gets more money from the State than if they had chosen the religious school?

If anything, it's skewed against the religious schools--

Mr. Chanin: Your Honor--

Unidentified Justice: --in terms of public support.

Mr. Chanin: --I think there are two parts to your question, if I may take them in sequence.

The first is, why is the universe moving in the direction it is, and just, if I may, to complete the point, we now have this year 99.4 percent of the students in that program going to religious schools.

Unidentified Justice: So far, you're doing a very good job of not answering Justice O'Connor's question.

[Laughter]

Mr. Chanin: Well, the answer to it is this, Justice Kennedy.

From our perspective, it is not determinative why the universe is the way it is.

From the point of view of the--

Unidentified Justice: Well, but now, wait a minute.

Why do you not put the community schools and the magnet schools in the universe of choices?

That's the problem I'm having with your argument.

You say the figures are skewed, but they're skewed only because you will not look at those choices.

Why?

Mr. Chanin: --We do not look at them for two reasons, Your Honor.

One is that the Court in Nyquist explained why it did not go beyond the program itself.

It said this.

If you extend the... if you look at the choices that parents have to go to public schools as well as the vouchers in the private schools, you allow, through the tuition grant program, to do precisely what the Establishment Clause prohibits, which is to use tuition grants to pay totally for private, sectarian religious education, the Court said.

It's a back-door approach to do precisely what the Establishment Clause prohibits.

Secondly, people talked a moment ago about perception, and I think they're completely mistaken.

This is the perception.

The reasonable observer does not look at public education and the multiple, changing, various programs that are offered.

The person looks at this.

The State of Ohio has set up a special, well-publicized program which allows a certain number of students to escape from a troubled school district, and appropriates a pot of money into that program, and what the reasonable observer sees is, that program and that pot of money ends up 99.4 percent giving children a religious education.

Unidentified Justice: Mr. Chanin, that's only true if you say the person is reasonable in not looking at all the choices, which include community schools, certainly.

Mr. Chanin: Your Honor--

Unidentified Justice: And probably magnet--

Mr. Chanin: --Your Honor, if it extends that way, there is no meaning any more to the concept of genuinely independent and private choice.

We don't need magnet schools.

We don't need community schools.

We should just say, you people have 57,000 options.

You can stay in the Cleveland public schools, or you can leave that school district, take public money, and go get a religious education.

The magnet schools, the community schools, they're not unique.

They're part of the way in which a State provides a public education.

There are small classes and large classes.

There's distance education, and face-to-face education.

Magnet schools have been around for 50 years.

Unidentified Justice: --But suddenly it changes, and it's not education any more if you're getting it in a religious school.

Why is that?

Mr. Chanin: We're not saying it's not--

Unidentified Justice: Unless there's an endorsement of religion involved here, I don't see why the fact that some of the money, even most of the money goes to religious schools makes any difference.

Mr. Chanin: --Well, because you have a basic proposition that we build our case on, which the Court has adopted, and it is this.

If public money that is reasonably attributable to the State is used to pay for a religious education, it violates the Constitution.

The only way in which it's not attributable to the State is if it doesn't go there by virtue of a State action or a State decision, but the circuit is broken, and the circuit is broken because in between, standing between the State and standing between the schools, is an independent party with decisionmaking to divert it away.

There is no intervening party with decisionmaking here.

The parents play a ritualistic role in the transmission process, and if I am a parent, and I am holding a voucher in my hand, I can say, where can I use it, and 99 of my 100 choices is, send my child to a religious school.

Unidentified Justice: Well, suppose it weren't that number.

I mean, our decision, I take it, would have to govern lots of programs in lots of school districts, and suppose that a particular program in a particular school district was set up for the best possible reason, educate the children, and there's no other way, and suppose, too, that you would have very, very good parochial schools, and also some very, very good private schools, and let's suppose the numbers were several hundred million dollars, and so parents getting the money, about half of them sent them to parochial schools and about half of them sent them to private schools.

Now, suddenly, does the constitutional balance change?

Mr. Chanin: Not in my mind, Your Honor.

Unidentified Justice: And so all this 99 percent doesn't make that much difference.

Why not?

Mr. Chanin: It... I focus on it because it makes it clear to the Court, I hope, that this isn't even a close-to-the-line case.

This is so far to the polar end of the continuum that even if the Court may, in particular cases, have to make judgments on the specific facts, this is not one of those cases.

Unidentified Justice: All right, so what is your response if it's 50-50, and you have hundreds of millions of dollars, and--

Mr. Chanin: My response is--

Unidentified Justice: --what they're saying, remember, is private--

Mr. Chanin: --My response is it's unconstitutional.

Unidentified Justice: --Because?

Your response--

Mr. Chanin: Because of the criteria that this Court used in Witters.

What the Court used in Witters, it didn't just say the program is constitutional in Witters.

It told us why it was constitutional.

It said, it's constitutional because the aid recipients have generally independent and private choice, and then the Court went on to say what that meant.

It said, Witters could choose from a huge variety of options, most of which were secular.

It said that only a... an insignificant portion of the total program money will end up going to sectarian schools.

Those were the criteria.

It seems to me there may be a case, a different case, in which the Court will have to determine what do the words, substantial portion, significant amount, huge array of choices mean, but the Court does that all the time.

It's the normal line-drawing.

Unidentified Justice: --No, but let me sure I understand--

Mr. Chanin: This is not a line-drawing case.

Unidentified Justice: --Let me just be sure I understand your position.

Supposing there are 10 schools out there, 10 private schools, nine of which are nonreligious, and one of which is religious, but the Government money will pay the tuition of the... for the parents who choose the religious school.

Is that, in your view, consistent with the Establishment Clause or not.

Mr. Chanin: Oh, that's clearly unconstitutional, Your Honor.

Unidentified Justice: So even if it's 10 percent.

Mr. Chanin: Oh, no.

That... I'm only... I'm responding to I think--

Unidentified Justice: So we've got two extreme--

Mr. Chanin: --Justice Breyer put to me was, there's a choice--

Unidentified Justice: --See, the interesting thing, if I understand the case correctly, your view is, if any one school gets the money, it's unconstitutional.

Mr. Chanin: --No.

No, Your Honor.

Unidentified Justice: Oh, I thought you said yes.

Mr. Chanin: No.

I'm sorry if I... I did not.

Or, I may have, but I didn't mean to.

[Laughter]

Unidentified Justice: Well, what is your answer if there are 10 schools, nine nonsectarian, one sectarian?

Mr. Chanin: I think that is a borderline case, but if it's structured this way, I'm a parent--

Unidentified Justice: Well, say there are 100, and 99 nonsectarian and one--

[Laughter]

Give us something that isn't borderline.

Well, I'm really trying to find out what your position is.

Mr. Chanin: --I think I can explain it relatively simply.

If Government money that is attributable to the Government is paid directly to a religious school to pay for a religious education--

Unidentified Justice: Well, my hypothetical--

Mr. Chanin: --it's unconstitutional.

Unidentified Justice: --is that in this... and the Government says... you pick your school.

There are 100 of them out there.

One of you picks a parochial school, we'll pay the tuition.

Mr. Chanin: Okay.

Unidentified Justice: We'll send a check direct to the school.

Mr. Chanin: All right.

Unidentified Justice: That's unconstitutional?

Mr. Chanin: But do I also--

Unidentified Justice: And your opponent says it's constitutional if 100 percent, so--

Mr. Chanin: --But I have to know the choice you're giving me as an aid recipient.

Are you saying to me, I can use that money at this one religious school, or at the other 99?

Unidentified Justice: --No, I want to use that money at that one... my private choice is to have my child go the sectarian school.

Mr. Chanin: Absolutely violates the Establishment Clause, in my opinion.

Unidentified Justice: Why?

Mr. Chanin: Because certainly I can say, without hesitation, nothing broke the circuit between the State and the general coffer of the sectarian school, your aid recipient in your hypothetical had no choice whatsoever.

The only choice was to stay in the public schools or go into a religious school.

That is not the kind of choice that this Court referred to in Witters or in Nyquist.

Unidentified Justice: Well, what if, in Justice Stevens' hypothetical, the State would pay the tuition to the nonsectarian private schools, too?

Mr. Chanin: Oh, I think that's Witters.

Unidentified Justice: What breaks the circuit in my 50-50 case?

You say it doesn't break the circuit, but they're saying, well... the petitioners say, we gave the money to the individuals.

It was the individuals who decided, and they had an equal choice between church-related schools and private ones, other ones, and so that broke the circuit.

Now, your response to that is what?

Mr. Chanin: My response to that is, if this Court concluded that the words, significant amount, huge array of choices, if the Court concluded, as an abstract proposition, that those standards were met on 50-50, I would be most unhappy, but I would conclude that the program was constitutional.

Unidentified Justice: No, no, but give me... not the case, but give me the rationale.

Mr. Chanin: The rationale is this.

We need to break the circuit.

The only case--

Unidentified Justice: They say it does.

Now, forgetting the cases, they say it does, so why doesn't it?

Mr. Chanin: --Well, I would not forget the cases.

I'd say, I don't accept what they tell me.

I want to hear what you've said, and I would say the one case in which you allowed financial aid to go to pay the tuitions of a religious school was Witters, and then I'd say to myself, why did you do it in Witters, and words would pop out to me, huge array of options, only an insignificant portion would end up in sectarian schools.

That, said the Court, is genuine, independent private choice, because of the numbers.

Unidentified Justice: Well, let me ask you this.

Suppose the program were, if the parent chooses the sectarian school, we'll give you a voucher of $2,500.

If the parent chooses the community school, we'll give you a voucher of $4,500?

Mr. Chanin: Your Honor, it's an unreal hypothetical.

Unidentified Justice: Well, it's not, because in effect that's what's happened here.

Mr. Chanin: No, it isn't because the... everybody--

Unidentified Justice: The community school gets $4,500 a head, and parochial school $2,500, so if it were done by a little voucher working that way, then what is your answer?

Mr. Chanin: --It would be no... it would be un... a violation of the Constitution.

Unidentified Justice: Would it?

Mr. Chanin: And it would be because--

Unidentified Justice: It wouldn't be perceived as--

Mr. Chanin: --I think it would, Your Honor.

That is no different than saying--

Unidentified Justice: --giving undue help, or endorsing the religious school.

Mr. Chanin: --It's no different than saying, you can take a voucher, you can leave public education and go to a religious school, or you don't limit it to community schools, or, I'll give you money to go to a community school, I'll give you money to go to a magnet school, I'll give you money to go to a traditional school.

The choice that you are positing for me is, the choice is between staying in the public schools with whatever the public schools may offer--

Unidentified Justice: Well, we haven't been--

Mr. Chanin: --or leaving to go into private school.

Unidentified Justice: --We haven't been referring to community schools as public schools.

The public school system that failed was the traditional old public school system in the community.

The community schools are basically private schools that are getting a different kind of State aid.

Why shouldn't they be considered?

Mr. Chanin: They are not private schools, Your Honor.

They are public schools.

They are subject to Government control.

They are just a method or a mechanism by which the State has chosen to provide a species of public education.

There is a bright line distinction between the public school system in which the community schools fit, and private education in which the voucher parents can take their money.

It is simply--

Unidentified Justice: Do these community schools have to accept all-comers?

Mr. Chanin: --There are certain... they cannot discriminate on certain bases.

There are a lot of--

Unidentified Justice: Right, but can they say, we're only going to take kids who pass a certain test, a certain entry exam?

Mr. Chanin: --I'm not sure you can base it on academic achievement.

Unidentified Justice: It doesn't sound much like the public school system to me.

Mr. Chanin: Pardon me?

Unidentified Justice: It doesn't sound much like the public school system to me.

Mr. Chanin: Well, it is, Your Honor.

Magnet schools do that.

Unidentified Justice: Well, but why is there the bright line that you talk about which separates community schools from private schools and aligns them with... other than the fact that they're run by the Government?

Here, the community schools, as I understand it, were set up because they wanted to get away from the kind of failing system that so many public schools are, and do something different.

Mr. Chanin: Because, Your Honor, if the concept of breaking the circuit is going to have any meaning, you have to draw a line, and the only rational line to draw is between public education and private eduction.

Unidentified Justice: Well, but you've said that time and again--

Mr. Chanin: I--

Unidentified Justice: --but you can tell members of the Court are--

Mr. Chanin: --I say it because--

Unidentified Justice: --Well, I--

Mr. Chanin: --I didn't mean to interrupt you, Your Honor.

Unidentified Justice: --You'd better not.

[Laughter]

Mr. Chanin: Is it too late?

Unidentified Justice: You can see a number of members of the Court are really not satisfied--

Mr. Chanin: No.

Unidentified Justice: --with that explanation.

May I ask this question, is it true that the group you put on one side of the line, there's no tuition in those?

Mr. Chanin: There is no tuition.

Unidentified Justice: So those are all free schools, supported... where the others, there's tuition.

That's the line, isn't it?

Mr. Chanin: Can I... could I try once again on another--

Unidentified Justice: By all means.

Mr. Chanin: --example here?

The prototype that this Court has set out for us of genuine, independent, and private choice, is a Government employee.

The Government can pay that employee the paycheck, and that... even knowing that the employee intends to donate all or part of it to a church, all, with no constitutional problem, because the employee has independent discretion.

He can spend that paycheck any way he wants, for whatever purpose he wants, with no control or direction from the Government.

Now, you use that as your analogy of genuine and independent choice.

You don't say that Government employee has independent choice--

Unidentified Justice: Mr. Chanin--

Mr. Chanin: --because he didn't have to come work for the Government in the first place.

Unidentified Justice: --Mr. Chanin--

Mr. Chanin: He had all kinds of options.

He could have worked everywhere else.

Unidentified Justice: --Mr. Chanin, may I ask you a question, because I think we understand the case of the Government employee turning over his paycheck to the Salvation Army, or whatever.

Suppose the suburban schools had been included in this mix, that instead of saying, come in if you want, and then the reality is that none of them do, suppose all those school districts surrounding the city were made to be part of the program, and the parents had the choice of sending their children to those public schools, or to the religious private schools, would you then say that... would it make any difference, that is, if the public schools in the suburban communities were made to participate in this program?

Mr. Chanin: It would make a difference, but I could not answer as to whether it would be constitutional or unconstitutional as far as the program is concerned, until I saw the specifics of that program, are those public schools a really meaningful type of choice for an inner city child in Cleveland, and I'd also have to make a legal analysis of whether that really is just another way in which the State of Ohio is providing a public education.

Unidentified Justice: Mr. Chanin, can you tell me how we get from here to there?

Here we have a failed inner city school system, and the State says, part of the problem with this is monopoly.

We just have to provide diversity, let parents choose a good education.

Now, it so happens that the only up-and-running schools that happen to be in the inner city are religious schools, educating the poor people in the city at relatively low rates.

The State of Ohio adopts a program which allows suburban schools to accept these inner city kids, but the suburban schools say, oh, heck no, we don't want the inner city kids come into our suburban schools.

How does one get from here to there?

The only schools that happen to be there right now are religious schools.

This doesn't mean that the program will always be that way.

The experience in Milwaukee was that as the program continued, there were more and more nonreligious private schools, but right now, to start off with, of course they're mostly religious, and that is going to destroy the entire program, so that we can never get from here to there.

Mr. Chanin: I do not believe, Your Honor, that a crisis in the Cleveland public schools is a license to ignore the mandate of the Establishment Clause, nor do I think it's a mandate to say, ignore it for a while because in a few years it may--

Unidentified Justice: Tell us how to get from here to there.

Mr. Chanin: --I will tell you, Your Honor--

Unidentified Justice: What do you do, abolish all the religious--

Mr. Chanin: --No.

Unidentified Justice: --schools in the inner city--

Mr. Chanin: No.

No.

Unidentified Justice: --and then start from scratch--

Mr. Chanin: I'll tell you just what it should do.

Unidentified Justice: --so that all the schools that start up won't be religious?

Mr. Chanin: What the State of Ohio should do in this specific case is exactly what the Ohio supreme court's been telling them to do for 10 years to deal with the problems in Cleveland.

It's telling them, there are innovative programs within the public schools, refinance your schools, provide resources, and do that.

Instead--

Unidentified Justice: They've spent already $7,000 per child, which is above the average in the rest of the country.

It isn't a money problem.

Mr. Chanin: --The--

Unidentified Justice: It's a monopoly problem.

Mr. Chanin: --No, Your Honor, not according to the Ohio supreme court.

According to the Ohio supreme court, which just struck down as inadequate the financing structure of the Ohio school system and has been directing it for 10 years to restructure it and put in more remedial classes, smaller classes, free kindergarten classes--

Unidentified Justice: Mr. Chanin, it's very clear to me that Ohio had that option.

The question is, is it unconstitutional for them to choose an option that they think has more likelihood of success, and Justice Scalia put the point that what they're trying to do is have a structure in which different school systems, different curriculums, curriculums that do not inflict terminal boredom on students, can begin to flourish, and the question is, how can they do that in the long term, and you say they cannot do it.

Mr. Chanin: --No, I say this, Your Honor.

I say that the Ohio legislature has the right to make an educationally unsound judgment.

It does not have the right to make an unconstitutional judgment.

It must solve the problems in Cleveland within the parameters of the Establishment Clause, and as the brief that... the amicus brief filed by the National School Boards Association indicates, there are numerous programs that were available to it.

There are problems being solved in urban school districts all over the country without voucher program.

We have not said much about the educational value vel non of voucher programs, because we don't think that this is a forum for an educational policy debate, but they are a lousy option, and we refer you to the amicus brief of the National School Boards Association.

The evidence is conflicting.

There is no evidence that competition improves the lot for the 96 percent of the students who remain in the troubled Cleveland Public School System with less resources and even worse problems.

If there are no further questions, thank you, Your Honor.

Unidentified Justice: Thank you, Mr. Chanin.

Mr. Frankel, we'll hear from you.

ORAL ARGUMENT OF MARVIN E. FRANKEL ON BEHALF OF THE RESPONDENTS GATTON, ET AL.

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

Coming in at this point, I come in in a way toward the beginning and also toward the end of Mr. Chanin's argument.

The discussion of this problem long ago began with talk of a crisis in the public schools of Ohio, and that talk in a strange way has gotten lost in the shuffle as the Court has ranged widely, necessarily but widely, over Establishment Clause questions for which I am now about to submit this may be a strangely incongruous vehicle for a decision.

As was just pointed out toward the end of what Mr. Chanin was saying, you had a determination sometime ago by the supreme court of the State of Ohio that its system of public school financing is unconstitutional under Ohio's own constitution.

Now, we in our submissions early felt that that was an important threshold question to be looking at, very possibly before you got into big, Federal constitutional questions, and so we have briefed it.

We briefed it in the Sixth Circuit, and we briefed it in this Court.

Somewhat remarkably, that question of whether Ohio's school financing system is unconstitutional under its own constitution--

Unidentified Justice: But Judge Frankel, wasn't that on the ground that it used the single subject title, rather than--

Mr. Frankel: --No, Your Honor, it had nothing to do with that case.

That was a quite separate case called DeRolf, which was decided in 1997.

Under that decision, ever since 1997, Ohio's system of financing its public schools has a) been unconstitutional as a matter of Ohio constitutional law and b) under ongoing repair, which is in progress this very day, and is approaching completion of repair.

Unidentified Justice: --Judge Frankel, you are going to tie this in to the question presented in this case?

Mr. Frankel: I hope so, Your Honor.

Unidentified Justice: That was a program designed to rescue economically--

Mr. Frankel: I hope so, Your Honor--

Unidentified Justice: --All right.

Mr. Frankel: --for this reason, because I want to raise a question whether this Court doesn't reach hard questions first is present here, whether the much-debated Establishment Clause questions are as essential as the Court has been led to believe they are in this case, and whether a decision leaving the Establishment Clause jurisprudence where we think it should stay will be an appropriate resolution for the interests of Ohio and its poor children.

Unidentified Justice: Your assumption, Judge Frankel, is that the problem is a problem of money.

That's all that the supreme court of Ohio--

Mr. Frankel: Is what, Your Honor?

Unidentified Justice: --Is a problem of money--

Mr. Frankel: Not only--

Unidentified Justice: --and the studies that I'm familiar with suggest that that is not the case.

Mr. Frankel: --Whatever people suggest--

Unidentified Justice: Please let me finish, sir.

Mr. Frankel: --I'm sorry.

Unidentified Justice: The studies that I'm familiar with say that the inner city parochial schools, which spend much less per child on education, do a much better job than the public schools that spend much more, so I just don't think it follows that once you solve a constitutional problem that will get more money, you're going to solve the difficulty that the people of Cleveland found with their public schools.

I don't think that necessarily follows.

Mr. Frankel: Your Honor, there is mostly anecdotal material comparing the kind of job that's done in parochial and secular schools.

Unidentified Justice: Oh, I don't think it's anecdotal at all.

I mean, there are extensive studies that show that parochial schools do a better job.

Mr. Frankel: With all--

Unidentified Justice: I mean, these are studies by, you know, educational scholars.

Mr. Frankel: --With deference, Your Honor, I don't think that the difficulties that I'm trying to suggest about the Court's getting into the details of some of the Establishment Clause cases that have been mooted here are avoided by looking what is said to be a comparison between parochial schools and public schools.

Certainly, as you compare the subject of affluence from district to district, which was the guts of the Ohio decision that I refer to, the problem of comparative qualities changes quite markedly, and you don't have the same kind of problem.

In fact, what you have in Ohio, and a basis for the holding of unconstitutionality, is vast regional disparities between the public schools in affluent districts and the public schools in impoverished districts.

Unidentified Justice: Mr. Frankel, did you make this argument to the court of appeals?

Mr. Frankel: Yes, Your Honor.

We raised--

Unidentified Justice: And how did they deal with it?

Mr. Frankel: --Well, Your Honor, it sort of slipped by--

[Laughter]

--but we made a point that... let me put it this way.

I think in fairness to me and the court of appeals, arguments undergo some sea changes as you go from court to court.

We raised this 1997 decision, DeRolf, as a threshold problem that ought to be looked at before you got into wide Establishment Clause questions.

On the Establishment Clause, I should add we are as one with our friends here.

Unidentified Justice: Did you cross-petition for certiorari in this case?

Mr. Frankel: No, Your Honor, we didn't think we had any occasion to do that.

Unidentified Justice: You brought the lawsuit, though.

You brought the lawsuit.

Mr. Frankel: We won the lawsuit.

Unidentified Justice: Yes.

Mr. Frankel: And we didn't believe... I still don't believe we had occasion to do that.

Now, what's happened--

Unidentified Justice: Mr. Frankel, may I ask you, has the... have the Ohio courts ever passed upon this question?

I know they passed on the single statement issue under the Constitution.

Was that issue before the Ohio courts when they passed on the single issue matter?

Mr. Frankel: --The Ohio supreme court, Your Honor, in what we consider obiter, said it found consistency with the Establishment Clause, but it had already held its statute unconstitutional on State grounds, so we never could reach that.

That's why we came to the Federal court.

Now... so we've never had that question adjudicated.

Unidentified Justice: But the fact that it issued the obiter indicated that it was not concerned with the point that you're now making, and that's the highest court of the State.

Mr. Frankel: It was not concerned with... I didn't hear Your Honor.

Unidentified Justice: With the point that you're now addressing to us.

Mr. Frankel: No, Your Honor, it didn't take proper concern of everything that we thought it should have looked at.

What I am saying is that in the midst of Ohio's efforts, which are almost completed, to resolve whether Mr. Justice Scalia has the answer or not, the great core problem of public education in Ohio, in the midst of that, they come slicing across this situation, having held their own system unconstitutional in 1997, and they create this voucher program.

Well, there we are.

We're served up with a voucher program, so we look at it, and looking at it, we have argued, and Mr. Chanin has sufficiently covered that, that it is unconstitutional, and we think their effort to defend it is somewhat slap-dash, especially, for example, when they try to defend proselytization in a few hasty paragraphs, overturning 50 years of precedent, as they would hope, and saying proselytization with Government money is okay, where we say that the law since 1948 has been to the contrary, and that's because this voucher program came in, as it were, by the ears, while they were busy working on other, more fundamental things that may well... and I don't know, Mr. Justice Scalia, and I don't think any of us knows that may well go far to solving--

Unidentified Justice: Thank you, Mr. Frankel.

Mr. Frankel: --Thank you, Your Honor.

Unidentified Justice: Ms. French, you have 4 minutes remaining.

REBUTTAL ARGUMENT OF JUDITH L. FRENCH ON BEHALF OF THE STATE PETITIONERS

Mr. French: Thank you, Mr. Chief Justice, I have four points.

First and foremost, the Ohio supreme court upheld the constitutionality of this program under the Establishment Clause, and approved its use as one solution for solving the problem in Cleveland and for any school district that might find itself in a similar unfortunate situation.

Second, it appears that respondents have either ignored or do not accept the last 20 years or so of this Court's jurisprudence.

Each of the legal principles they have raised here today and in their briefs have been expressly rejected by the Court.

Their reliance on percentages was expressly rejected by this Court in Mueller.

Their arguments about substantiality of the aid going to religious schools was rejected by five members of the Witters Court.

Their question about indoctrination, or proselytization, has been specifically rejected by this Court in the cases involving true private choice, Mueller, Witters, Zobrest, and confirmed again in Agostini and Mitchell most recently.

Third, and Your Honor, I believe this goes to your question, Justice Breyer, and your concerns, Justice O'Connor, about the breadth of options that are offered to all Cleveland students, the State of Ohio has looked to every conceivable educational option available, to include all Cleveland students, to include all-comers in terms of students and schools.

Unidentified Justice: Are community schools public schools in Ohio?

Mr. French: They are considered public schools, Your Honor.

Unidentified Justice: They have separate boards?

Mr. French: They do.

Unidentified Justice: Separate employees?

Mr. French: They do.

They do have separate employees.

Unidentified Justice: And not the same control over content of programs?

Mr. French: That's right, Your Honor.

It is separately, it's not--

Unidentified Justice: It's publicly financed?

Mr. French: --Yes, Your Honor, and it does have the same sorts of financial requirements.

They get audited a little differently.

There are more controls, but it is slightly different, because it's not--

Unidentified Justice: They charge tuition, though?

They charge--

Mr. French: --Community schools do not charge tuition, Your Honor.

Unidentified Justice: --Do not charge tuition?

Mr. French: And in answer to your question earlier to Mr. Chanin, it's open to all-comers.

If they have... if they don't have enough spaces available for all who have applied, they must accept students on a lottery system the way that a public school would have to accept all-comers.

The scholarship program, though, among all of this array of options, is really the poor relative.

They get less money, parents have to pay tuition, and they get no tutorial grants.

Perhaps the best way to describe the array of options is that at the eye-level of parents.

This Court has said it is important in Rosenberger and again in Justice Powell's concurrence in Witters, that it is important to view all of the circumstances, view all of the consequences as a whole.

What respondents seem to want us to do is exclude the religious schools as an option.

This Court on many occasions has told us that we can neither inhibit nor advance religion, and that would certainly be the cause there.

Finally, it is apparent from the Court's questions and respondents' arguments that the Ohio general assembly had a number of competing and conflicting considerations before it in the face of and in an environment of an educational crisis it needed to solve, and to solve quickly.

It seems that Ohio did it right.

It didn't take too much money away from the public schools, but gave enough for a limited program that is targeted to the most needy, the poorest of the poor, the low income students who would not otherwise have choice.

It is for that reason that we ask the Court to overturn the decision of the Sixth Circuit and uphold this program.

Thank you.

Chief Justice Rehnquist: Thank you, Ms. French.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Mitchell v. Helms - Oral Argument

Fri, 09 Jan 2009 14:50:19 +0000

Case:

Mitchell v. Helms

Media File:

98-1648_19991201-argument.mp3

Related Transcript:

1999_98_1648_argument.xml

Transcript:

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.

Ms 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...

Ms Underwood: Yes.

Justice O'Connor: requirement.

Ms 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.

Ms 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?

Ms 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.

Ms Underwood: Well, I...

Justice O'Connor: Ms. Underwood...

Ms 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?

Ms 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?

Ms 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.

Ms 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?

Ms 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.

Ms 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?

Ms 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.

Ms 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?

Ms 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.

Ms Underwood: Yes.

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

Ms Underwood: That's correct.

Justice Souter: And the reason is?

Ms 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.

Ms 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?

Ms 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.

Ms 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?

Ms 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.

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Agostini v. Felton - Oral Argument

Fri, 09 Jan 2009 14:50:06 +0000

Case:

Agostini v. Felton

Media File:

96-552_19970415-argument.mp3

Related Transcript:

1996_96_552_argument.xml

Transcript:

Argument of Walter E. Dellinger, III

Chief Justice Rehnquist: We'll hear argument now in Number 96-552, Rachel Agostini v. Betty-Louise Felton, and a consolidated case.

General Dellinger.

Mr. Dellinger: Mr. Chief Justice and may it please the Court:

We ask you today to overrule Aguilar because it is inconsistent with this Court's Establishment Clause decisions and because it continues to impose burdens that seriously impair the Federal Government's critical title I program.

I would like to discuss both the reasons why we believe that this is an appropriate procedural posture for the reconsideration of Aguilar, and why we believe that a decision to overrule Aguilar need not require any major doctrinal revisions of this Court's Establishment Clause jurisprudence.

In brief, the critical features that support the constitutionality of on-premises services under title I and the lifting of the outstanding injunction are these.

Unlike all of this Court's other primary and secondary parochial school aid cases, this case involves an act of Congress that provides new and additional resources to both public and private school students.

Ninety-seven percent of the funding under title I goes to children who are in public schools.

These services are completely secular.

They are required by law only to supplement and not to supplant any necessary educational--

Chief Justice Rehnquist: General Dellinger--

Mr. Dellinger: --Yes.

Chief Justice Rehnquist: --you're not suggesting that an act of Congress should be treated any differently than an act of a State legislature, are you, for purposes of Establishment Clause jurisprudence?

Mr. Dellinger: No, I am not, Mr. Chief Justice.

What I intend to suggest by that is that many of the State acts that this Court has struggled over provided funds... since there was a background of public education provided funds just for nonpublic schools.

The Ohio act in Wolman v. Walters was an $88 million appropriations for the nonpublic schools.

This is a national act, where Congress is for the first time in 1965 trying to deal with the problem of low income, learning-disabled and learning-handicapped children Nation-wide in providing funds to so broad a group.

Of the 6.4 million, for example, 6.2 million went to public schools.

It's so broad a group.

Justice Souter: Do you take the position that Congress, or for that matter a State, could simply appropriate money generally for the teaching of secular subjects and that money could go into the parochial schools without a First Amendment problem?

Mr. Dellinger: We do not, Justice Souter.

Justice Souter: Well, how do you draw the line?

You have spoken of this as being a supplementation of what is regularly done, but as I understand it, the money is spent on what are called remedial programs.

In other words, if a group of children or a child cannot read at whatever the grade level, this money is used to provide special training, but it seems to me that what that boils down to is teaching a child to read, or teaching a child who can't add how to do math, and I don't see what the distinction is between the supplementation and simply the school's normal mission to teach reading or to teach math, or whatever the secular subject is.

Mr. Dellinger: Justice Souter, I think it is well-established that... though I do agree that there's no bright line between remedial mathematics and other math, but what is critical is that the Federal title I money was so clearly intended to be, and the statute and the regulations require it to be, a supplementation that goes to the benefit of these low-income needy children that I do not think this case raises the question that would be raised when taxpayer funding takes over a significant portion of the regular educational curriculum.

That is, the... it is not unfamiliar throughout Federal law for Congress to have requirements, as title I does, that the funds should be used to supplement and in no case supplant the level of services that would in the absence of this funding have been available.

Justice Souter: Well, what if Congress comes along and says every school district in the United States that spends less than X dollars per pupil will be subject to supplementation by Federal grant for the teaching of secular subjects, and this money can go to parochial as well as private schools.

Would that fall under the rubric of legitimacy that you urge this morning?

Mr. Dellinger: As you describe it, I believe that that would cause a more far-reaching revision of the Court's Establishment Clause jurisprudence than anything we--

Justice Souter: How would we draw the line?

Mr. Dellinger: --seek here.

Justice Souter: Congress would say this is a supplement for poor school districts.

Mr. Dellinger: You draw the line here because this appropriation has none of the indicia of Congress providing the support that then enables the institution to engage in its religious function more fully.

For example, in the case--

Justice Souter: Well, it allows parochial schools to teach reading better than they could teach it otherwise just as public schools can teach reading better than they could teach it or are teaching it otherwise, so I don't see how we draw the line.

Mr. Dellinger: --Well, first of all, that is, of course, as true under the program as it has existed from 1965 to 1997 as it is under the issue that is before is here.

There's still the--

Justice Souter: Except--

Mr. Dellinger: --There's the same supplementation--

Justice Souter: --Except that at least an attempt is made to draw a visual line, if you will, between what the school is ultimately accomplishing and the secular source by which it is accomplishing this extra objective.

There's an attempt made to avoid an appearance endorsement kind of problem, and on your scheme there wouldn't be an attempt made.

Mr. Dellinger: --Here, I believe the attempt is not only made but it is fully successful to differentiate this program from a program like Grand Rapids v. Ball, which we are not challenging, which we... in this submission at all.

Justice Scalia: General Dellinger--

Mr. Dellinger: Yes.

Justice Scalia: --I assume that it enables a parochial school to teach better if you allow a person who knows sign language to enable its deaf students to understand what is being taught in a class better.

That enables a parochial school to do a--

Mr. Dellinger: Of course it does, Justice Scalia, as does--

Unknown Speaker: --And we've approved that.

We've approved that, haven't we?

Mr. Dellinger: --Right, and... in Zobrest you approved that.

It is accepted.

You can have school lunch programs.

You can have health programs.

We have a wide range of programs.

Zobrest and Witters I think are decisions by this Court that have clearly--

Justice Scalia: We've crossed that line.

Mr. Dellinger: --You have crossed the line--

Justice Souter: Well, have we crossed the line, then, to the point of saying that any aid for the teaching of a secular subject in a parochial school is therefore constitutional?

Mr. Dellinger: --I don't think you have crossed that line for this reason.

If you take a case like Grand Rapids that has a very different profile, where 40 of the 41 schools that were benefited were sectarian schools, unlike the 3 percent here, and where the courses that were provided were courses provided that were a part of the school curriculum... in fact, they were ordered up by the school.

They were much more woven into the normal school day.

This is a title I service which is provided to kids, low-income educationally deprived children who need this service, and what this Court's decisions I believe in Zobrest and Witters and Bowen v. Kendrick reject is an arbitrary, rigid, formalistic notion that you cannot have those services provided by a public employee who is hired, fired, supervised, and paid by other public employees inside the school building, but instead you must make children... and in this case, 70... a majority of these kids are in grades 1 to 3.

Justice Ginsburg: General... General--

Mr. Dellinger: Seventy percent are nonhigh school.

Yes.

Justice Ginsburg: --General Dellinger, may I deflect you for a moment, because you're launching right into the merits as you did in your briefs, and you have to get your foot in the door properly.

I do not know of any use, ever, of 60(b) such as we see here, essentially to gain rehearing by this Court, so if you could spend just a couple of moments--

Mr. Dellinger: I would be glad to, Justice Ginsburg.

You are correct that this... we do not know of another instance in which Rule 60(b) has been used in this way, but maybe for very good reasons.

That is, the understandable reasons may be that they are in a... in a messy and complicated country like ours, there are usually lots of other cases that bubble up, other jurisdictions that simply don't comply with this Court's holdings, but here the Secretary of Education will not permit any school district in the United States to provide these services on premises, so that there is for that reason unlikely to be an issue.

Justice Ginsburg: --What about the two cases that are... are there not cases involving State law similar to title I, one in Louisiana and the other, is it in Minnesota?

Mr. Dellinger: --Two responses.

First of all, as I said, I think those may well be different than a program of the breadth of title I, but secondly there is no suggestion... there have been a series of cases where the provision of these title I services off-premises has been challenged.

The courts have upheld against Establishment Clause challenge those cases, and those who brought the case have not sought certiorari in this Court.

I think that there must be some way for a court to modify one of its own prior judgments that has continuing prospective effect.

Justice Breyer: I'm just curious, why can't the Secretary of Education create a test case, if... I mean, why couldn't--

Mr. Dellinger: Because he believes--

Justice Breyer: --exactly what you said, the laws change in our opinion and therefore we think in this partic... you know, deliberately do it in order to raise the issue in a different--

Mr. Dellinger: --That is a fair enough question, Justice Breyer.

I believe that the Office of Legal Counsel's proper response would be, though we read the law to have changed since Aguilar, we do not believe that the Secretary of Education any more than a district court judge should go directly in the teeth of a decision of this Court which this Court has not itself overturned.

In fact, I think--

Justice O'Connor: --Well, that's part of the problem, General Dellinger, really, because we're reviewing, are we, an action by the district court judge?

Mr. Dellinger: --Yes, you are.

Justice O'Connor: Under 60(b)?

Mr. Dellinger: Yes.

Justice O'Connor: And we have to find that that judge abused discretion in refusing the 60(b) reopening, and yet that judge could look at Aguilar and say, I just don't have room to do that.

That's the Supreme Court's holding.

How am I supposed to reopen this case?

How do we deal with that?

Mr. Dellinger: Justice Ginsburg--

Justice O'Connor: I wean, it isn't as though it's coming directly--

Mr. Dellinger: --Yes... no--

Justice O'Connor: --to this Court--

Mr. Dellinger: --No.

That is correct.

Justice O'Connor: --We're reviewing the action of the district court, so--

Mr. Dellinger: That is correct.

Justice O'Connor: --So what standard do we apply there?

How did the district court abuse its discretion in saying, boy, it isn't up to me?

Mr. Dellinger: You approach that exactly as you do a case in which you're up on a preliminary injunction but the question is a rule of law, and this Court has held that the abuse of power general standard, which is a discretionary standard for the orderly administration of justice, cannot force this Court into making an erroneous decision of law just because a district court on a preliminary injunction or in this context or in any other got it wrong as a matter of law.

Justice Ginsburg: General Dellinger--

Justice Kennedy: --Well, but the focus... the focus, it seems to me, of Justice O'Connor's question is, what do you tell the district judge... if you're the law clerk for the district judge, or the counselor to the district judge, one of the attorneys, what do you tell him he should do in this case?

It seems a little strange to say he abused his discretion by following the law.

On the other hand, we know that abuse of discretion is sometimes a too-onerous word to describe what the... phrase to describe what the judge has done.

He's made a mistake of law.

Mr. Dellinger: Justice Souter, you... I'm sorry, Justice Kennedy, you inform the district judge as he anticipated in this case, that the rule of law he was required to apply is not what this Court believes is currently the rule of law.

Justice Ginsburg: General Dellinger--

Mr. Dellinger: This is not... yes.

Justice Ginsburg: --Isn't it so that under our precedent a district judge is locked in?

He has no authority to overturn a decision of this Court and, indeed, the district judge would have abused his discretion if he said, I predict that the Supreme Court is going to overrule Aguilar?

Mr. Dellinger: If he followed that by ruling and not applying Aguilar you're exactly correct, and we told the district judge that.

Justice Ginsburg: The district judge and the court of appeals both said, I think quite correctly--

Mr. Dellinger: Right.

Justice Ginsburg: --that they... there was nothing that they could do, so if we're going to be candid about what's involved here, isn't it really a request for rehearing by this Court, and the 60(b) is just a pass-through, because stage 1 and stage 2 cannot do anything but reject the application?

Mr. Dellinger: Your premises are correct, but the conclusion is wrong, and it's wrong for this reason.

This would be no different if a new case were brought, if there were a new school system that started providing these services in school and there were a lawsuit the district court in that case in Chicago or Milwaukee or wherever would be just as bound by Aguilar v. Felton as the district judge in the Southern District of New York, and would come up--

Justice Souter: And the school district could appeal the denial of the order that it wanted, and this Court could rule on it without, in effect, granting a rehearing on a prior case in which the judgment was final.

Mr. Dellinger: --That is--

Justice Souter: That's the way the law--

Mr. Dellinger: --I would not say that this is--

Justice Souter: --That's the way the law gets changed--

Mr. Dellinger: --I would not say that this is in effect a rehearing, because it is quite useful to have the screening mechanism of district courts.

Here--

Justice Souter: --Well, it may be useful, but I don't see on your principle why any losing litigant subject to a continuing order cannot come in at any subsequent time so long as that order remains pending and say, perhaps for very good reason, I would like another shot at arguing the law.

Mr. Dellinger: --The reason is, Rule 11 sanctions, if there's no predicate for it.

The reason--

Justice Souter: Why should there be a Rule 11 sanction if this is allowed?

Mr. Dellinger: --Because, Justice Souter, what this permits is a party who has got a basis for believing that an injunction which has continuing effect no longer reflects the law or the Constitution to seek to have that injunction lifted.

I think it would raise--

Justice O'Connor: Do you rely on the fact that this is a continuing injunction?

Does that somehow enter into the calculus and make your response different?

Mr. Dellinger: --Justice O'Connor, it is critical to the calculus.

It is critical to the calculus because it would raise a very serious question about the role of courts and judges in a constitutional democracy if a party did not have a way to be relieved from a court order.

It is of course--

Justice Souter: Why is that so?

Why shouldn't a party have one opportunity to litigate the case and if then through some other means the law changes, whether it be a statutory change or whether through other litigation this Court takes a different turn, then the party can come in and say, you have changed the law and therefore it's inequitable to leave me subject to it.

Mr. Dellinger: --The question I would--

Justice Scalia: But that's a very different thing from saying it's inequitable to leave me with only one opportunity to litigate the law in my case.

Excuse me.

I thought that the claim here was that the law has changed.

Mr. Dellinger: --That is indeed the claim.

Justice Scalia: The decision in this case hasn't changed, but I thought the assertion is that the law has changed.

Mr. Dellinger: Our point would be for how many years or decades would you expect a party to be under an order which would be tolerable if it reflects the Constitution, but if it just rests upon a judge's determination--

Justice Souter: But General, your premise, the premise of your argument was that the law had not changed and that's why it was not error for the district court to rule as it did.

You're saying that the law has to change in this case before this Court.

Am I wrong?

Justice Ginsburg: May I just add to that that this Court did tell district judges in quite clear terms, it's not your job to predict that the Supreme Court's going to over--

Mr. Dellinger: --That is correct.

That is correct.

That is why--

Justice Ginsburg: --You can't do that.

Only we can do it.

Mr. Dellinger: --That is why we told the district court to do precisely what it did in this case.

Justice Stevens: But did the district court follow the law or not?

Did the district court follow the law or not?

Mr. Dellinger: Justice Stevens, the precise answer is that the district court followed the binding effect of this Court's decision in Aguilar, which we believe no longer reflects the law or the Constitution as it has been articulated by this Court in Zobrest, in Witters, in Mergens--

Justice Stevens: May I do what the Chief Justice often does and ask you yes or no?

Mr. Dellinger: --I'm sorry.

The question is?

Justice Stevens: May I do what the Chief Justice often does--

Mr. Dellinger: --and answer yes or no?

Unknown Speaker: --and suggest to you that the answer is either yes or no?

Mr. Dellinger: Did the district court follow the law?

Justice Stevens: Yes.

Mr. Dellinger: Yes, but the law he followed was by the binding force of the Court's decision in Aguilar v. Felton, a decision which we believe these litigants, who are spending... who have spent $100 million complying with Aguilar, a decision that cost the Secretary $300 million a year in deadweight social loss, that they were entitled to come before you and to tell you that they... while that is tolerable if it reflects the Constitution, since there are decisions that are out there that indicates that it does not, the question is whether the popularly elected officials at the local, State, and national level should be bound merely because judges won't say so where they have a good faith claim.

Justice Ginsburg: Well then perhaps, General Dellinger, we should have, or Congress should authorize some proceeding for rehearing out of time by this Court, but we're talking about stages below this Court where they... there is nothing that they can do except pass the question up to this Court and then this Court will rehear a case that was decided--

Mr. Dellinger: Justice Ginsburg, that is precisely what would happen in any suit brought to challenge Aguilar in any case by any litigant in this country.

It would be passed up because Aguilar is binding on every district, and Congress... and this Court has passed--

Justice Ginsburg: --Well, that's not quite so, is it?

Even in the title... the cases like title I that are in district courts there's a record being developed.

It's a different case, and... isn't that so, in those--

Mr. Dellinger: --That is correct, and there is a record here which could be supplemented on remand, but when Rule 60(b) says that you can get relief where it is no longer equitable, that such a judgment should have prospective application?

Justice Ginsburg: --But 60(b) is a Rule of Civil Procedure addressed to the district court and here the district court can't do anything.

Mr. Dellinger: Because of this Court's holding, but this Court, however, can, as it could from any district court, revise that ruling.

I'll reserve the remainder of my time.

Thank you.

Argument of Paul A. Crotty

Chief Justice Rehnquist: Very well, General Dellinger.

Mr. Crotty.

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

New York City schoolchildren who are poor and educationally disadvantaged are not getting the Title 1 educational help they need because of Aguilar.

Many are receiving remedial education that is less effective than it could be, and the expensive alternatives mandated by Aguilar are taking money that could be used on educating poor, educationally disadvantaged children and spending it on buses and leased sites.

In the 1993-'94 school year there were 260,000 students who received title I instruction in New York City.

This is from a larger pool of 350 to 400,000 who were eligible but couldn't get it because funds weren't available.

Approximately 8 percent, or 22,000 of those Title 1 students, attend parochial school.

Those children received instruction either on buses or with computer-assisted instruction.

Eleven thousand were educated on a bus.

Seventy-five hundred received computer-assisted instruction.

Each of these, according to the Secretary of Education, is not an effective method and it makes it difficult to give a quality education.

If you look at the buses, and there's a picture of the bus in the record, it's noisy because it needs its own generating capacity, so you have generator noises.

It's parked on the city street in New York City.

It's very noisy.

It's cramped.

There are 10 students and a teacher cramped into the back of the bus.

There are small windows.

The windows themselves are caged.

There's no bathrooms, and there's no storage room in these buses, so that the teacher does not have access to books and instructional materials which would be very helpful with discharging the title I teacher's responsibility.

Justice Scalia: It's these children's fault for going to parochial school, I assume.

They could have gone to public school, couldn't they have?

Mr. Crotty: Well, no.

In New York City public schools, Your Honor, are terribly overcrowded right now, and I think they would receive... it would be very difficult for them to receive an education in public schools simply because the public schools are so crowded.

On the other hand, it's their parents' absolute choice under this Court's teaching that they should have an opportunity to educate their children in a parochial school.

Justice Kennedy: Well, let me ask... suppose that it is very expensive and impractical for the program involved to comply with the Establishment Clause.

That doesn't mean that there's no Establishment violation does there, or does there?

Is Establishment--

Mr. Crotty: No--

Justice Kennedy: --a question of practicality?

Mr. Crotty: --Justice Kennedy, no, of course not.

The Establishment Clause, if it did require these expenses, well then, we'd have to pay these expenses.

There's no doubt about that.

The issue here really is, in light of the Court's change in, changing jurisprudence with regard to Establishment Clause in Zobrest, in Witters--

Justice Breyer: Is it a change?

I mean, what is your response basically to Judge Friendly's opinion in Fenton?

Mr. Crotty: --Well, my answer, Justice Breyer, is that there has been a substantial change.

Justice Breyer: What on the merits?

I mean, this hasn't been... the... I found that a rather powerful argument on the other side, Judge Friendly's opinion, purely on the merits, leaving precedent and so forth out of it, so if that's right in the front of your mind... if it's not, I'll ask more specifically, or... but is that opinion... are you pretty familiar with it?

Mr. Crotty: Yes, I am, Your Honor.

Justice Breyer: All right.

So what would your response be to Judge Friendly in... on the merits of the issue?

Mr. Crotty: Well, on the merits, Your Honor, I would say that that is no longer the applicable law.

Justice Breyer: He has a number, four or five reasons why, in terms of the basic purposes of the Establishment Clause, it makes sense, though of course you'll get bizarre cases.

Of course it will mean added expense.

Of course it's not bad for a child to be in parochial school.

It's good.

But in terms of the basic purposes of the Establishment Clause, he points out why that line is a helpful though sometimes irrational line, so I'm interested in what your response to that is.

Mr. Crotty: The answer, very--

Justice Breyer: Basically it was along the lines that Justice Souter was saying earlier, but I don't want to characterize it if you're familiar with it.

Mr. Crotty: --The answer, Your Honor, I believe is that under the teaching not reflected in Judge Friendly's decision, because it occurred subsequently and in this Court, in Zobrest, where you had a child who was handicapped, what the Court said was, when you have a broad program of benefits that are available to everyone, regardless of their religion, it can't be denied to that particular child because he happens to be going to a parochial school.

Justice Breyer: All right, so it's quite clear that a handicapped child, one who is a particularly strong case for breaching the line about sending the public school teachers into the schools, but then once that line is breached, is it then logical that you could have science taught for the lower third in the class, math, et cetera?

What Judge Friendly was worried about was breaching a line.

Mr. Crotty: Well, the line here, Your Honor, is, unlike in paroch... excuse me... in public schools under title I, where they have area-wide schools, where enough of the population is in poverty they make the entire school title I eligible and all kinds of things happen, that's not available in the parochial schools.

Parochial schools only get a very thin slice.

They don't get science courses.

They don't get enhanced reading courses.

They get remedial courses, and it's remedial English, and remedial math, and English as a second language, and they're not taught... unlike the Grand Rapids situation or the Meek situation, they are not taught by parochial teachers being funded by public funds.

They are taught by public school teachers.

Justice Scalia: Mr. Crotty, Justice Breyer suggests that there is a line between a physical handicap and a mental handicap, which is what these children are laboring under.

Do you agree that you can draw a line between those two?

Mr. Crotty: Well, I don't agree with that at all, Your Honor, and I don't think that's a constitutionally significant--

Justice Breyer: Well, the reason would be, I suppose that the basic line is as to whether or not large numbers of public school teachers are going to be physically in the parochial school, and we have a whole list in the opinion of problems that grow out of that.

Mr. Crotty: --Well--

Justice Breyer: And now this Court's created an exception to that, and the exception, I take it, is in the situation where it's hardest for a child physically to leave the school.

Mr. Crotty: --Well, it's hard for these children to physically leave the school.

Justice Breyer: All right.

Mr. Crotty: It's terribly--

Justice Breyer: So what in your opinion, then, is the line?

Is the line that it is okay under the Establishment Clause to send large numbers of public school teachers into the parochial schools in order to teach what?

A third of the class, the lower third, any secular subject, all secular subjects?

What in your opinion, is the line?

Mr. Crotty: --Well, what I ask only, Your Honor, in reversing Aguilar is that the title I program go forward.

Within the parochial schools it's not all parochial children that receive this instruction, and even within the parochial schools that get the instruction, it's not all the children within that particular parochial school which is receiving the title I instruction.

What I'm suggesting is that when you have a narrow, well-defined program which can be monitored to make sure that the concerns that Justice Friendly had, Judge Friendly had are not really applicable... we've had 30 years' experience on the record of this case.

There hasn't been a single case, and Mr. Geller has been litigating now for 30 years on this case.

There is not a single case where he can demonstrate that a public school teacher has had his mind or her mind so overwhelmed that they began to teach secular... excuse me, sectarian topics.

So what I would say, Your Honor, is there has been a change in the jurisprudence, and there's no facts that would support the hypothesized concerns that Judge Friendly had.

Justice Stevens: What does the record tell us about the amount of monitoring that goes on in the buses to find out what the teachers do?

Mr. Crotty: The same amount of monitoring, Your Honor, goes on in the buses that would go on in the public schools.

Justice Stevens: What is that amount of monitoring?

Mr. Crotty: The... I think the teachers are visited once a month by their supervisors, and once or twice a year, depending on the teacher's tenure status under the collective bargaining rules they get an evaluative study.

Justice Stevens: They're visited in the bus, so somebody comes into the bus once a month?

Mr. Crotty: They're visited once a month in the bus, and then there's an evaluation study either once or twice a year, depending upon the union, the teacher's status.

Justice Stevens: Have there been any fact-finding hearings on what's happened during the last 30 years, because I guess this case was dismissed right on the pleadings, wasn't it?

Mr. Crotty: Well--

Justice Stevens: I mean, on the Rule for a 60(b) motion.

Mr. Crotty: --after a full record was made in a preceding case, called the Pearl I case, which was a three-judge court case, and then appeal was taken here to the Supreme Court, and it was out of time and so it was dismissed.

That record was then incorporated into the Aguilar record.

There's since been a hearing, Your Honor, on related attack to our compliance with the title I program as constituted after Aguilar as to whether that violates the Establishment Clause, so there's been two hearings on this, one in 1978, and one just recently, concluded in 1996.

There has been more than an adequate opportunity to make this case on the facts.

It hasn't been made.

Justice Souter: Mr. Crotty, we're still looking for a limiting principle.

You referred to the Zobrest situation.

You could say in Zobrest that the particular child either had to get the services in the parochial school or the child simply could not go and learn in a parochial school because there was no... there could be no communication.

So that at least is a possible limiting principle between, as Judge... Justice Breyer was saying, the concerns that Judge Friendly raised, and the claim that was being made in Zobrest, and in effect that was the only way to allow the child to have the education.

Is there any limiting principle here between what you are asking and a broader support for secular education in the schools, in the parochial schools?

Mr. Crotty: The limitations, Your Honor, are contained in the regulations.

Justice Souter: No, but that's not a constitutional limitation.

Is there any constitutional principle that this Court could look to to support the position that you are making?

Mr. Crotty: I would say that a program that is limited and made available only to those who objectively need it, without regard to their religion, would be a program that is constitutionally permitted and consistent with the Court's teaching in Zobrest.

Thank you very much.

Argument of Stanley Geller

Chief Justice Rehnquist: Thank you, Mr. Crotty.

Mr. Geller, we'll hear from you.

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

The respondents in this case have tried very hard to adhere to the facts of this case, and we have pointed out repeatedly that this case deals with not the statute... and I hear questions all about the statute.

When we brought this case first, many years ago, we brought it to challenge the New York City plan for title I in religious schools.

And I point this out to you at the outset, because something has been said about 97 percent of the aid in title I going to public schools.

That, of course, raises no question.

There is no question about using public funds for public school students.

Now, hear this fact about... and it is a fact--

Justice Scalia: Or private school students.

I suppose you have no problem with using those public funds for private school students as well, so long as they're not religiously affiliated private schools.

Mr. Geller: --Let me... yes.

I have this problem, Your Honor, and a very serious problem.

The statute may speak of nonpublic students.

Here's what happens, or happened within the title I program in New York City.

Ninety-nine point--

Chief Justice Rehnquist: Can't you answer Justice Scalia?

Mr. Geller: --Oh, I'm sorry.

Chief Justice Rehnquist: I didn't think you answered Justice Scalia's question.

Mr. Geller: I'm sorry.

Justice Scalia: You have no problem in principle with making public funds available to public schools and to private schools.

It's only those private schools that are religiously affiliated that you have an objection to, isn't that right?

Mr. Geller: Oh, right, I'm sorry, Your Honor.

Justice Scalia: Yes.

Mr. Geller: Yes.

My problem is with... constitutionally with the religious schools because of the Establishment Clause, but by way of answering your question--

Justice Scalia: You have no problem with the Free Exercise Clause.

Mr. Geller: --I have no problem--

Justice Scalia: Those parents must forego that, that subsidy, even for remedial purposes if they happen to select a private school that is a religious school.

Mr. Geller: --I don't--

Justice Scalia: You see no Free Exercise problems with it.

Mr. Geller: --I... to the extent that I see a Free Exercise problem, I see it as being seriously overcome because of the Establishment Clause problems.

I have never agreed that the Free Exercise Clause enters into this picture at all.

I do not believe that religious school... religious schools, or religious school students have a Free Exercise right to receive public funds.

I'm of the belief, and I think... and it happens all the time, that a public... a Government, Federal, State or local can provide funds for public schools and public school students without providing them for--

Justice Scalia: Mr. Geller, it's not a matter of their having a right.

It's a matter of how rigidly one is able to apply the Establishment Clause without overriding very important values that are contained in the Free Exercise Clause, and when you say to people that you must forego the entirety of the educational subsidy that the State provides in all forms if you make a religious decision to send a child to a religious school, that certainly calls into play the values that are embodied in the Free Exercise Clause.

Mr. Geller: --I--

Justice Scalia: And to adopt the absolutist view of the Establishment Clause that you're proposing simply ignores that aspect of the matter, it seems to me.

Mr. Geller: --Oh, I don't have to adopt that view, because I can see where, if you had the religious school students obtaining their remedial instruction in public schools like the public school students do, then they would be able to get that instruction.

Justice Kennedy: They'd go to public school--

--Suppose there were a showing that that alternative did not work?

Mr. Geller: That that alternative--

Justice Kennedy: Suppose there were a showing that that alternative did not work?

The students have to go there late, in which case they are not efficient at absorbing their lessons, or they have to go there during the midday, which disrupts the regular instruction, and it's very costly.

Suppose it was shown that this was simply impractical?

Mr. Geller: --That question, Your Honor, contains the assumption that it is so.

The respondents--

Justice Kennedy: Yes, of course it's an assumption.

Mr. Geller: --The respondents--

Justice Kennedy: The assumption is that it's impractical, and my question is, what if that assumption is true?

Mr. Geller: --If the assumption was true, it would bear some weight, but the fact, the actual fact is--

Justice Kennedy: So that practicality does enter into our determination of whether there's an establishment violation.

Mr. Geller: --It would, if it were factually warranted.

May I suggest that it is not factually warranted, that in the school year '86-'87 the Chancellor and the Board of Education offered a program to the religious schools in New York City whereby 80 percent... 80 percent of those schools and their students who are entitled to participate in title I could go to public schools to receive their remedial instructions that were within 10 minutes by walking or by bus to the matching public schools, and they refused that out of hand... out of hand.

Which brings up another question that I would point out to the Court.

Not only does the New York City program, as it was in effect in 1985, not only are 99.56 percent of the so-called nonstudent, nonpublic students in the program go to parochial schools, but the fact is that this is not... this is not a program that flows to the students, and I'll tell you why, because the program cannot even get to the parochial school students unless their parochial school authorities decide to enter into the program.

It doesn't begin to flow directly to the students.

And when the religious schools, the parochial schools have opted out of the program, as they did in '86-'87, then 50 percent of the students that had been in the program were no longer in the program.

The New York City... as a matter of fact, there's one other factual point that I wish to make, because it was made for me by the petitioners.

They stated that 11,000 of the 22,000 religious school students who receive this aid... that's 50 percent of them, 50 percent of the participating students, 50 percent of the entire religious school body receive title I instruction.

That's an enormous amount of instruction.

It is not the situation that has been brought up of a single deaf-mute student in Zobrest who has the benefit of a sign language interpreter.

How does that affect the... impose on the religious school?

It doesn't affect them at all.

But when you have a huge body of religious school students in a program like New York City receiving this aid, then it is no longer the attenuated aid that is readily distinguishable in Zobrest.

I did want to cover a point that Justice O'Connor--

Justice Scalia: I assume that the State can provide buses to these parochial school students, right?

Mr. Geller: --They can provide--

Justice Scalia: Public services such as fire, fire protection and so forth?

Mr. Geller: --Yes, Your Honor.

Justice Kennedy: And is that true even if that advances the mission of the parochial school?

Mr. Geller: I don't see how it advances the mission.

Justice Kennedy: You don't think busing students to go to the school advances the mission of the school?

Mr. Geller: It does not.

Justice Kennedy: All right.

Mr. Geller: I don't see how that does at all, and as a matter of fact, we point out in our brief that when in Everson v. Board of Education that was permitted, the Court noted that this was the very verge of the aid, if it could be called aid, that would go to a public school, religious schools or religious school students.

Justice Scalia: How about books?

Can you provide books to parochial school students?

You can do that too, can't you?

Mr. Geller: They... they--

Justice Scalia: And that doesn't help the mission either, does it?

Mr. Geller: --They can do that under Allen, yes.

I can't go back on Allen any more than I think the Court can--

Justice Scalia: Can on Zobrest, right.

Mr. Geller: --What?

Justice Scalia: No more than you can on Zobrest.

Mr. Geller: I don't go back on--

Justice Scalia: I mean, it seems to me that there's not--

Mr. Geller: --I don't go back on Zobrest.

Justice Scalia: --It seems to me there's not this clear line you're trying to draw between any assistance that the Federal Government provides to the accomplishment of the mission of parochial schools.

It seems to me the line we've tried to draw is between assisting them in the accomplishment of their distinctively religious mission.

You just simply cannot maintain the point that the State cannot or the Federal Government cannot at all assist the parochial schools in the accomplishment of their purely sectarian... or secular educational mission.

Mr. Geller: The line that respondents draw, Your Honor, is as far as I'm concerned as clear as clear can be.

I can't go back on Allen, although I never agreed with it, yes.

You can lend books to religious schools and religious school students.

But the distinction was made in Lemon by then Chief Justice Burger, who said, teachers are different from books, and our line is, don't send teachers in.

You can't change what books do because--

Justice Scalia: Why are teachers different from books?

Mr. Geller: --Because teachers are uncontrollable, and I point this out--

[Laughter]

Yes.

Yes, and... uncontrollable and sometimes very unprofessional.

I hear arguments made that we should rely on the professionality--

Justice O'Connor: That's an argument... Mr. Geller, you can't seriously expect this Court to accept that argument, that teachers are unprofessional and uncontrollable.

I mean, that just flies in the face of experience and reality.

I think we have to assume that a public school teacher who is employed by the State and is told not to inculcate religion when teaching remedial reading will follow that instruction.

I think that assumption is a fair one for us to make.

Mr. Geller: --When I said teachers are uncontrollable, I may have used a strong word, but not much stronger than Chief Justice Burger did in Lemon, and when he pointed out that books are controllable because once they're printed and they contain nothing that offends the Establishment Clause, that's the end of it.

Justice O'Connor: Well, we had... New York had 19 years of title I education programs without a single identifiable incident of a public school teacher inculcating religion, and it worked fine, until this Court got the notion that that program somehow failed the Establishment Clause test.

Mr. Geller: Those many years of nonreported violations are very easily explained, and Justice Breyer asked questions about... to Mr. Crotty about Judge Friendly's opinion on that point, and I believe that's the... that speaks much better than I could ever speak.

The reason that there are no reported violations is because the only people that could report a violation would be the violators themselves.

What system of surveillance can prevail in a small classroom, whether it's inside a religious school or in a bus?

What system will disclose violations of the Establishment Clause or conduct on the part of a teacher that is--

Justice Kennedy: What is there in our civic tradition that says that surveillance is necessary to ensure that citizens obey the law?

Mr. Geller: --I didn't--

Justice Kennedy: What is there in our civic tradition that says surveillance is necessary to ensure that citizens obey the law?

Mr. Geller: --In this particular case, I would assume it's necessary.

This isn't merely Aguilar.

This goes back to Lemon v. Kurtzman, Marburger, Meek... it was felt by this Court--

Justice Scalia: Is it any easier to bug the buses than it is to bug the classrooms?

[Laughter]

Mr. Geller: --Is it any easier to bug the buses--

Justice Scalia: To bug the buses than it is to bug the classrooms?

Mr. Geller: --Well--

Justice Scalia: I mean, if you have this problem about teachers inculcating religious values, why couldn't it happen on the bus?

Mr. Geller: --That's--

Justice Scalia: I mean, somehow the teacher magically, when she walks into the public... into the parochial school classroom is transformed from an impartial employee of the State, without any secular interest in mind, to somebody who's going to teach religion.

Why does that happen when she goes from the bus to the classroom?

Mr. Geller: --My answer to that has to be, Your Honor, one case at a time.

We are opposing the buses as mere adjuncts of the religious schools in a case now before the Second Circuit, and as a matter of fact--

Justice Scalia: The buses are not even any good.

Mr. Geller: --If you want an honest answer from these respondents, yes, the buses are a violation, because we see little difference between the buses right outside the door of the religious school and a title I classroom inside the door.

The students tramp out the door, they go into class a few steps away, and then they go back, all fitted within the religious school schedule, but as I say, that's another case.

But what we're saying is simply that the mandate of this Court in several precedents was yes, when you have public school teachers inside a parochial school, then you have to take some steps to see that they don't offend the Establishment Clause, and as a matter of fact, this isn't original with us.

The Board of Education in Aguilar in the original case vaunted the system of surveillance that they had.

Of course, it was a paper system that didn't work, because you cannot send an inspector into a classroom of one teacher and 10 students and expect the teacher not to be aware that he's being inspected for all kinds of things.

Justice Breyer: Before you finish, could you spend a couple of minutes addressing the 60(b) question?

That is, the Solicitor General said, and he certainly seems to me to have a point, he says there must be a way procedurally to bring people outside an injunction that requires them to spend $10 million a year if the law has undergone a sea change, or is about to.

They should have some method of testing it out.

And he then said there is no other way that the Secretary of Education can't just give money to this, and I don't know, I think of declaratory judgment suits.

I think of the Secretary possibly saying, I would give you money if.

I think of some school board who wanted to do it, but is it right that there is no other way to test out this issue than the 60(b) motion here, in your opinion?

If not, what is the other way?

Mr. Geller: My answer to that, Justice Breyer, is twofold.

First of all, I do not agree that there is no other way.

I think that there are cases coming up now in which this Court could address the merits of the determination in Aguilar.

Justice Kennedy: Mr. Geller--

--But it's an odd calculus, isn't it, Mr. Crotty, that only the person who's most... Mr. Geller, excuse me.

It's an odd calculus, isn't it, that only the party most affected cannot get relief?

Mr. Geller: That is odd, but I was going to answer Justice Breyer by saying, Justice Kennedy, that that is the precise situation in which many, many parties before this Court have found themselves, and they have had to wait, some of them many, many years, to have a case come before this Court... very few cases... in which the determination in their case is overruled.

That--

Justice Ginsburg: Mr. Geller, on the question of cases... you mentioned there were cases.

I am aware of only two.

You are au courant in this field.

Other than the case in Louisiana, and the one in Minnesota, both in district courts, is there any other case?

Mr. Geller: --Yes, the case that respondents have now... it's suspended pending this case... in the Second Circuit Court, in which we are challenging the present, what we call the alternative plan in New York City which relies largely on busing.

We are challenging that, and we are challenging it on the theory that it is no different from the situation in Aguilar in substance.

If we prevail in that case, that case could come to--

Chief Justice Rehnquist: Have your opponents in that case urged that Aguilar be overruled?

Mr. Geller: --Oh, the opponents take precisely the same position that they're... that the petitioners are taking in this case, yes, that Aguilar is no longer the law, and we--

Justice Scalia: Would the district court be able to grant them that wish that Aguilar no longer be the law?

Mr. Geller: --The district court already--

Justice Scalia: No, I mean in that case could the district court pronounce Aguilar to be dead?

Mr. Geller: --The district court distinguished the buses from the--

Justice Scalia: Yes, but assume it couldn't distinguish.

I mean, do you think that district court... I mean, one of the arguments here is that look, this district court under 60(b) has no authority to say Aguilar is dead.

Can you conceive of any case in which a district court would have the authority to pronounce Aguilar dead?

Mr. Geller: --Depending on the facts of the case that are developed.

Justice Ginsburg: I don't understand that answer.

I though this Court had said that's not the job of lower courts.

It's for the Supreme Court to overrule its own precedents.

Mr. Geller: Well, it's not the job of lower courts, but what has happened in the case... the Walker case in California is, that went past the court of appeals out there, was that the court of appeals... that was a Chapter II case, a title II case on books and equipment rather than a title I case, but there the court of appeals did hold on the basis of the change in the law that the petitioners here argue--

Justice Scalia: Well, it shouldn't, Mr. Geller.

We have said very clearly that we overrule our own cases.

It's... and if that is so, then no matter how it comes up, if Aguilar is ever going to be overruled, we are going to have to say that a district court was wrong for doing the right thing.

Mr. Geller: --Yes.

Justice Scalia: That is, it was wrong in obeying our instructions that it should follow Aguilar.

No matter how it comes up, we're going to have to say that--

Mr. Geller: I never--

Justice Scalia: --the court that did the right thing was wrong, aren't we?

Mr. Geller: --All right, Justice Scalia... I never got to the second point of my answer to Justice Breyer, and that is, it was suggested by Justice Ginsburg.

If it cannot be done under present rules, you don't break these rules.

You don't bend them.

Instead, you promulgate a new rule.

And as Justice Ginsburg suggested, if there's such a hardship problem in this type of case, then the Court should recommend a rule to Congress, and Congress should promulgate it as part of the Federal Rules of Civil Procedure that you can have a rehearing out of date.

Justice Souter: Mr. Geller, even assuming that were not done, I have assumed that there would be no difficulty for any school district, for example, to protest the Secretary's position and litigate that.

There's... it seems to me that there are myriad cases that could come up here by which Aguilar could be reexamined without implicating the 60(b) problem if anybody wanted to take the trouble to bring it up.

Am I missing something?

Mr. Geller: Oh, well, that was the third part of my answer to Justice Breyer's question.

The citizens of this great country have devised a myriad of ways to develop cases in order to test prior determinations of this Court.

I do not... I think it's just a fiction that there cannot be a case developed within a State, within a locality, where the principle cannot be tested that public school teachers or guidance counselors cannot go into--

Chief Justice Rehnquist: Well, Mr. Geller, you're not suggesting that this Court has never granted a rehearing out of time, are you?

Mr. Geller: --I thought it never had.

Justice Ginsburg: Have you... are you familiar with the Gondack case?

Mr. Geller: I must not be, because I thought that... I thought that this case was unprecedented.

Justice Scalia: How could you not be familiar with the Gondack case?

[Laughter]

Mr. Geller: I am not... I said that... yes, I must admit.

I think we all are--

Justice Ginsburg: Mr. Geller, I believe that was a question--

Chief Justice Rehnquist: --I think he's answering my question, Justice Ginsburg.

Mr. Geller: --Yes, I did answer that.

Chief Justice Rehnquist: Gondack may have been an error on our part, but there was a case 20, 25 years ago where we did grant a rehearing out of time.

Mr. Geller: Out of time, and before a bench that was so different from the bench that sat on Aguilar, with not even... not even a single Justice here that indicates that he would change his vote?

Justice Ginsburg: Well, this was perhaps 2 years out of time, not as far out as... now it's very much out of time by our rule.

Was it a question... I don't recall... of action on a cert petition rather than a decision on the merits?

I may... I don't know... I don't recall that Gondack was a decision on the merits as this was, with a sharply divided Court.

I thought that that was a case involving a denial of a petition for review, and then a rehearing on that denial.

Mr. Geller: Well, having had to admit that I'm not familiar with Gondack--

[Laughter]

--I accept your--

[Laughter]

Justice Scalia: Mr. Geller, can you give me... I mean, it's fine that you say some other district may be able to raise this issue.

That's not very comforting to New York, that's spending $10 million a year.

Is there any way that you think that this particular entity, that New York City, which is under, now, an injunction that it thinks does not comport with what this Court has said the Constitution requires, is there any way that New York could raise it, other than 60(b)?

Mr. Geller: I do not see it at this late date.

One of the... and this would be an answer to something that Justice O'Connor suggested.

This is an ongoing injunction, but... and--

Justice Scalia: We're not imaginative enough to find some way to provide relief to somebody who is laboring under an injunction that is assumedly unconstitutional?

Mr. Geller: --That I obtained?

Justice Scalia: That you obtained, but assume, just posit--

[Laughter]

Just posit for present purposes... and the 60(b) issue assumes that.

Assume that the law has changed, that Zobrest now makes it clear that the injunction was wrongly granted.

Mr. Geller: Yes... yes--

Justice Scalia: Is there no way that we can give relief to New York, or to just tell them, well, wait for somebody else to bring a lawsuit, maybe you'll get lucky?

Mr. Geller: --I was about to answer Justice O'Connor's suggestion, and it will answer yours.

Sure there was a way.

If... if the law had really changed here, and there was a change either in the law or the factual circumstances, yes, under rules of equity you might modify an injunction, perhaps even an injunction that's a mandate on a constitutional point.

But look what happened here.

For 12 years after this injunction issued, the Board of Education was faced with the same cost and the same inefficiency, and they did nothing about it until Kiryas Joel and the comments that were made in Kiryas Joel about Aguilar, which don't have the binding effect of law.

But if the law had really changed, and if the factual circumstances had changed, yes, under rules of equity that rule 60(b) subsumes these parties could have... the petitioners could have brought a case, but they didn't do that, and the law didn't change.

As a matter of fact, we have pointed out that the very comments in Kiryas Joel showed very clearly that the law hadn't changed, and the comments were that Aguilar perhaps should be overruled in a proper case, and we say this is not a proper case.

Justice Souter: If we took the position that Zobrest had in fact undermined Aguilar to the point that there was nothing left of it, that it had in fact overruled it, even though we did not say that in express terms, then I suppose it would be proper for us to employ or to sanction the employment of Rule 60(b) to grant the relief that they want.

Do you agree?

Mr. Geller: Yes.

Yes, if you had done that, if the Court had done it in Zobrest, but I have to emphasize how much respondents believe that Zobrest is distinguishable from Aguilar and Grand Rapids and Meek, and the extent of the aid that goes... that flows to the public school.

Of course, it ultimately flows--

Justice O'Connor: And yet the type of aid that's given actually enables the sign language interpreter to inculcate religion, if that's what's being taught.

In a sense, it goes beyond what the parties are asking for here, doesn't it?

Mr. Geller: --In a way it does, yes, Your Honor, but with a single student.

Look at the difference.

In this case, as has been pointed out, 50 percent of the students, 11,000 out of 22,000, are being given aid, and what is the--

Justice Scalia: Zobrest applies to only one individual?

He has this special privilege?

There's nobody else in the country that can get the same kind of remedial assistance?

Mr. Geller: --But it would still be much more attenuated than the aid... that's the word that this Court--

Justice Scalia: Don't say one individual.

We adopted a principle that would apply to a lot of people.

Mr. Geller: --Well, the question, Your Honor, is, did you apply... did you adopt a principle that overrules the cases in which the Court has held that... it's sometimes called massive aid, or funding of religious schools, is unconstitutional as in Grand Rapids, as in Meek v. Pittenger?

I don't think so, and the word that was used in the Court's opinion in Zobrest was that the aid that was given to that student was only attenuated aid.

Chief Justice Rehnquist: Thank you, Mr. Geller.

I think you've answered the question.

Mr. Geller: Thank you.

Rebuttal of Walter E. Dellinger, III

Chief Justice Rehnquist: General Dellinger, you have less than a minute left.

Mr. Dellinger: The line that this Court has itself drawn in Ball and in Zobrest is that a State may not in effect subsidize the religious functions of the parochial schools by taking over a substantial portion of their responsibility for teaching secular subjects.

Justice Breyer, Justice Friendly was concerned about cases like Lemon and Grand Rapids.

Here, there's no realistic danger of advancing religion.

That was entangled as a solution in search of a problem.

Justice O'Connor, your decision in Cooter in 1990 deals with abuse of discretion.

Thank you.

Chief Justice Rehnquist: Thank you, General Dellinger.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Board of Educ.Kiryas Joel Village School v. Grumet - Oral Argument

Fri, 09 Jan 2009 14:49:53 +0000

Case:

Board of Educ.Kiryas Joel Village School v. Grumet

Media File:

93-517_19940330-argument.mp3

Related Transcript:

1993_93_517_argument.xml

Transcript:

Argument of Nathan Lewin

Chief Justice Rehnquist: We'll hear argument now in Number 93-517, the Board of Education of Kiryas Joel Village School District v. Louis Grumet, and two cases consolidated with it for argument.

Mr. Lewin.

Mr. Lewin: Mr. Chief Justice and may it please the Court:

The statute that is being challenged in this case as inconsistent on its face with the Establishment Clause of the First Amendment involves no governmental participation in the teaching and propagation of religious doctrine and underwrites no public employee to participate directly in religious indoctrination.

These were factors that were present in the Government program that the Court sustained last term in the Zobrest case, and they led Justices Blackmun and Souter to dissent in that case.

By contrast, the New York legislature has authorized the residents of a legally incorporated village that has existed since 1977 that elects a mayor and a village board and enacts ordinances that comprise the code of the Village of Kiryas Joel to operate a wholly secular public school.

Unknown Speaker: Mr. Lewin, may I inquire, this is a special act of the legislature just directed to form this one school district?

Mr. Lewin: It is an independent... yes, Justice--

Unknown Speaker: Were the laws of the State of New York not such that other people similarly situated could form their own special school district?

Why did a special law have to be enacted here?

Mr. Lewin: --The legislature in New York has... does enact laws that creates school districts and bounds of school districts.

That's referred to specifically in the complaint in this case.

That's the way the--

Unknown Speaker: Is every school district in the State of New York formed by a special act of the legislature?

Mr. Lewin: --It's formed by acts of the legislature.

Unknown Speaker: Rather than by a general provision that allows residents of areas to form their own district.

Mr. Lewin: My understanding is that that's correct.

The enactment of the boundaries of school districts is done by legislative enactment.

Unknown Speaker: It's always done that way--

Mr. Lewin: Yes.

Unknown Speaker: --not by some general law--

Mr. Lewin: Not by some general law.

Unknown Speaker: --that would allow similar groups to form districts.

Mr. Lewin: Correct.

Unknown Speaker: Is it fair to say that governmental power was transferred here to a geographic entity based on the religious beliefs and practices of its residents?

Mr. Lewin: I think, Justice Kennedy, that that's not a fair characterization.

It was transferred to the residents of a village.

Those residents are indeed all of a particular religious denomination, and very devoutly so, but the... it was not that the statute in any way itself drew lines that distinguished on the basis of religion.

Unknown Speaker: If my characterization that I used in the question were deemed the appropriate characterization, would you lose the case?

Mr. Lewin: Well, I don't think so, not even under those circumstances, although that's not this case, Justice Kennedy, because I think that if in fact, as a matter of legislative accommodation, a group of individuals residing in a particular geographic area would warrant having a separate public school for secular reasons, which is what happened in this case, it would be permissible to accommodate to them, and... or even to accommodate to their religious practice.

Our view is that accommodation by the legislature to the needs of a religious community is permissible.

My example would be, for example, this book covers garbage disposal within the Village of Kiryas Joel.

There's a code that talks about trash disposal.

If a community, for example, said, we will not accept trash disposal on the Sabbath, on Saturday... we think it's inappropriate for religious reasons... if the legislature then said, all right, for that reason we'll allow you to conduct your own trash disposal on some other day of the week, and you do it yourself, we think that's within the spirit of what the free exercise laws--

Unknown Speaker: Well, Mr. Lewin, if... if such a law were to neutrally extend to everybody in New York, so that anybody similarly situated could dispose of their own trash, I think you have a very good argument.

I have a little trouble seeing why the same analysis applies when the law that you're examining is not neutral.

It's just limited to this one situation.

It isn't a broadly based law that says people living in a village can have their own school district, whoever they are, whether they're this group or some other group, and yet it seems that New York has chosen to do this quite separately, so I hope you will address that aspect.

One other question, preliminarily.

I guess we wouldn't be here today but for this Court's decision in Aguilar.

Mr. Lewin: --That's correct, Justice O'Connor.

It's this Court's decision in Aguilar that precipitated the situation that required some action to be taken regarding the disabled children of Kiryas Joel.

Unknown Speaker: If Aguilar--

--And had we held--

--Excuse me.

--otherwise, then the services would be provided with the Federal aid on the premises of the religious schools.

And if that were happening, would the mechanism of the accommodation that is in question here have been permissible?

Mr. Lewin: I think, Justice Kennedy, it would have been permissible.

Indeed, it appears from the position of the Monroe-Woodbury School District that from the vantage point of the overall school district, this is a preferable accommodation.

The Monroe-Woodbury School District did not want to provide teaching at a neutral site in Kiryas Joel.

They--

Unknown Speaker: No, no, no, my question, following Justice O'Connor's, was, had Aguilar v. Felton come out the other way--

Mr. Lewin: --Yes.

Unknown Speaker: --And these services had been provided in the private schools themselves, would you then nevertheless have had the constitutional option to have the district formed as it was here?

Mr. Lewin: No.

If... we agree that if, in fact, the services were being provided under the pre-Aguilar procedure, there would not have been any justification for the legislature saying we have to accommodate or we have to take this step.

Under those circumstances, there would be much more basis to argue that this is only being done to provide some kind of authority to these citizens who happen to be religious.

Unknown Speaker: Well, Mr. Lewin, may I ask you a question of fact there?

You have spoken several times of the fact that they happen to be religious.

Is it part of the record in this case that the village district upon which the school district was superimposed was... was defined geographically by reference to the religious affiliation of the people in it, so that non-Satmar Hasidim were excluded, and those within the village all fell within the category of the Satmar sect?

Mr. Lewin: Justice Souter, I think the record really establishes the contrary.

The record establishes that what happened in this case... and it appears in the very first pages of the Joint Appendix... that what happened in this case was that the original village that was proposed... and that's at page 12 of the Joint Appendix... the Satmars presented a petition to form a new village of very large dimensions which included many properties and people not of the Satmar belief, so that consequently the original petition was not in any way limited by where Satmar Hasidim happened to live.

What happened, the real basis for the creation of the village was a zoning dispute.

Since Satmar Hasidim have large families... indeed, I think the record shows there's over 60 percent of the population is under 17 years of age, they needed homes which would accommodate larger families, and that precipitated, as I say, a zoning dispute.

The consequence ultimately was, as page 13 of the Joint Appendix shows, that a new village on a much smaller scale than originally proposed was presented only because the people who were to be included in the larger area said they did not want to be in this village, so that the--

Unknown Speaker: Well, that maybe unconstitutional too, Mr. Lewin, I guess.

If people for religious reasons have larger families we can't have special communities with special zoning rules for them, either.

Mr. Lewin: --Well, Justice Scalia, of course, our view is that the accommodation authority that legislatures have and that this Court has recognized... indeed, even as strong a proponent of the Establishment Clause as Justice Brennan in his Texas Monthly case in footnote 8 specifically referred to the fact that the authority to accommodate is far broader than the mere confines of the Free Exercise Clause.

Unknown Speaker: But the argument being made is that if they had large families for some other reason, not a religious reason, you could... you could establish a special community with different zoning laws for that group, but if they have large families for religious reasons, just as this community has certain customs that make it difficult for them to go to another community for their schooling for religious reasons, then it's bad.

Mr. Lewin: Well, our view, of course, is that that--

Unknown Speaker: It seems to me that's the argument being made.

Mr. Lewin: --That turns the First Amendment on its head.

That essentially means that the free exercise of religion, which is protected by the Constitution, becomes the one impermissible vice that invalidates anything that's done, and we think--

Unknown Speaker: But leaving that argument aside, I take it that the upshot of the creation... of the forces that led to the creation of the village was that in fact the village was defined by adherence to this sect.

Whether the precipitant for that was concern over zoning, that was the result, I take it.

Mr. Lewin: --The consequence was... yes, Justice Souter, that they are... all the residents of the village are Satmar Hasidim, but the point that I'm trying to make--

Unknown Speaker: Mr. Lewin, am I right that there's no dispute in this record that compliance with the New York law in establishing villages isn't at issue.

It's rather easy to form a village, and although this opinion that you cited allows the village rather grudgingly makes the point that whatever this group was, that they met all the requirements of New York State law to form a separate village, so that's--

Mr. Lewin: --There's no dispute, Justice Ginsburg, and I think the petitioners have never challenged the existence of the village.

They've--

Unknown Speaker: --Your case I think would be considerably harder if you didn't have the school district that coincided with the preexisting village boundaries.

Mr. Lewin: --We acknowledge that.

It would be more difficult.

The question then would be squarely presented whether, in order to accommodate a religious group living within an area which had not previously defined, it would be permissible for the legislature to draw lines to accommodate that religious group, but that's not this case.

Unknown Speaker: Well, you'd say that would be okay, too.

Mr. Lewin: Well, again, with the caveat that that is not by any means this case--

Unknown Speaker: I understand.

Mr. Lewin: --We believe that that is part of the spirit of accommodation, that if in fact--

Unknown Speaker: But it would not be all right if, say, a religious body... say, the board of the synagogue... had been appointed the board members of the school board.

That would--

Mr. Lewin: --Absolutely not.

We agree with that, Justice Ginsburg.

It would be impermissible, and here the important point is that this property of the village is privately owned by its residents.

They have chosen to purchase the property and to live together, and anybody... anybody in this room, anybody in New York State, is permitted, and indeed, under New York law, may not be discriminated against if they choose to seek to purchase property in that village.

Unknown Speaker: --Mr. Lewin, will you clear up one factual situation that I'm confused about?

Were all of the students here residents of this school district?

Mr. Lewin: All... no, Justice Blackmun.

Currently... again, initially when the school district was created, it was created with the intention of serving the students in Kiryas Joel, the children of Kiryas Joel.

Once it was created, since it provides a bilingual and bicultural program, there are other students who have... who are disabled from other neighboring communities who have been permitted, under procedures which, Justice O'Connor, in line with your question as to whether this is universal, with procedures which are universal with regard to other school districts and other circumstances have been permitted to attend this public school which neighbors or adjoins their own home districts.

Unknown Speaker: Roughly how many of them are there, percentagewise?

Mr. Lewin: I think the percentage runs maybe 10 to 20 percent or so.

I don't think it's higher than that.

It is a very--

Unknown Speaker: May I--

Mr. Lewin: --It is a relatively small number, but there are a number of them that--

Unknown Speaker: --May I ask one other factual question?

Mr. Lewin: --Yes, Justice.

Unknown Speaker: Are the children separated by sex, or are they all... boys and girls take training together?

Mr. Lewin: In this school, Justice Stevens, boys and girls go to class together.

Unknown Speaker: That puzzles me, because is that consistent with the religious doctrine?

Mr. Lewin: It is consistent with the religious doctrine, because the views of the Satmar Hasidim and of their religious authorities is that when the purpose of education is this kind of remedial education, which is to... it is permissible to have boys and girls study together, and so that that has been approved by... or has long been the practice within the religious community.

Unknown Speaker: Was that also true during the pre-Aguilar special education program?

Mr. Lewin: My understanding is yes, it was always true.

Unknown Speaker: Thank you.

Is this place geographically located up around Rochester?

Mr. Lewin: It's near Harriman... Monroe, is it near Rochester... it's further south, I'm sorry.

Unknown Speaker: So it's not Monroe County, then.

It's on the Hudson.

Mr. Lewin: I'm sorry, I... Orange County.

It's in Orange County.

I'm sorry.

The points that we wish to emphasize with regard to this statute is that it is a legislative determination.

Justice O'Connor asked whether this applied uniformly.

As we have indicated, accommodations, we believe, can be applied, and always are applied, indeed, to particular situations.

This Court said in its Employment Division v. Smith case, for example, that if there were a legislative exemption for the smoking of peyote, that would be permissible.

Now, that by its very nature applies only to one religious group, because... for its religious practice, and consequently we--

Unknown Speaker: How about the Sabbatarian case?

Mr. Lewin: --The Sabbatarian--

Unknown Speaker: Well, that was struck down, wasn't it--

Mr. Lewin: --Well, that was--

Unknown Speaker: --because it didn't apply neutrally to people with other needs for a day off.

Mr. Lewin: --With all respect, Justice O'Connor, I think the Sabbatarian case was one in which this Court felt that there was a burden on others to pick up for the Sabbatarian, and in that footnote in which Justice Brennan in his Texas Monthly case speaks of accommodations, he refers to the fact that that's a distinction, whether the nonobservers are burdened by the statute.

In this case, there's no burden on anyone else.

This is simply a statute which applies to this municipality and essentially what the courts below have said is that these people, because they are religious, cannot be trusted to run a public school system.

Unknown Speaker: Mr. Lewin, I took you a moment ago in your answer to Justice Kennedy's question about the significance of Aguilar to accept the proposition that in judging what is a permissible, permissive accommodation, that the range of possible alternatives for the accommodation should be considered.

Is that... do you think that's a... basically a fair premise?

Mr. Lewin: Well, the need for accommodation, I don't think the range of accommodations.

In other words, this is not an area... and I know that there is one judge in the court below, Judge Kaye--

Unknown Speaker: Yes.

I was getting at that, yes.

Mr. Lewin: --Judge Kaye, who said, look, this... the least restrictive alternatives standard should apply.

We think that's wrong.

When the legislature--

Unknown Speaker: Well, I think I would agree with you there, but you can reject the least alternative theory and still accept the view that alternatives should be considered in deciding just how far the accommodation can legitimately go.

Mr. Lewin: --I think that's true, and I think it's particularly important in deciding whether there should be any accommodation at all, and under Justice Kennedy's hypothetical, it appeared to me there's no need for any accommodation because this very same service is being performed neutrally by the regular procedures in a way that is perfectly consistent with the religious observance.

I'd like to reserve--

Unknown Speaker: Mr. Lewin, I have one question about one of your copetitioners.

There was a reference by the Monroe-Woodbury School Board in their brief that compared the alleged restraint on sale and rental of property to people outside the Satmar community to a church tithe that the individual is free to pay or not to pay, and I found that disturbing, because as I understand it, there is no choice.

The State law and the Federal law requires that sale and rental be on a nondiscriminatory basis.

The Satmar does not have a choice to refuse to sell to an outsider.

Is that your understanding?

Mr. Lewin: --We agree with that entirely, Justice Ginsburg.

They have no choice, and if anybody comes in and wants to live in that community and purchase a home, they're entitled to do so.

I'd like to reserve the rest of my time for rebuttal.

Unknown Speaker: Very well, Mr. Lewin.

Ms. Mereson.

Argument of Julie S. Mereson

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

Do I need to lower the microphone?

Unknown Speaker: It might help.

Mr. Mereson: Okay.

The issue here is whether the State's action was one that tolerated religious and lifestyle differences, or whether it advanced, promoted, or furthered the Satmar sect itself.

The former is commanded by the Constitution, but the latter is prohibited.

Unknown Speaker: Do you see a difference between the two?

I mean, is that a usable test?

By tolerating it and facilitating it, you advance it.

I mean, do we have to pretend that there's a difference between the two?

Mr. Mereson: I believe there's a great difference between the two.

Unknown Speaker: There is?

Mr. Mereson: In fact, there's a red line between the two that sometimes is hard to discern, perhaps, but on the one hand you have an ability to tolerate and to acknowledge something that preexists the legislation or State act, and then on the other side, you have things that actually encourage religious practice or make it particularly advantageous to practice a religion... for instance, the prayer in the schools.

Tolerance is a recognition of differences and an alleviation of a burden.

On the other side of the Establishment Clause, the free exercise right, the tolerance is an accommodation.

It's a means of making somebody's religious life not disadvantageous.

Unknown Speaker: Well, do you think that the State's accommodation needs to be neutrally applied, if possible, so that all people similarly situated have the same option, or can the State single out one sect or one religious group and provide some benefit there, but not make it generally applicable?

Is there a difference, in a neutrally applied scheme open to all?

Mr. Mereson: The neutrality here is not in the sense of applying to all.

There is neutrality here, and yes, the State needs to be neutral, but the neutrality exists in the context of the particular problem.

When you're dealing--

Unknown Speaker: Well, how is this neutral, if the legislature set up just a special school district for this one situation, instead of passing a law to the effect that groups of people or villages or towns can form their own school district by applying neutral criteria?

Mr. Mereson: --Because here the legislature was reacting to a particular local problem.

There was a local problem that did not need a general statute for other groups in the State.

The problem here--

Unknown Speaker: Isn't it a dangerous precedent to let the legislature tackle a so-called accommodation by singling something out like this, as opposed to passing a neutrally applicable law?

Mr. Mereson: --There's no need for a broader law, and no, I don't think that it's dangerous for the reason that when you need accommodation sometimes you have a specific problem.

The burden that were on... that were on the Hasidic parents and children of this community is not a burden that was shared by the rest of the State or the rest of the country.

Unknown Speaker: Ms. Mereson, doesn't the legislature always single out a school district?

Doesn't it create... I thought from Mr. Lewin's description that it always creates school districts single case by single case.

Mr. Mereson: When there needs to be new lines drawn other than the historically existing school districts, yes.

Unknown Speaker: On the basis of any general criteria, or on the basis of whether a particular group seems to be a community?

I assume that's how they do it, isn't it?

Mr. Mereson: Well, normally these special lines that are drawn by the legislature are called special acts school districts, and they are coterminous with institutions, so they would be created in response to a need for them, which is what happened here.

There was a need for this, because what the State was faced with was an impasse between the parents of handicapped students living in the village and their school district, which is Monroe-Woodbury, over whether these special needs--

Unknown Speaker: Ms. Mereson, does the need carry the State as far as the State went, because even assuming that it's appropriate for the State to deal with these problems on a case-by-case basis, the State could have done so here, I presume, by a statute simply mandating that some kind of a special school in a neutral place be set up by the existing school district to accommodate these particular children, and by doing that it would not have involved the... in effect the identification of the governance of the school district with a particular religious sect.

The State could have done the former, couldn't it?

Mr. Mereson: --I don't think... they could have done the former.

They could have done anything.

The problem with the former is that there would be more of an argument to be made that in this impasse, in this dispute between the Monroe-Woodbury School District and the Kiryas Joel parents, that they would be taking sides more by taking the discretion that Monroe-Woodbury enjoys along with the rest of the school districts of the State of New York in terms of where they choose to apply--

Unknown Speaker: Well, there might have been... there might have been an argument that they were taking... I don't... I'm not sure that I think the argument is any stronger than the argument that they're taking sides here, but leaving that aside, there may have been that argument but there wouldn't have been an Establishment Clause issue, would there?

Mr. Mereson: --I think there would have been?

Unknown Speaker: Why?

Mr. Mereson: In fact, you can make the exact same arguments that they're making here.

Unknown Speaker: Wasn't that Judge Kaye's position in the New York Court of Appeals, though?

Isn't... didn't she say you could have the same facility, only it would be under the aegis of the Monroe-Woodbury School Board and not the Kiryas Joel Village School Board, and that would be all right?

Wasn't that essentially her position?

Mr. Mereson: That was her position, but we disagree with her position, because if the New York State legislature and Governor enacted a law that said to Monroe-Woodbury you must relinquish your discretion and you must provide a neutral site against your judgment, against your wishes, to these religious people in this religious community, there would be people back in court saying, you have favored the Satmar sect, you have... you are advancing their religion by--

Unknown Speaker: Well, they would have, but you would have had a much easier case, wouldn't you?

Mr. Mereson: --Well, I actually believe we would have had a harder case.

Unknown Speaker: Well, but they would not have been able to say that the solution to the accommodation that you adopted was the transfer of power, governmental power, based on the religious beliefs and practices of the recipients.

Mr. Mereson: We believe you still can't say that, because the transfer of the power was not to any religious organization, it was to the residents of a community.

Unknown Speaker: Well, is that a question of fact?

Mr. Mereson: Yes.

That is in the record.

The power was given by the statute to the residents of the community, and not to any religious organization.

Unknown Speaker: Yes, but I had thought that it was the whole basis of both sides in this case that the conceded fact that the rationale for the drawing of the geographic lines of this district was the religious beliefs and practices of its residents, pure and simple.

Mr. Mereson: There's one factor in between, which is that this is a cultural and sociological problem which arose out of these people's religion, so it's one step removed from the religion.

What the State did was to address the cultural, secular, sociological side of the problem without preferring or promoting or advancing the actual religious tenets.

Unknown Speaker: Would you explain that a little more?

You started to answer a question earlier, what the need was that the State was accommodating.

Would you state again exactly what the need for this legislation was?

Mr. Mereson: Certainly.

There was a deadlock.

It was an absolute deadlock between the parents of disabled, handicapped children who need specially appropriate educational services--

Unknown Speaker: Which were being provided.

Mr. Mereson: --Which were not being provided... the parents felt--

Unknown Speaker: Which were available.

Let me say, which were available.

Mr. Mereson: --They were not appropriate according to these parents.

They felt that these services were not being provided by Monroe-Woodbury, because the services that they were offering was not appropriate to these children's unique and special needs.

They did not address--

Unknown Speaker: In what respect were the services inappropriate?

I don't understand that.

Mr. Mereson: --They felt that they were not addressing their unique vulnerabilities and needs because they come from a very insular environment, where they don't have television, they don't have radio, they don't have English language newspapers, they don't watch a cartoon, and when they go to the Monroe-Woodbury Schools with children who dress differently, who speak differently, these... the Kiryas Joel children don't particularly speak English.

Their first language is Yiddish.

This environment was so alien to them that they felt that it had a very negative effect.

The emotional and psychological trauma that they suffered had a very negative effect on their educational process, so much so that they felt that that overpowered their need to be in school.

Unknown Speaker: The "they" you're referring to is the parents or the children.

Mr. Mereson: The parents of these children, and they took them out of the school, so when this came to the State... this did not come to the State in the first instance.

This problem was with the parties for a while.

It went through the entire appellate court process, and at the top of the process--

Unknown Speaker: But the critical fact is, they didn't want these children exposed to these out-of-district influences that they would be exposed to out of the district.

Mr. Mereson: --It was more than that, Justice Stevens.

It was that they felt that the insularity of the community did not permit them to participate in the education in such a way that they could get anything positive out of it, because they were so traumatized by being in an environment that was alien to theirs.

Unknown Speaker: Thank you, Ms. Mereson.

Mr. Worona.

Argument of Jay Worona

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

This case is about the limits of the Establishment Clause.

The respondents urge this Court to affirm the decision below because the statute clearly violates that clause.

As this Court has explained, a statute cannot be divorced from the circumstances existing at the time it was passed.

The circumstances leading to the enactment of the statute before this Court today at the Village of Kiryas Joel demonstrate that the law was enacted in direct response to the New York State Court of Appeals' decision in its Monroe-Woodbury v. Wieder decision, where the Village of Kiryas Joel residents unsuccessfully sought to acquire a religiously segregated environment in which their children could receive special education services.

Unknown Speaker: Excuse me, you say religiously segregated.

That sort of begs the question, doesn't it?

It was culturally segregated, certainly, you might say linguistically segregated, but why necessarily religiously segregated?

Mr. Worona: Well, when I refer to religiously segregated, Your Honor, I'm referring to the fact that this community is comprised exclusively of Satmar Hasidic individuals, and as Mr. Lewin indicated, the boundary lines were specifically drawn to only include those members.

Unknown Speaker: Well, but... well, you could say it was drawn to include those members, or you could say it was drawn to include people who speak Yiddish.

Their customs spring out of their religion, but the State was accommodating primarily their customs, wasn't it?

Mr. Worona: That's correct, Your Honor, but--

Unknown Speaker: Was it accommodating any of their religious practices, their religious ceremonies, anything of that sort?

Mr. Worona: --Well, Your Honor, all I can respond to is that in the Monroe-Woodbury v. Wieder case before the appellate division, the residents of the Kiryas Joel Village maintained a free exercise claim for their need to acquire a religiously segregated environment for the children to be educated.

Unknown Speaker: I think what they were saying is, if you do not make accommodation for a culture which springs out of the religion, you are discriminating against the religion, but that isn't the same thing as saying cultural accommodation is necessarily accommodating their religious beliefs.

I don't see how the State is accommodating any of their religious beliefs.

It doesn't allow any worship in this school district, does it?

Mr. Worona: Not that I'm aware of, Your Honor.

Of course, that's not the issue before this Court, but as the court of--

Unknown Speaker: That would be a different challenge.

There's a facial challenge here.

You're saying, even if they follow all the rules of the State of New York for secular education.

Mr. Worona: --Yes, Your Honor, because the specific issue before you today is not what the residents of Kiryas Joel may be doing constitutionally or unconstitutionally, it's what the State of New York did when it enacted this particular piece of legislation.

And in response to Justice Scalia's question from before, in the court of appeals decision in Wieder, the Monroe-Woodbury Central School Districts, the court acknowledged, undertook efforts to accommodate the cultural bilingual needs of the Satmar community, including the employment of Yiddish-speaking teachers and the provision of reports for the Satmar parents in Yiddish, so there were accommodations to that specific cultural basis that were made.

Unknown Speaker: The parents didn't think it was enough.

Mr. Worona: Well, that may be true, Your Honor, but when we look at a statute to determine whether we are responding to bilingual, bicultural needs of a community, and we see a school district has in fact responded to those needs, certainly we cannot ignore that particular fact.

Unknown Speaker: You're saying the record shows that it is responding to the religious needs.

In what way?

Mr. Worona: Well--

Unknown Speaker: I really don't understand that.

It seems to me they're responding to purely cultural needs, special language, special isolation from modernity such as television, and so forth.

Mr. Worona: --However, Your Honor, in the court of appeals decision in Monroe-Woodbury v. Wieder, we saw that the village residents were willing to forego bilingual services as long as they acquired a segregated environment for their children to be educated--

Unknown Speaker: Well, let's start with the--

Mr. Worona: --and I think that's a very big distinction with a difference.

Yes, Your Honor.

Unknown Speaker: --Can we start with the village, the creation of the village?

Mr. Worona: Yes.

Unknown Speaker: That came up in Mr. Lewin's argument.

Are you acknowledging that the creation of that village was consistent with the Establishment Clause?

There was no violation of the Establishment Clause for the... whatever it was, the zoning authority to issue this decision giving approval... the supervisor of the Town of Monroe giving approval under the New York laws on the creation of the village, to the creation of the Village of Kiryas Joel.

Mr. Worona: Well, we are not conceding that the village was necessarily incorporated in a constitutionally permissible manner.

Certainly, that's not directly before this Court.

I agree with Your Honor's question before, which was addressed to Mr. Lewin with respect to the village law in New York State, which does not allow individuals to contest the formation of villages in the same grandiose manner that other particular municipalities may be contested.

Unknown Speaker: But there was a contest at least to the extent that the original boundaries proposed were much broader than just the Satmar community, and there was opposition to that--

Mr. Worona: That's right.

Unknown Speaker: --And they were cut back to the... but the original proposal was for a larger village that would incorporate more than just this one community.

Mr. Worona: That's correct, Your Honor, but the reality that we cannot ignore is that those boundary lines were specifically drawn to only include members of the Satmar Hasidic community.

In the petition which is before you on Joint Appendix page 10, in the first full paragraph, the supervisor of the Town of Monroe in signing this petition indicated that the residents are and will be all of the Satmar Hasidic persuasion.

He indicated that the sociological way of life for the Satmar Hasidim is one of disdained isolation from the rest of the community.

Unknown Speaker: Well, let's take it that we have the village as it is.

Would there be any constitutional problem if the same facility existed but it was operated by the Monroe-Woodbury School Board instead of the elected people from this particular community?

Mr. Worona: If that facility, Your Honor, was based upon secular concerns and not solely religious concerns, I suppose that facility would be constitutional permissible.

Unknown Speaker: Make it the same facility that now exists, except that instead of having a Kiryas Joel county or village school board you have the same Monroe-Woodbury School Board that is administering all the other schools in the Monroe-Woodbury area.

Everything's the same, except the board that runs it is different.

Mr. Worona: Your Honor, if I may respond in two parts, firstly, the establishment of that type of a school for these individuals would certainly not have an element that is involved in this particular case, which is that we would not be imbuing a religious community with governmental powers and functions, and we certainly would not be--

Unknown Speaker: Well, do you see a difference... you keep saying, religious community.

The cases that are closest to this one, the precedents that are closest, as you know, involve a religious body being given the authority, a church body, where here it's citizens of a village who belong to a particular religious community but are not themselves church, synagogue officials.

Isn't there a distinction... you keep talking about a religious community.

If the power were given to the board of a religious community, then you would have a clear case.

Mr. Worona: --Well, I think we do have a clear case.

I agree with the point that you're making.

I think that in order to analogize this particular community to that of a church, we do need to look at the entire context in which this particular statute was enacted.

Mr. Lewin even in his reply brief has acknowledged that this particular section... or this particular statute is in fact placing the Satmars in a position where they would have been without the statute--

Unknown Speaker: What you're saying is that the Satmars, because they all live together, can't exercise the ordinary kind of secular authority that any other group living together could.

Mr. Worona: --No, that's not what we're saying.

Unknown Speaker: Well, it seems to me you are.

Mr. Worona: No.

We're asking this Court to examine the context in which this particular piece of legislation was established.

If a group of folks happen to reside in an area, and it was mere happenstance that they simply were able--

Unknown Speaker: Supposing a large group of Roman Catholics lived close together in some part of New York State, and they decide they would like a separate school district, and they go through the normal forms of it, an the State legislature creates a special act school district, is that suspect under the First Amendment?

Mr. Worona: --It might be.

I don't think it would necessarily be unconstitutional, if indeed the circumstances surrounding the passage of that legislation are not as they are in this particular case, Your Honor.

Unknown Speaker: Well, suppose they said, we'd like to have our own school district.

We think pretty much alike on school issues, and we just want our own school district--

Mr. Worona: Well--

Unknown Speaker: --and they're all... 99.9 percent of them are Roman Catholic.

Mr. Worona: --I think the major problem that we have in this particular case is that--

Unknown Speaker: Well, will you answer my question?

Mr. Worona: --I will try, Your Honor, and forgive me--

Unknown Speaker: Try right away, will you?

Mr. Worona: --Yes.

[Laughter]

I don't think it would necessarily be unconstitutional for a group of individuals who happen to be of one particular religious persuasion to be granted the authority of having a school district within their community.

It's very different in this case, because we have a situation where New York State specifically decided to provide this community with the ability to run a segregated school district, and that is--

Unknown Speaker: But isn't... wouldn't New York also specifically provide a... the same authority to the Chief Justice's Roman Catholic group?

Of course it would.

If the New York law is otherwise the same, and you can only charter school districts on a case-by-case basis, it would do the same thing there that it would do here.

Mr. Worona: --Well, that's precisely the point that the respondents are making, and we believe--

Unknown Speaker: But isn't the difference that there wouldn't be any alternative to having a school district in the Roman Catholic case, where there is an alternative to having this school district in this case?

Mr. Worona: --That's correct, because this school district, Your Honor, was one of a... was part of an existing school district at the time, which I think is a very big distinction, and indeed, the establishment of this school district I think would violate some fundamental principles of the Establishment Clause.

Unknown Speaker: Well, are you--

--Supposing that my Roman Catholic hypothesis, they want to break away from the school district they're in, just like the people did here?

Mr. Worona: If they wanted to break away for the reason of acquiring governmental powers and functions to live an insular life style in conformity with their religious precepts, I suppose that would be unconstitutional as well, Your Honor.

Unknown Speaker: Well, is it a necessary element of your answer that they want to live an insular lifestyle?

What's that got to do with the First Amendment?

Mr. Worona: Well, it has to do with the First Amendment in that I don't think this particular culture can be divorced from its religious traditions and practices.

Unknown Speaker: How would you distinguish this from, say, just a community in Utah, where the people in a village are all coreligionist?

Mr. Worona: As I understand the formation of Utah, certainly the United States Government required the Mormons, who were predominantly occupying the State prior to it becoming a State, they were required to put special provisions in their Constitution to protect the United States from acquiring a State that would be arguably theocratic, and the difference, I think, is that if somebody happens to move into a place where there isn't... there is not already an existing school district that is serving them, we have a situation where there is a secular need.

They need to be served.

They need to acquire a school district.

Here, the Kiryas Joel Village residents were already part of the Monroe-Woodbury Central School District.

Unknown Speaker: That's the problem.

They did it too late.

If they'd only gone out in the wilderness where there was another--

[Laughter]

Where there was not another school district near them to start off with, they would have been okay.

Mr. Worona: I don't know if--

Unknown Speaker: So all they have to do is move further out into New York State and they can start their own... they'll do it if you say that's okay, I'm sure.

Mr. Worona: --Well, Your Honor--

[Laughter]

As I understand it, Your Honor, every single... every single parcel of land in New York State is presently occupied by the boundaries of a school district, so I don't think that frontier type of a scenario would necessarily exist.

Unknown Speaker: Is it your contention that one of the principal, or maybe the only purpose of forming the new district was to transfer powers to people by reason of their religious beliefs, or is that not your contention?

Mr. Worona: I'm sorry, Your Honor, could you repeat that question?

Unknown Speaker: Is it your contention that one of the principal purposes of this statute was to transfer governmental power to a group of persons by reason of their religious practices and beliefs?

Mr. Worona: I suppose the answer to that question is, we believe that a political constituency defined along religious lines has in fact been established by the statute, Your Honor.

The particular community of individuals who are devoutly religious were imbued with governmental powers and functions to allow them not simply to be exempted, as this Court has in the past accepted, to privately pursue their religious perspectives, but rather, New York State has offered its arm to these individuals to be able to run a school district with full governmental--

Unknown Speaker: For what reason?

Why a town but not a school district?

May I just finish?

For what reason?

For what purpose?

Mr. Worona: --For what purpose what, your Honor?

Unknown Speaker: For what purpose was the power given to them?

Mr. Worona: To allow them--

Unknown Speaker: Because it seems to me, otherwise you cannot distinguish your case from the Chief Justice's hypothetical.

Mr. Worona: --Well, I think the purpose certainly here is one of segregation along religious lines.

It was the pursuit of that particular principle that was primarily sought after, and indeed was advanced by this legislation.

Unknown Speaker: The... aren't you giving two different answers?

I mean, you're giving a purpose answer to Justice Kennedy, and a moment ago you gave a no alternative answer to me when we were discussing the problem posed by the Chief's hypothetical on the Roman Catholics.

Is the problem, as you see it, that there was an express purpose to transfer power to a religious group, or is the problem here that there were alternatives to doing that, to accomplish the same result, and they didn't avail themselves of the alternatives?

Which is it?

Mr. Worona: Well, we're not suggesting it's necessarily the latter.

I think having the latter present will perhaps provide a greater effect of unconstitutionality of this particular piece of legislation, but we are maintaining certainly that the legislature designed this particular piece of legislation to allow this particular religious community to dictate what educational services would be provided in conformity with their traditions and beliefs.

Unknown Speaker: I don't see why that isn't present in a good many communities, as Justice Ginsburg suggested, in the State of Utah, where members of the Church of Latter Day Saints live in certain communities and want to have their own school districts, and they do, so under your view, all those would be invalid.

Mr. Worona: No, I don't believe they would all be invalid, Your Honor, I believe that this case can only be analyzed in looking at the entire context in which this particular legislation was effectuated.

If, indeed, we have a community, as I answered the Chief Justice before, that happens to be of a particular religious persuasion, which happens to have a school district, that doesn't necessarily make it constitutionally infirm.

The constitutional infirmity here is by setting up political constituencies defined along religious lines--

Unknown Speaker: Well, it's defined along cultural... let me give you a two-part hypothetical.

Suppose you have a community divided by railroad tracks.

One side of the community is a very swinging, modern-type crowd, and they like avant-garde education, sex education and all that.

The other side of the tracks, influenced by a reaction to modernity, feminist aversion to obscenity and so forth, they want old-fashioned education.

They can have two school districts if the State sees these people want different things in education?

That's okay?

Mr. Worona: --Well, I presume in your hypothetical there would not be religious beliefs that were present.

Unknown Speaker: Right.

Right.

Mr. Worona: Okay.

I think that we would not be dealing--

Unknown Speaker: That would be okay.

Mr. Worona: --with an Establishment Clause--

Unknown Speaker: Right.

Now, my second hypothetical is--

[Laughter]

--they have the same beliefs, the same... some like sex ed, some don't.

However, the reason for it is not feminism, or avant-gardism, the same cultural preferences spring from their religious beliefs.

Then you couldn't do it, right?

Mr. Worona: --I suppose there would be an Establishment Clause problem.

Unknown Speaker: Oh, no.

Mr. Worona: Our position is not based upon anything but the fact that there is an Establishment Clause at this point.

Unknown Speaker: You cannot accommodate any... any beliefs that spring from religious motivation?

Mr. Worona: No, that is not our position, Your Honor.

We believe that accommodation is certainly acceptable.

This accommodation, however, will in fact place the balance off the kilter of the scale.

Unknown Speaker: Was Judge Kaye's accommodation okay?

That is, she said in her most recent opinion that if you... as I understand it, you had this neutral facility, same facility, but it was run by the Monroe County School Board.

That accommodation would be okay.

Mr. Worona: If, in fact... yes, Your Honor, if in fact that accommodation was in conformity with this Court's pronouncement in Wolman v. Walter, which dealt with the provision of neutral sites to children who were attending parochial schools.

Unknown Speaker: Well, let's take the if out of it.

Just... everything that we have here, except that it's the Monroe County School Board, not a separate school board, that's running it.

If that's okay, then I think what you're suggesting is that we have to look to the purpose... one of the hardest problems as I see it is that these people are citizens of a community, and they're elected the way representative elections are conducted, but they're also members of a tightly knit religious community, and your argument seems to hang on equating them, saying that they can't take off their religious hats when they're elected to be members of the school board.

I think that's the essence of your argument.

Mr. Worona: Well, it really isn't, Your Honor.

I think the essence of our argument, if we were looking at Lemon v. Kurtzman and its three prongs, would be the second prong, because chapter 748 of the laws of 1989 communicates a message of endorsement to the public, and they may fairly understand that the purpose of this act was to accommodate Satmar separatist beliefs, and the public perception of endorsement is reinforced by this statute in that it's not a statute of general applicability, as many justices have already noted.

Unknown Speaker: Well, if the New York law read that school districts will always be coterminous with religious districts, would you have an objection?

Mr. Worona: With religious districts, Your Honor?

Unknown Speaker: I'm sorry, with municipal districts.

Mr. Worona: No.

I think that would be a secular particular law, and if in application there was a problem, certainly there could be a challenge at that particular time.

Here, we're dealing, as I started to indicate--

Unknown Speaker: Would you have a challenge to it?

Mr. Worona: --Would I have a challenge?

Not based upon this particular facial challenge, Your Honor.

The respondents in this action believe that this particular action of the New York State legislature, if precedentially allowed to exist in this Nation, will not only politically fragment our Nation, but will place children in a position of understanding that the way we deal with diversity and respect for ourselves religiously is to have Government separate people along religious lines, and that is something that we don't think is palatable for the country or consistent with--

Unknown Speaker: Let me test that if I may.

Is it not true that this district accepts students from outside the particular neighborhood?

Mr. Worona: --That's correct, Your Honor, but our understanding, and it's in the record, all of those children are also members of the Satmar community.

Unknown Speaker: Do you know what language the teaching is conducted in in this district?

Mr. Worona: I do not know.

In the petitioner's papers, they indicate that they are maintaining a secular program, but since that is not the issue before the Court, I do not have any personal knowledge of that.

Unknown Speaker: Is there any New York law that requires that school districts do their teaching in the English language?

Mr. Worona: That... that--

Unknown Speaker: That English language be taught in schools in New York?

Mr. Worona: --Not that I am aware of, particularly, but of course, that's not the issue before us.

The issue is not what, again, Kiryas Joel may be doing in maintaining their program, but rather what New York State did when it established this particular school district.

I want to make one other point that I think is very relevant, because I think we all are here today to talk about the children, and I think one of the things we cannot ignore is the fact that this particular statute in essence precludes these children from acquiring the protections of both Federal and State laws that serve disabled children.

Those laws are predicated on the premise that those children must be mainstreamed as much as possible, and as much as feasible.

These children are in--

Unknown Speaker: That's a statutory violation.

I mean, you can bring another suit for that, I suppose.

Let me ask you this, Mr.... let me ask you this question about our Federal Congress.

I'm reading from the Congressional Record in which the Senate Majority Leader, Mr. Mitchell, is describing the legislative schedule for the 102nd Congress in 1991.

He lists the nonlegislative periods.

He lists Presidents' Day, Lincoln's Birthday.

March 29th, Good Friday.

March 30th, Passover.

March 31, Easter.

September 9, Rosh Hashanah.

Is all that unconstitutional?

Mr. Worona: --No, I don't believe so, Your Honor.

Unknown Speaker: Why not?

Mr. Worona: Well--

Unknown Speaker: It's just accommodating the religious practices of people for Congress to go out of session in order to accommodate people who want to observe Good Friday or Rosh Hashanah.

Why isn't that unconstitutional?

Mr. Worona: --Because we're not imbuing any particular governmental functions on any particular religious person to carry out those... his religion.

We are rather allowing people to privately pursue their religion.

Unknown Speaker: But you can have a minister be a member of a legislative body.

Mr. Worona: Yes, Your Honor.

Unknown Speaker: And so that's... and so, why can't you have a school board composed of people of a certain religion who are not the political... who are not acting in their capacity as a governing body of a church?

Mr. Worona: Well, we are not, again, Your Honor, maintaining that our argument is predicated upon a belief that the Satmar religious leaders will necessarily be incapable of exercising governmental powers and functions.

We maintain that that is true, but that's not the basis upon which our argument lies.

Rather, we are indicating that we are taking--

Unknown Speaker: You maintain that is true as opposed to, say, a Catholic priest serving as a legislator?

Mr. Worona: --No, Your Honor, but in this particular record, when the school board was first established, a gentleman tried to run for the school board against the directives of the Grand Rebbeh, and as I under--

Unknown Speaker: Maybe you have some kind of an as-applied challenge.

There's been a lot of things outside the record that have been suggested, that the claim that this school is run in a secular way and that the school board is acting as any secular school board would operate, that that's not true.

That would be a different case, not the one that's here.

This is a facial challenge, right?

Mr. Worona: --Well, that's correct, Your Honor, but we think the record is very clear about the points that you are maintaining.

For example, prior to the establishment of this school district, the Monroe-Woodbury Central School District urged the Governor to sign this legislation, and they indicated that if a non-Hasidic child requiring regular education moved into the Kiryas Joel School District's geographic boundaries, and then... this is on page 2 of the Joint Appendix, and this is virtually impossible.

The child would be tuitioned to Monroe-Woodbury or another district.

The legislators who passed this action also were well aware--

Unknown Speaker: It seems eminently reasonable.

He would have a cultural problem in the Kiryas Joel district, just as the Kiryas Joel children have cultural problems in the other district.

Why do you find that so extraordinary?

Mr. Worona: --Because if we look at what was provided... and Your Honor is quite correct, we are dealing with a situation here where looking at disabilities laws is a Federal statute and would not necessarily be a constitutional impermissibility.

However, if these children are incapable of acquiring their rights under Federal and State law, and we understand why, and that is because their parents wished to maintain a lifestyle, then--

Unknown Speaker: It's like a parent in the hypothetical I gave you who wants her child to have sex education and seeks permission from the school district on the one side of the tracks to send the child to the school district on the other side.

What's so wrong about that?

Mr. Worona: --Well, again, I think the principal point of where we maintain our argument, which a crucial distinction is that there is not an imbuing of governmental powers and functions upon an individual in that situation.

There is simply--

Unknown Speaker: Isn't there--

Mr. Worona: --that is provided.

Unknown Speaker: --Isn't there also another difference, and that is the Monroe-Woodbury School District didn't have a plan to tuition-out every student from this community, whereas what you have just read to us sounds like a plan to tuition out every one who is not a member of the community.

Mr. Worona: Right.

I think that is a crucial distinction, Your Honor, and I think that certainly under New York State law, Monroe-Woodbury could have provided the benefits that are being sought here.

Indeed, when they began this litigation in Monroe-Woodbury v. Wieder, the case that was looking for a neutral site, they maintained that they could not serve these children any other place but the public schools.

The court of appeals, New York State's highest court, ruled that that was not necessarily true.

They also maintained that there was some constitutional infirmities with segregating these children along religious lines, and now they stand before you today and indicate that it is not necessarily unconstitutional to do the same thing by having New York State segregate children along religious lines.

Unknown Speaker: Mr. Worona, on the tuitioning out, do I understand correctly that the people who tuitioned out are the regular students for whom there are no facilities, but if they were someone... a disabled child who was from... who was not of the Satmar community, that person wouldn't be tuitioned out, would that person?

Mr. Worona: Well, Your Honor, they can by this statute have a regular school.

The... everyone envisioned that this school--

Unknown Speaker: But I'd appreciate an answer to that question.

Suppose there is a child in the school district who is not of the same religion, and who is disabled, that child would not be tuitioned out, would that child, under the--

Mr. Worona: --Not necessarily, but of course we maintain that everyone understood quite well that that would not happen.

I'm sorry, Your Honor.

Unknown Speaker: --Then the distinction that I was making wouldn't apply.

Mr. Worona: Well--

Unknown Speaker: I thought you agreed with the distinction I was making, but as I understand your answer to Justice Ginsburg, that answer wouldn't be apposite.

Mr. Worona: --Well, what we are asking this Court to look at--

Unknown Speaker: Well, regardless of what you're asking the Court, what is the answer to my question?

Mr. Worona: --Well, could you repeat the question, Your Honor?

Unknown Speaker: Well, I thought your answer to an earlier question was that there was a distinction to be drawn between a plan to tuition out all non-Hasidic students, as distinct from a plan to tuition out of the main school district all students who were Hasidic, and as I understand your answer to Justice Ginsburg's question, the plan that you referred to on page, I think 10 of the record, was simply a plan to tuition out all nondisabled students.

Mr. Worona: Well... yes.

Unknown Speaker: Is the latter correct?

Mr. Worona: That is correct.

However, I think the--

Unknown Speaker: Then the distinction I was drawing does not apply.

Mr. Worona: --Well, we believe it does, because even though those are the words in this particular paragraph, I think the context of those words, when it says virtually impossible, is referring to the fact that no other non-Satmar individual would be residing in that community.

I don't think that's really in dispute here.

Mr. Lewin has admitted that most of the residents, or all of the residents, are members of the Satmar community.

I think the essential question that needs to be asked, and if, indeed, the Kiryas Joel Village School District was indeed capable of becoming as heterogenous as the Monroe-Woodbury Central School District, what benefit would have actually been afforded to these individuals?

The statute would have had absolutely no purpose.

So I think we can all move on from that particular issue and answer the question as to whether it's a violation of the Establishment Clause, not whether it was indeed capable of being as heterogenous as the school district that it was seceding from.

Unknown Speaker: Let me ask you a different question going back to something you said a few moments ago, and I'm not sure that I understood you.

Did you indicate a few moments ago that you thought the suggestion which I guess was made by Chief Judge Kaye that the State could have set up a separate neutral place for the education of these handicapped children alone would have been unconstitutional?

Mr. Worona: It could have been unconstitutional.

I don't believe it necessarily would have been unconstitutional.

What we were indicating is that it would still have to be in conformity with this Court's pronouncements in Wolman v. Walter.

Unknown Speaker: Thank you, Mr. Worona.

Mr. Lewin, you have 2 minutes remaining.

Rebuttal of Nathan Lewin

Mr. Lewin: With respect to Judge Kaye's suggestion, Justice Souter, we, in addition to thinking it's the wrong test, we think it's not clear that that's the least restrictive alternative by any means.

Providing responsibility, as well as authority, is what this statute did, and what is one going to conclude, what is the least restrictive alternative?

Monroe-Woodbury School District itself prefers this solution, which apparently it believes is less restrictive in terms of the overall school district, than the solution of forcing them to provide neutral sites.

Justice Kennedy asked about the purpose, and I think that clearly distinguishes this case and makes it so much stronger than the hypothetical that the Chief Justice suggested.

In this case, there are a body of disabled students.

In the Chief Justice's hypothetical, it is a community that wants to have its own school district, and there's nothing unconstitutional, even if they're religious, and we agree.

But all the more so is that true if there is a reason for the legislature to deal with a group of disabled students, and in this case, the record is clear from the respondents' own expert, Joint Appendix page 88.

She says,

"These parents kept their children out of the public school to avoid the trauma they believe the children would suffer because of their cultural uniqueness. "

That's what their own expert said in an affidavit that's in the record.

And in response to Justice O'Connor with regard to other... other school districts, the complaint itself alleges in paragraph 63 of the second amended complaint, at page 62 of the appendix,

"the legislature has exercised this authority most commonly for the purpose of creating a public school in the case of.... "

Chief Justice Rehnquist: Thank you, Mr. Lewin.

Mr. Lewin: Thank you.

Chief Justice Rehnquist: The case is submitted--

Attribution:

The OYEZ Project

Featured:

Zobrest v. Catalina Foothills School District - Oral Argument

Fri, 09 Jan 2009 14:49:25 +0000

Case:

Zobrest v. Catalina Foothills School District

Media File:

92-94_19930224-argument.mp3

Related Transcript:

1992_92_94_argument.xml

Transcript:

Argument of William B. Ball

Chief Justice Rehnquist: We'll hear argument next in No. 92-94, Larry Zobrest v. the Catalina Foothills School District.

Mr. Ball, you may proceed.

Mr. Ball: Chief Justice Rehnquist, may it please the Court:

The important issue posed by this case is whether Jim Zobrest, the petitioner, a profoundly deaf boy, would have to have forsaken education in the State-qualified religious school of his parents' conscientious choice if he were to participate in a program designed by the Congress of the United States to aid the education of all handicapped children, including children in public and religious... including public and private and religious schools.

Now, the courts below answered that question by saying yes, and that is the respondent's position and that of the respondent's amici.

Now, Jim, in order to be educated, had to have the service of a certified sign language interpreter, a related service under the Education of the Handicapped Act.

He had to have it on the place where his education was going to happen, and the place where his education was going to happen was Salpointe Catholic High School, a high school which meets the requirements of Arizona's compulsory attendance law and which is accredited as a college preparatory school by the North Central Association of Colleges and Schools.

But it's also a school which is pervasively religious, and on the ground, the sole ground that to afford Jim a sign language interpreter, on the premises of a pervasively religious school, would violate the Establishment Clause, the court... the respondent school district denied him the service.

Unknown Speaker: Mr. Ball, before you get too far, just clarify one point for me.

Under the statute, could... does the statute only provide for in-kind furnishing of services?

Would the statute not permit the parents to hire their own sign language interpreter and be reimbursed?

Mr. Ball: Yes, Your Honor.

We don't find any authority in the statute for the school district, for example, to have paid the parents money so they could go and hire the interpreter.

In fact, there is a... under section 1415... the subsection I can't recall... it seems... would seem to preclude that.

All the funds therefore... funds therefore could not be disbursed to the parents for that purpose.

Unknown Speaker: 1415 is what--

Mr. Ball: Yes.

Unknown Speaker: --Let me ask you a different question about what may just positively be prohibited.

At any point have you litigated the effect of the Arizona constitution or the effect of the statute and the regulations on the ultimate question of entitlement here?

Mr. Ball: We have never... in this case because solely the Federal Establishment Clause was raised, we have not in any way gone into the Arizona constitutional question.

Unknown Speaker: And you haven't litigated the legal as distinct from the constitutional issue.

Mr. Ball: I'm sorry?

Unknown Speaker: You haven't litigated the question of legal entitlement, entitlement under the law and the regulations, as distinct from the constitutional issue.

Mr. Ball: Well, we have not litigated it because, in fact, the process had already gone a great distance.

The school district at the--

Unknown Speaker: No, I'm not necessarily faulting you for it.

I just want to make sure that I am right that the record simply does not contain determinations on these two issues.

Mr. Ball: --No, Justice Souter, but I think it's important that I add there the fact that at the time the parents applied for EHA help to the school district, the... Jim was already enrolled at Salpointe Catholic High School, and the issuance of the individualized education program to him took place in the context of the fact that that's where he was and that the sole problem... the sole problem... and this appears in the individualized education report itself.

The sole problem was the Establishment Clause.

Now, the key issue, as we see--

Unknown Speaker: Have you taken a look at the statutory provision and the regulations here, and are you... would you conclude that they clearly require the provision of the services in private schools?

Mr. Ball: --Yes.

The... to begin with, section 1415(a)--

Unknown Speaker: Or does it leave it open to the State to decide?

Mr. Ball: --Well, they don't leave the... the statute doesn't leave it open to the State to decide whether private school children will be included, and the statute also provides and the regulations provide that there will be provision made for the education of children enrolled in all private schools.

And the regulations, the... under 30 of the Code of Federal Regulations... specify even parochial schools.

They use that term, and the only question then is where and under what circumstances those services would be provided.

But there has to be afforded the child in the private school, including a parochial school, a genuine opportunity.

He must be furnished or she must be furnished services of the same scope and quality as those provided for public school children.

Unknown Speaker: Did the school district ever raise any objection based on the regulations or the statute?

Mr. Ball: None whatever.

Their sole... Chief Justice, their sole objection throughout was the Establishment Clause.

In fact, throughout the proceedings before the district court and before the court of appeals, they insisted that Jim would be provided... would be required to be provided the services by them on the premises of a public school or of any... any... nonsectarian private school.

Now, the key issue, as we see it, is whether the... furnishing of an interpreter to Jim would have had a primary effect advancing religion.

We are regarding the entanglement problem raised as a lesser issue.

If time permits, I will cover that or if, of course, I'm asked.

The respondent give three reasons why they believe it has a primary effect advancing religion.

One is that it would constitute support for a religious institution.

I think we can dispose of that rather quickly.

Salpointe Catholic High School has no interest in the case.

It would get nothing in the money... in the way of money or materials by accommodating and taking on the burden of accommodating an interpreter, a certified sign language interpreter, for one boy.

They have no program.

Unknown Speaker: Yes, but... may I just... perhaps it's too minor, but at least they will have him paying his tuition there.

If he can't get the interpreter, he'd have to go to school someplace else.

Mr. Ball: No.

The tuition would not be paid for at all by the school district.

Unknown Speaker: No, no, no, but his parents are paying the tuition now.

Mr. Ball: They did, indeed.

Unknown Speaker: But they will not be paying that tuition to the school if he goes to school someplace else.

Mr. Ball: The parents will pay the tuition to the school where their child is enrolled.

Unknown Speaker: That's right, so that if he doesn't get the interpreter, he won't attend the school, and they won't get that particular tuition.

That's all I'm saying.

It's perhaps a small point.

But is it not true that he needs an interpreter wherever he goes to school?

Mr. Ball: Absolutely so.

Unknown Speaker: And if he can't get it here, he'll have to go to school elsewhere.

Mr. Ball: Yes.

Then he'd have to give up the religious education.

Unknown Speaker: And the school would lose that amount of tuition.

Mr. Ball: The school would lose that amount of tuition--

Unknown Speaker: Maybe that's not significant.

Mr. Ball: --for one child.

Unknown Speaker: But they will lose at least that much.

Mr. Ball: With all respect, Your Honor, I think it is not significant.

Unknown Speaker: Well, it's probably more than the cost of the interpreter, isn't it?

Mr. Ball: It is more than the cost of the interpreter, but here's a school with many children.

This is one interpreter for one child.

We're speaking of one school, and--

Unknown Speaker: And unless the school loses money on each child, which a lot of schools do--

Mr. Ball: --Yes.

Unknown Speaker: --and the deficit made up out of contributions.

Mr. Ball: They had no program for the deaf.

There's no real market to bring in deaf children.

Sign language interpreters who are certified are very, very scarce.

The second reason which the respondent attempts to advance is that a certified sign language interpreter will inadvertently or intentionally inculcate religion in the children.

Here I think the respondents totally misconceives what certification of a sign language interpreter amounts to.

Under... in Arizona, an interpreter must be qualified under the interpreter quality assurance system.

He is a member of the registry, the national registry of interpreters for the deaf, and thus is bound to a very strict code as to what the interpreter's function is.

It's simply to translate American sign language into spoken English, spoken English into American sign language, and that's it.

Unknown Speaker: Mr. Ball, isn't there a slightly different argument which has greater strength here, and that is not that the interpreter is going to inject a religious element that is not there, but that the interpreter is, as I understand it, a kind of necessary functionary for the religious message to get through?

And, therefore, the interpreter is... in effect, is just as necessary as having the teacher or the priest or whatnot there and, therefore, is just as much an integral part of the conveyance of the religious message as some of the equipment, for example, which was denied to schools under our prior cases under Meek and Wolman on the theory that they might be used for that purpose.

Mr. Ball: Well, in the first place, the interpreter is indeed, a... the window of communication of religion in the schools.

He will be conveying religion.

No doubt about it.

It's a given in the case.

The fact that he does that does not put him... does not create an image of authority to him in any sense that a teacher has.

He... the respondents have said that he becomes part of a teaching team integrated, as you were saying, into the teaching apparatus of the school.

In fact, he's not a member of... if he's a member of the team, he's a member as interpreter.

He doesn't come under the strictures of Lemon... of Wolman and Meek in terms of the... in terms of his function.

Unknown Speaker: Yes, but tape recorders, or whatever the equipment--

Mr. Ball: Yes.

Unknown Speaker: --was in those cases, I suppose didn't acquire any such aura either, and yet their potential use for the purpose of this kind of communication was forbidden.

And why isn't this interpreter, even if we assume the kind of neutrality of the role that you describe, in the same boat with the equipment?

Mr. Ball: Well, you bring me back to Meek, Justice Souter.

In Meek, I find nothing by which the Court said that a hearing aid, for example, could not be loaned or provided to a... for the use of a child in a religious school.

Unknown Speaker: Well, how about a hearing aid that is only used during school hours when the school's purpose is religious?

That would have been a different case, wouldn't it?

Mr. Ball: Well, in our case it's used... the interpreter is used for the whole educational program, and there we get to the question of whether the fact that he is used for religious purposes, as well as secular purposes, results in a primary effect advancing religion.

Unknown Speaker: Well, only because the school has secular, as well as religious, purposes.

Mr. Ball: Exactly.

Unknown Speaker: And what I was trying to suggest is that it seems to me that the interpreter here is pretty much in the category not of the hearing aid that's used during all waking hours and outside the school, but in the position of the equipment which is used only during the school, which was the problem in Meek and--

Mr. Ball: But it was a problem in Meek, if I may say this, only because the... of the massive size of the program.

I well realize what the Court said in Meek about the fact that the inanimate object could be turned to religious uses.

But as I've reread Meek very, very carefully, it's quite clear that in an effort to distinguish the Meek situation from what the Court faced in Allen v. Board of Education, the Court was saying, well, here you're into a massive program of supplying materials and supplies and equipment to parochial school systems.

I think the interpreter... I think if the boy must be denied this... the service of an interpreter here because it would be like the hearing aid and that the hearing aid was forbidden in Meek, I don't think it becomes a realistic application of Meek.

Unknown Speaker: --Mr. Ball, you're not really going to try to reconcile all our entanglement cases, are you, or anything?

[Laughter]

Are you going to tell us why a globe is okay, but a book isn't and you know?

Mr. Ball: The answer is that--

Unknown Speaker: Senator Moynihan's question, what about a map and a book?

Mr. Ball: --The answer is that I will not, Your Honor--

[Laughter]

Unknown Speaker: You couldn't.

[Laughter]

Mr. Ball: The next reason given by the respondent... and this was the reasoning... one reason of the court of appeals why the furnishing of the sign language interpreter to Jim would have had a primary effect advancing religion... is that it would have created a symbolic union of church and state.

And this can be... and the respondent addresses this under two headings.

One refers the... the first heading refers to the impressionable youngsters, Jim's peers, who would be... who would see that interpreter as symbolizing a union of church and state, as an endorsement by the school district of a Catholic school.

I can only stretch my imagination so far, but it goes to the breaking point when I'm thinking of Jim's peers, these impressionable youngsters, saying something like, guys, you see that fellow who's making those signs.

Well, it's like awesome.

Right here in chem lab we're seeing a violation of the Establishment Clause--

[Laughter]

--of the First Amendment.

Unknown Speaker: I thought the argument was for establishment that here is the State furnishing directly financial support for a sectarian purpose.

Mr. Ball: Yes, but--

Unknown Speaker: None of that symbolism business.

It's just that they're... you're not supposed to furnish money to a... you think the State could... under our cases could just pay for the... pay for... contribute to the sectarian schools the amount of that to the extent they are furnishing a secular education?

Mr. Ball: --I was dealing only with the question of a symbol, an image of endorsement, in the eyes of impressionable youngsters, and I simply don't think that it... that that flies, that these children would do... would have any particular impression of it.

If they did, they might say the school district is helping Jim.

Well, that's neat.

I would think that would be a far more likely image that the kids would have.

Secondly, they say that furnishing the interpreter would create the image of a joint enterprise of church and state.

This again... here they rely on Ball v. Grand Rapids School District, but there you had 40 sectarian schools.

You had a massive infiltration of teachers, public teachers, into religious schools.

You had leasing arrangements.

Nothing like the image that one boy with one interpreter in one school can conceivably provide to the public.

The--

Unknown Speaker: Would the case be different if we were dealing with a tutor for a homebound student in a parochial school, someone who had to convey their own views of the materials to--

Mr. Ball: --Oh, very much so.

Unknown Speaker: --instruct the child?

Mr. Ball: Very much so, yes.

Here the... sign language interpreters have been described to me as regarding themselves as nonpersons, which gets us very close to the hearing aid example that Justice Souter raised.

I think the primary effect that this furnishing of the interpreter would have is simply to enable a youngster to get an education in the general branches of learning.

The respondent says that the... that one reason why you can see a primary effect advancing religion here is that the parents chose a religious school, and their motivation was to get him a religious education.

Of course, it was, but was there not a far more obvious reason, namely, to get this boy equipped for the business of life by getting an education in the general branches of learning, learning the same math that will be learned in a public school, the same modern foreign languages, the same computer literacy, everything that he would get in a public school in order to enable him to become independent, to become self-sustaining, and to survive in a world not always hospitable to deaf people?

There has been much talk in the media about whether we are seeking an overruling in this case of Lemon v. Kurtzman.

Nothing in Lemon bars, as we see it, the providing of this service to this boy.

I think, however, that the respondents and their supporting amici come perilously close themselves to seeking an overruling of Lemon because they appear to ask this Court to strike the primary effects test from the Lemon test, and instead of saying primary effect, advancing religion, they seem to be urging the Court to say any effect accommodating religion.

I'll reserve what time I have left for rebuttal.

Unknown Speaker: Thank you, Mr. Ball.

Mr. Bryson, we'll hear from you.

Argument of William C. Bryson

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

We agree with Mr. Ball that the principal issue in this case is whether the second test from Lemon is satisfied, and we submit that the primary effect in this case of the benefit that was conferred is not to advance religion and that the second test in Lemon, therefore, would indicate that this is not an establishment of religion.

I think it's useful to look at perhaps the most succinct statement of the test under Lemon, the succinct... most succinct recent statement that this Court has made, and that comes in a concurring opinion of Justice Powell... excuse me... which was joined by two other members of the Court and was endorsed by yet another two members of the Court.

So, in a sense, it speaks for a majority of the Court in the Witters case.

And he said, quote, State programs that are wholly neutral in offering education assistance to a class, defined without reference to religion, do not violate the second part of the Lemon test because any aid to religion results from the private choices of individual beneficiaries.

Now, that is this case, as we see it.

This--

Unknown Speaker: I'm a little concerned about the interpreter here.

He's a public employee, isn't he?

Mr. Bryson: --Yes.

Unknown Speaker: And he is directed to go to a Catholic school and listen to sectarian theology and then impart it to... I assume he has to listen to it and understand it before he can translate it.

Right?

Doesn't that trouble you?

It troubles me a bit.

Mr. Bryson: He has to understand the words.

I'm not sure he has to understand the--

Unknown Speaker: Well, he has to listen to it.

Mr. Bryson: --Yes.

Oh, yes.

Unknown Speaker: He has to listen to it.

I mean, what if he's a... you know, an adamant anti-Catholic?

Can he turn down the assignment?

Mr. Bryson: Well, of course, he could turn down the assignment for any reason he chose.

He could turn down the assignment because he had to drive too far.

But typically with sign language interpreters--

Unknown Speaker: This is... does the Federal Government let you do that?

I mean, it's a--

[Laughter]

Mr. Bryson: --Well, he... this is a State government, Your Honor.

[Laughter]

Unknown Speaker: A State government.

[Laughter]

Mr. Bryson: He could... typically sign language interpreters have many occasions in which they will hear things that they disagree with and will sign them nonetheless.

That's just part of the job.

They are not expected to agree or disagree with whatever they're signing, and they're not expected to change, by virtue of their own predilections, anything that they hear.

Now, the themes that I think that you can trace through this Court's Establishment Clause cases, in the aid to schools area at least, that we can tease out from Justice Powell's statement are as follows.

First, where the service is made available directly to the individual as opposed to the school, you will ordinarily not find an Establishment Clause violation.

Similarly, where there's a broad class that is the recipient of the service that is not based on religion... in this case, everyone who is the subject of a disability was a student... that also indicates no Establishment Clause problem.

Third, where the school gets no financial benefit out of the arrangement.

And here, I think in answer to Justice Stevens' point that the school does, after all, get the tuition, this Court has been very clear in cases going back to Everson, which was the bus transportation case, and going through the Allen case and the Mueller case, the tax deduction case, and Witters, Witters in particular, that the fact that the school gets another student and the associated tuition is not enough to constitute a primary effect for Lemon, the second part of the Lemon test, purposes.

So, there's no financial benefit here.

Salpointe is essentially in a position of just being a stakeholder with respect to the financial impact of this arrangement.

And finally, that... you have to ask the question of whether there is any expression of endorsement or support for the religious view that is being put forward or for religion at all.

And here again, we submit that there is neither any implicit support on the part of the State for anything that's being said here in the religious school merely by virtue of the fact that the State is providing the child a means to hear what's being said, nor is there any sense in which the State is somehow endorsing the message of Salpointe High School in general by providing an interpreter there.

The interpreter is serving as this child's ears.

This interpreter is doing nothing more than performing at the State's behest the service of enabling this child to hear whatever it is that--

Unknown Speaker: Mr. Bryson, may I ask whether it is clear here that the statute and regulations require the State to provide this service?

Mr. Bryson: --The statutes and regulations, Your Honor, do not require it.

The statute operates essentially as this.

The statute gives local educational agencies a great deal of freedom to design programs as they will.

That may mean in some cases that the local educational agency will say we are going to provide certain services, but only in the public schools because it's just impractical to do it.

There's nothing that compels.

Unknown Speaker: That would be consistent with the Federal scheme.

Mr. Bryson: That's right.

That's right.

Unknown Speaker: And if Arizona's constitution, for example, prohibited the furnishing of a... of services like this, that wouldn't interfere with the Federal scheme at all.

Mr. Bryson: Well, there's a provision... the short answer is no, it wouldn't.

The somewhat longer answer is there is a provision in the statute that allows what's called bypass, which is to say, if there's something about local law that generally precludes a certain type of service, then you can go directly to the Federal bypass provision and you can get aid directly from the Federal Government.

So, there is a provision in the statute that deals with that problem.

But the way this case comes to the Court is that it was conceded all the way along that this service would be available to this child except for the fact that he was in a religious school and only then, not because of the choice of the school district, but only because the school district felt compelled by the Establishment Clause to say no.

This case has been purely an Establishment Clause defense to what otherwise would be the school district's conceded acknowledgement that under their own policies they would provide the service to the child in place.

Now, the school district--

Unknown Speaker: Mr. Bryson, may I just keep you interrupted for a moment more and go back to your point on the primary effects test?

If you accept the premise, which I think we all do, that the interpreter is necessary in order to communicate or to hear, however you want to put it, the message, and if you also accept the premise, which is that, I understand it, of the school, that the intertwining of the religious and the secular messages are... is inextricable--

Mr. Bryson: --Yes.

Unknown Speaker: --that is, that is really the point of the school as they run it... does it make any sense to try to apply a primary effects test here?

The fact is the entirety of the message is going to have a religious content, a religious overlay, a religious reference, and there's no way to communicate or to hear anything without communicating or hearing the religion.

Under those circumstances, does the primary effects test make any sense?

Mr. Bryson: I think it does, Your Honor, and that is because what we're concerned with is asking... is, does this benefit itself actually have the primary effect of advancing religion?

Here, the State has acknowledged that he can get an education at this school that satisfies the State's requirements.

So, they have defined this institution as a valid secondary school for Arizona purposes.

Unknown Speaker: There's no question it has a secular function too.

Mr. Bryson: That's right.

Unknown Speaker: Yes.

Mr. Bryson: You would apply primary effect to this case just as you would to the bus driver case or a case in which, for example, the school district provided... suppose we had a severely paralyzed child who needed a nurse to wheel him in a wheel chair from one class to another, including religion classes.

We submit that that would not have the primary effect of advancing religion because although the nurse's availability would be necessary to his getting his education and in this place, the State would not be in any way promoting religion.

It would be making it possible, it is true, for him to have a religious education.

Unknown Speaker: But the nurse would have no role in the communication of the message.

Mr. Bryson: Well, it would have the effect, just as the bus driver... the availability of a bus driver to drive him to school would make it possible for him--

Unknown Speaker: But it is not--

Mr. Bryson: --to receive the message.

Unknown Speaker: --I'm sorry.

But at least in those hypos, the functionary was not inextricably bound up with the communication of the message itself.

Mr. Bryson: Well, I think that the only difference, Your Honor, is that in this case the State employee is actually mouthing words as opposed to performing some other service that's inextricably associated with the receipt of the message.

Take, for example, another hypothetical, a technician on a computer that serves to translate written materials into spoken materials, and there are such computers for someone who's blind.

Well, the technician isn't actually speaking the words.

It's not like a blind reader, but the technician is equally central, essential to the operation of communication.

And we would say that that is perfectly all right under the Establishment Clause.

Thank you.

Unknown Speaker: Thank you, Mr. Bryson.

Mr. Richardson, we'll hear now from you.

Argument of John C. Richardson

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

The constitutional question presented in this case is whether Federal law can require a public school district to hire and place in a parochial school classroom an employee to actively participate in a student's religious education.

The First Amendment answer to this question is no.

In 1970--

Unknown Speaker: --if the money from the school district went directly to the parents to hire a... an interpreter?

Mr. Richardson: --We would not, Your Honor.

Unknown Speaker: Why not?

Mr. Richardson: Because this Court's decision in Witters case has indicated that there's a difference... and we think there is a crucial difference... between a public employee, standing as a public employee in the classroom and in... and conveying religious information to James than if the State on a one-time payment pays his family for a service that he needs because in that case, the person in the classroom conveying religious information is a... is the Zobrest's employee, not the school district.

Unknown Speaker: So, a public... suppose the interpreter, the sign language interpreter, in a public school is paid on a piecework basis and the... and but that same public person is paid by the parents on a piecework basis to go over to the parochial school.

Would that bother you?

Mr. Richardson: I'm not sure I understand the question, but I think the critical distinction is, if I understand the question, is... to me is whether the person in the classroom that's transmitting the religious information is or is not a public employee functioning at public expense.

We think in Witters, this Court carved out an exception that said when the State provides money to a student or his family and then takes a hands-off approach... and that's a second condition that we think would be necessary that is not present in this case also... takes a hands-off approach, other than saying here's what it's for, but after that, you go get the service, if Mr. Witters in the State of Washington is going to go out and receive education to become a pastor, we don't see why Mr. and Mrs. Zobrest could not go out and purchase this--

Unknown Speaker: Well, what about the school district just giving money to the parochial school to hire a sign language interpreter?

Mr. Richardson: --Of course, that's a different scenario between giving money to the school and the parent, but I will address that one.

We don't think we could give money to the school.

We only think we could constitutionally, under Witters, give it to the parent or student.

But there are two reasons why that doesn't happen.

First, the Individuals with Disabilities and Education Act does not permit us to, and second, the petitioners in this case have made it very clear that they are not seeking money.

They are seeking a service.

They have made it unambiguous, but what they want is a public employee standing in that parochial classroom and informing James Zobrest, after hearing it from the teacher, that there's life after death.

That's make a critical distinction.

Unknown Speaker: Mr. Richardson, what is the Arizona program here?

Does it provide interpreters for deaf children in private schools in Arizona?

Is that Arizona's policy?

Mr. Richardson: Across the board?

We don't know because we haven't gotten there.

I am not aware of any situation where a deaf person... a deaf student has been in a private school.

One of the reasons... the way this case arose--

Unknown Speaker: What is... what policy are we looking at then?

Mr. Richardson: --We are looking--

Unknown Speaker: The policy of the school district, this particular school district in Catalina Foothills.

Mr. Richardson: --We're not even looking at a school-wide policy because these things are so... this particular application is so unusual.

The school district... the State policy is to provide generally related services in special education.

It doesn't get defined down to a fine tune, but it is not on a student-by-student basis.

It's just overall.

One of the difficulties in these kind of cases--

Unknown Speaker: But do you... was it conceded below that Arizona and the school district are required to provide an interpreter to a deaf child?

Mr. Richardson: --We think it is not conceded, and we disagree with respondents in this... in the position--

Unknown Speaker: Why wasn't that ever raised or discussed or dealt with?

I don't understand.

Mr. Richardson: --We'll explain why.

We think there are three potential bases why this case could have been decided.

And we, in our summary judgment, rose only the Federal constitutional issues, and that's why the case has come to this point.

We also think there's a statutory argument to be made, and we think there's a State constitutional argument to be made.

Unknown Speaker: But the respondent never made the statutory argument?

Mr. Richardson: We did not yet in the case.

Unknown Speaker: Or the State constitutional argument.

Mr. Richardson: We did not yet because we can choose to bring a motion for summary judgment on a particular issue.

We brought it on one issue.

It did not... and we won on that particular issue.

We stated expressly in our briefs that we think the remaining issues would remain unadjudicated.

Unknown Speaker: Well, counsel, at page 34 of the joint appendix, it recites your opposition to the motion for preliminary injunction.

Mr. Richardson: Yes.

Unknown Speaker: And it says the district admits that the EHA requires it to provide for James, as part of a free, appropriate public education, the services of a sign language interpreter so long as James is educated in a nonparochial setting.

Now, it seems to me that that is a very, very clear concession on your part, and I could point you to two or three similar statements you've made in the answers to the interrogatories and in your brief to the Ninth Circuit on this point.

Mr. Richardson: Okay.

That... well, I agree that... this case was filed on August 1.

In the rush of the preliminary injunction hearing, we made that statement in the opposition, and that statement is legally incorrect.

We do not think we have any judicial estoppel from that legal conclusion.

We think that if the district court thinks so, fine, but we don't think the district court will think so.

There was no argument in this case--

Unknown Speaker: Well, the Ninth Circuit made a finding that... made a finding error, at least proceeded on the explicit assumption that this was your position.

Mr. Richardson: --My--

Unknown Speaker: And it seems to me that you're putting the Ninth Circuit and this Court in a very difficult position by trying now to tell us that the argument is still open.

Mr. Richardson: --I understand that the Ninth Circuit made that statement and that surprised me.

In our brief in the Ninth Circuit, we state expressly on page 6, footnote 3 of that brief that it has never technically been necessary to litigate the statutory issue.

We did admit... and I think is where the Ninth Circuit made its error in that statement.

We did admit and will admit today that James... if James Zobrest had attended a private, nonparochial school, we would have provided it.

There's a difference between would have provided it and would have been required to provide it under the statute.

Unknown Speaker: But you--

Mr. Richardson: We have always admitted that.

Unknown Speaker: --The only reason that you didn't provide it to him was because he was going to a parochial school.

Mr. Richardson: That's correct.

Unknown Speaker: Any other private school, you would have provided it.

Mr. Richardson: We would... we would have provided it, but I think there's a distinction there between would have legally been required to provide it and would have.

Unknown Speaker: But the only reason you did not provide it to him at a private was... at a private parochial school, as opposed to another private school, was your concern about the Establishment Clause.

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

We don't deny that, that we would have voluntarily done that.

The only concern that came up at the time was the Establishment Clause concern, and that's true.

And we're admitting that.

We knew--

Unknown Speaker: Well, isn't it also the case that you have not stipulated or agreed that you are required to provide it in a parochial school?

Mr. Richardson: --That's correct.

The stipulation... once we got past that preliminary injunction hearing, we very carefully stipulated in the stipulation of facts--

Unknown Speaker: Well, even before that.

I mean, you never stipulated at the injunction hearing that you were required to provide it in the parochial setting, did you?

Mr. Richardson: --That's absolutely correct.

There has never been a statement ever made by the respondent school district that we would be legally required.

We would have, but not legally required.

Unknown Speaker: You would have done it.

Mr. Richardson: We would have.

Unknown Speaker: The only reason you didn't do it was because it was--

Mr. Richardson: Yes.

Unknown Speaker: --And had this been a private school, it would have been done.

Mr. Richardson: That's right.

James Zobrest is--

Unknown Speaker: Well, before you go on with that, may I ask you this?

Don't you understand there to be at least a potential difference under the regulations between what you may be provided or, indeed, permitted to do with respect to a child in a parochial school and one who is in a private, but nonreligious school?

Isn't there a potential distinction at least there?

Mr. Richardson: --I think that you can... there's a potential distinction, but I think the bigger distinction is between public and private in general.

I think the United States--

Unknown Speaker: Well, I don't want to put too--

Mr. Richardson: --amicus brief makes very clear--

Unknown Speaker: --Well, I don't want to put too fine a point on it, but I'm looking at the regulation, which is set out on page 45a of the Government's brief, which I assume is applicable here, that no State may use its grant... and I'm skipping inessential language... to pay for religious instruction.

Doesn't that have an effect in distinguishing between church and nonchurch private schools?

Mr. Richardson: --Absolutely, and let's use an example.

Many students under the IDEA have mental disabilities.

They need the services of a one-on-one aid to assist them academically in the classroom.

Now, in many cases, when a student attends a nonparochial school, a private nonparochial school, we may choose to give that aid because all they're going to do is assist the student in a secular education.

But if you take that exact situation and put it in a parochial school, you would have an employee whose job it would be to reinforce educational doctrine.

James Zobrest himself, when he went to junior high school at Catalina Foothills School District, was not only provided with a sign language interpreter, not only provided with speech therapy, but he... but the IEP, which is in the record, states that he was provided academic classroom assistance.

Now, I can think of few situations that would be more counter to the First Amendment than to think of an employee sitting in a parochial classroom not even mechanically signing, but assisting in his required class on religion and the other classes--

Unknown Speaker: Well, now, you said a moment ago that except for the Establishment Clause, you would have been willing to furnish this service.

Mr. Richardson: --Yes.

Unknown Speaker: Apparently you thought that the Federal Government... the act and the regulations would have permitted you to do so.

Mr. Richardson: No, not for this service.

For other services.

We continue to provide him speech therapy services because those are unrelated.

We would not--

Unknown Speaker: Yes, but do you think the regulations under the act would have permitted you to... without any thought of the constitutional issue, do you think the regulations would have permitted you to do this at the parochial school?

Mr. Richardson: --No, because those regulations have what they term the Edgar regulations, that have been discussed in the brief, that prohibit any of these program monies to go for religious instruction.

Unknown Speaker: Why didn't you raise this statutory argument?

Mr. Richardson: Because it was not raised... because that--

Unknown Speaker: Why didn't you raise it?

Mr. Richardson: --Because the reality of dealing with the statute is that you have to look statewide, because it's going to take a long, expensive trial because the answer isn't a simple yes or no like I probably just told you, but it would depend on the number of statewide students in private schools who have disabilities.

The United States has consistently taken the position in these cases that whether a particular private school student is entitled to a particular service requires you to look statewide at all the private school students with disabilities and whether they're generally provided equitable opportunities.

Unknown Speaker: Well, I'm surprised the United States argument here is with the petitioner, and I would have thought they wouldn't be there if they thought that the Federal act would have forbidden you to furnish these services.

Mr. Richardson: Well, they don't because they think Edgar is... these regs are consistent with the First Amendment, and they don't think the First Amendment is violated.

We think the First Amendment is violated, and even if we accept their premise that the Edgar regulations merely restate the First Amendment, we obviously think, since the First Amendment is violated, so is Edgar.

So--

Unknown Speaker: I'm sorry.

May I ask you to clarify one thing for me?

In your response to Justice White, you spoke about the need to make a judgment statewide about the appropriateness of your providing this kind of service in a private school and so on.

Mr. Richardson: --Yes.

Unknown Speaker: Aren't you addressing in that answer a different regulation from the one that I mentioned?

Aren't you addressing the regulation that... I couldn't possibly quote it, but it speaks something about its being equitable to provide these kinds of services in a private school setting?

Mr. Richardson: Yes.

Unknown Speaker: All right.

Now, that... but that's a different regulation from the one that I mentioned.

Mr. Richardson: Yes.

Unknown Speaker: And I presume... and I'm not suggesting that you take a final position on this any more than I would, but I assume that in any argument, based on the statute and the regulations issued under it, you would also have based an argument on the section that I quoted a moment ago, which has nothing to do with statewide practice, does it?

Mr. Richardson: Yes.

We had already been informed, however, that that just mirrors the First Amendment, and so the United States had taken positions before with the Department of Education in letter rulings that those two are coextensive.

So, the Court ends up always looking at the constitutional issue to define that.

Now--

Unknown Speaker: So, basically you wanted to keep the United States off your back, and you realized you were not going to have any trouble with the United States on that issue.

And that's why it was not litigated.

Mr. Richardson: --Yes.

Unknown Speaker: Okay.

Mr. Richardson: I mean, our funds have eventually come... at least 11 and a half percent of them... from the United States, and if we take a distinction... a variance between that statute and the Establishment Clause, we aren't going to be considered in compliance.

Unknown Speaker: Mr. Richardson, if what the State provided for a student was simply a hearing aid so the student could go to the parochial school and hear the instruction, is that prohibited by the First Amendment?

Mr. Richardson: It depends how the hearing aid is provided.

I think the relevant distinction was made in the earlier argument.

If a hearing aid is provided for an individual's general use, I think there is no constitutional concern.

Unknown Speaker: What if it's available only for use in school?

Mr. Richardson: And if we add the fact, under the Individuals with Disabilities Education Act under 34 C.F.R. 76-652, that the State must have continuing administration, control over that property, I think this Court's lessons in Meek and Wolman would say that is not permitted.

Unknown Speaker: You would rely on Meek.

Mr. Richardson: Yes, I would rely on Meek and Wolman, plus the added fact that under this particular statutory scheme, the State for that property... again, it's unlike the money.

They can't just give it to the student and say now it's yours.

They must maintain continuing control over that property.

But we also--

Unknown Speaker: So, if the State just loaned it to the student.

Mr. Richardson: --Well, if they loaned it and could take a hands-off, that would probably provide a different answer, but that's not what's permitted under the IDEA.

Unknown Speaker: Why should there be that sort of difference?

Mr. Richardson: Because--

Unknown Speaker: Now, you're talking about a difference for First Amendment purposes?

If they loan it and don't undertake to repair it, it's okay under the First Amendment, but if they loan it and undertake to maintain it, it's not?

Mr. Richardson: --It's not just the repair, but it's the continuing jurisdiction and control, and maybe simply a loan isn't enough.

Maybe they'd have to completely give it.

But they can give money to a student.

Perhaps they could give the hearing aid too.

It takes the State issue out of it because is it the State's hearing aid in the classroom, or is it James Zobrest's hearing aid?

If it's James Zobrest's hearing aid, I have no concern.

Unknown Speaker: And the First Amendment turns on that sort of fine spun distinction?

Mr. Richardson: Well, look at what we have in Witters.

The State is able to give--

Unknown Speaker: Maybe the answer is yes.

Mr. Richardson: --Yes, it is.

[Laughter]

I mean, the answer is yes because, look, they can give Mr. Witters the money and he can go learn to be a pastor with it, but they couldn't pay the thing to--

Unknown Speaker: Maybe it's time we tried to straighten out some of that.

Mr. Richardson: --That would be fine, but I also think what you have is a situation--

Unknown Speaker: You want to be careful.

[Laughter]

Mr. Richardson: --I also think you have a situation where we think there is a critical distinction between a machine and a human being, and they like to equate it to a hearing aid.

But you're never going to consider a hearing aid part of the educational team.

You look at exhibit A to the Arizona School Boards Association amicus brief.

It's a document entitled Educational Interpreting for Deaf Students: A National Task Force.

The professionals in the area say an interpreter is... should properly be considered part of the educational team working in close cooperation with the school teacher to impart the educational lessons of the teacher.

In this case, those educational lessons are spiritual as well as secular.

You're never going to say that the hearing aid is part of the team.

Unknown Speaker: If somebody had invented a robot that could listen and then give... make these signs, sign language, sort of like simultaneous translations in the U.N., you wouldn't be here I suppose.

Mr. Richardson: Well, no, I think that presents a much more difficult situation than ours, but under Meek v. Wolman, if you... I see no difference between that and a tape recorder.

And also, in Meek v. Wolman--

Unknown Speaker: But it wouldn't be a--

Mr. Richardson: --they only had the potential to be used for--

Unknown Speaker: --It wouldn't be a public employee.

Mr. Richardson: --It would not be a public employee.

That's right.

But either is a tape recorder, and right now the tape recorder is constitutionally prohibited.

And the only distinction that Mr. Ball makes is the massive size.

But I think that's a distinction without a difference.

How can we provide, you know, 1 Bible to a student as opposed to 500?

Where do you draw the line?

How many mechanical devices would we have to give to assist parochial school students in their parochial education before it would become a massive program?

Unknown Speaker: Can the public provide a hall at which a religious ceremony is conducted?

[Laughter]

Mr. Richardson: Absolutely.

Unknown Speaker: Absolutely.

Mr. Richardson: Passive accommodation.

Unknown Speaker: But not the loud speakers.

Mr. Richardson: I think that's still passive accommodation to rent--

Unknown Speaker: Oh, the loud speakers are okay.

Mr. Richardson: --To rent the loud speakers.

Unknown Speaker: But when we get into tape recorders, that's bad.

Mr. Richardson: There's a difference between engaging in a religious activity.

In 1970, what we started out... even before Lemon, this Court said that there are three evils that the First Amendment seeks to prevent: sponsorship, financial support, and active involvement of the sovereign in a religious activity.

I do not believe that merely rental or fair market value is anything more than passive accommodation.

I don't think that's active involvement in the sovereign even if they rent the whole hall.

But I think when you take a public employee, and you ask that public employee to go to work and during that person's job duties to convey to James Zobrest that Jesus Christ was the son of God or that he died to save his sins, I think that's active involvement in a religious activity.

Unknown Speaker: What about a public employee driving James to the school where he's going to learn about God?

Mr. Richardson: I have no problem with that at all.

Unknown Speaker: That's okay, though.

Mr. Richardson: Because that does not involve them in the delivery of the religious message.

We provided James Zobrest speech therapy services throughout his four years at Salpointe, and we had no objection to doing so.

And if that made James Zobrest more successful in his education at Salpointe, so be it.

We don't... we have no problem with providing related services that don't make the public employee become integrally involved in the religious indoctrination that occurs in a parochial school classroom.

We even had an example about someone pushing someone around in a wheel chair.

I think that's a substantially different case.

You just can't make it... the only thing they try to... because the wheelchair pusher is not going to be involved--

Unknown Speaker: Like the bus driver.

Mr. Richardson: --Absolutely.

Those are very different.

But what they try to do is make the distinction that because this person operates mechanically, therefore, per se, he cannot be... he or she can't be involved in a religious activity.

Therefore, that follows.

Well, let's look at another example.

Let's look at an altar boy in church.

An altar boy moves the missal from one side of the altar to the other.

He takes the wine and the water to the priest to assist in preparation of communion.

He lights and put... puts out candle.

Every activity that altar boy undertakes is choreographed in advance.

Every genuflect has been done the same way for 10 years.

The altar boy exercises no discretion at all, but is there any doubt that that person is involved in a religious activity during those activities during Sunday mass?

Of course, not.

The same is true with the interpreter in this case.

There are many, many related services that the school district can give that will not involve the employee in the direct religious indoctrination process.

The school district has no problem with--

Unknown Speaker: What is the objection to the involvement?

That it will be seen as sponsorship by the State?

Mr. Richardson: --Absolutely.

It is not even just sponsorship.

Unknown Speaker: Well, does it depend on the reasonable perception of the reasonable observer?

Mr. Richardson: Yes, but you know, in this... and it does.

But when you look at... it has to be both a subjective... as Justice O'Connor said in her concurring opinion in Lynch, there has to be both a subjective and an objective determination in that regard.

And as this Court's opinion said last term in Lee v. Weisman, it is beyond dispute that at a minimum the Constitution guarantees the Government may not coerce anyone to support or participate in religion or its exercise.

Even the Justices that dissented in Lee v. Weisman stated expressly that they agreed with that proposition.

Unknown Speaker: Mr. Richardson, if that is the problem, if there is some difficulty, symbolic or otherwise, about having a public official in this context, then don't you think maybe the State has some other... some obligation in some other fashion not to impose upon a family with a deaf child a disincentive to go to a religious school?

The child is, in effect, told go to any school you want.

You will have an interpreter.

But if you go to a religious school, no interpreter.

Now, is that consistent with neutrality?

Mr. Richardson: I believe it is in this situation because let's say James needed a tutor to help him academically.

We would say the same thing because if you go to any school other than this... than a parochial school, it would... we don't have to do anything but provide you a secular education.

Unknown Speaker: But you just repeated it.

Why does that make it fair?

I mean--

Mr. Richardson: It makes it fair--

Unknown Speaker: --Tell me why--

Mr. Richardson: --because this Court has always acknowledged a limitation on what we have to do when it transcends the Establishment Clause.

Unknown Speaker: --The only limitation... but you... but there are other ways to get around it.

If that does violate the Establishment Clause, then pay cash money to the parents.

Mr. Richardson: We'd be--

Unknown Speaker: But there should not be a disincentive to the parents to send their child to the parochial school, should it?

Mr. Richardson: --And if Congress wants to amend the statute to permit that option, that would be fine.

Unknown Speaker: No.

I'm saying maybe one option or the other must be given.

Mr. Richardson: We don't have any authority to give another option.

We don't have authority, statutory authority, in Arizona to pay the parents directly, and that... it's like books.

I mean, you know, if he chooses to go to the public school, he gets all his books for free.

He doesn't get all his books for free when he chooses to go to a parochial school.

And certainly you could provide free secular textbooks, but it's still just a disincentive that he'd have to pay for his religious texts.

Unknown Speaker: But that's different.

I mean, that's... you go to the public school or not.

But this is saying even if you don't go the public school, you can go to any other school and get the interpreter, but not to a religious school.

Mr. Richardson: The same way with field trip transportation.

Unknown Speaker: And that's neutrality.

Mr. Richardson: That is neutrality as this Court has defined it because we have the limitation of the Establishment Clause that public employees shouldn't become involved in religious activities.

I mean, if we provide it, if we--

Unknown Speaker: You don't have to get them involved in religious activities.

You could pay for the services.

Mr. Richardson: --Okay.

We cannot pay for the services as the Federal law is established, and all we're saying is in this particular application, under the Individuals with Disabilities Education Act, we can't provide the particular service.

It only allows us to provide the service because it would make us become directly involved in a religious activity or, as we said last term, in the support of religion or its exercise because what is going on in that classroom is the exercise of religion.

And that limitation has always been.

Even the States that said we will give you secular textbooks still didn't give them all the textbooks.

Even the ones that said we'll give you bus transportation still doesn't give parochial students field trip bus transportation because that's--

Unknown Speaker: Do you like that distinction?

Mr. Richardson: --I like the distinction--

Unknown Speaker: That has never struck me as one of the better ones.

[Laughter]

Mr. Richardson: --I like the distinction that public employees cannot be involved in religious activities.

You... you know, if this Court wants to reanalyze whether bus transportation is that, so be it.

Unknown Speaker: --religious activity, busing them to the zoo for a field trip?

Mr. Richardson: I don't believe so.

Unknown Speaker: Yes, I don't think so.

Mr. Richardson: But I think the interpreter's activity of informing James Zobrest whether there's everlasting life is and I think that's the importance in this case.

In summary, the school district has no objection to the fact that Congress requires it under the IDEA to provide public school students special education and related services and even, under some circumstances, to private school students.

We have no objection to the fact that James Zobrest, who's an outstanding young man, chose to attend Salpointe.

We gladly provided him speech therapy services, and you can't use the but for analysis that the Government would.

If that speech therapy allowed him to perform his academic... to do academically better, so be it.

We draw the line in only one place.

When that Federal law... when someone tells us that that Federal law makes us take a public employee and put them in a parochial school classroom to have daily essential involvement in the religious educational process in that classroom, under those circumstances, the governing board members must be able to assure themselves and their taxpaying constituents and their employees that their monies and that their efforts are not being used to religiously indoctrinate a student.

The school board asks nothing more, and the First Amendment commands no less.

Thank you.

Unknown Speaker: Thank you, Mr. Richardson.

Mr. Ball, you have 1 minute remaining.

Rebuttal of William B. Ball

Mr. Ball: Thank you, Your Honor.

I was interested that Mr. Richardson referred to the Arizona School Boards Association brief amicus curiae in connection with his argument that the interpreter will fulfill a teacher's function.

Exhibit... or the first appendix to the Arizona School Boards' brief amicus is the report of the National Task Force on Educational Interpreting, and it says that the interpreter's task in a school is interpreting.

That's his priority.

It goes on to say that the role of the educational interpreter should not include classroom management, that is to say, formal instruction and classroom supervision.

The Court in Meek spoke of teachers and said the teacher remains a teacher.

Well, the interpreter remains an interpreter very, very clearly under the ethical code.

My second point is--

Chief Justice Rehnquist: Thank you, Mr. Ball.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Board of Education of Westside Community Schools v. Mergens - Oral Argument

Fri, 09 Jan 2009 14:49:17 +0000

Case:

Board of Education of Westside Community Schools v. Mergens

Media File:

88-1597_19900109-argument.mp3

Related Transcript:

1989_88_1597_argument.xml

Transcript:

Argument of Allen E. Daubman

Mr. Daubman: This case presents issues central to the operation of co-curricular activities in the public secondary schools in this country.

Of critical importance in that regard, obviously, is the equal access act, which was enacted by Congress in the fall of 1984.

The act basically provides that a school which conducts, or has a limited open forum, may not deny access to that forum on the basis of the political, philosophical or religious content of speech.

In that regard, the Congress defined "limited open forum" to mean when a school district grants an opportunity for one or more noncurriculum-related student groups to meet on school premises during noninstructional time.

It is that statutory framework which causes difficulty in school districts in trying to comply with the act and meet their educational obligations.

The Equal Access Act, as we see it, basically balances three concerns: certainly the free speech rights of students in our public schools; certainly also it balances a concern of nonestablishment of religion; and certainly also it affords deference to school officials, affords them the autonomy and discretion to make educational decisions.

In that context, we urge the Court to interpret the act, interpret noncurriculum-related, as that term is used in the act, to encompass a situation which is not found at Westside High School.

All of the student clubs and organizations at Westside High School were under, by school board policy, the direct control and supervision of the administration and shall have a faculty sponsor.

The record is replete with testimony that the school officials maintained an active role in practice, in determining the goals and objectives of student clubs and organizations and the manner in which those clubs and organizations operated in their school.

Justice O'Connor: Well, Mr. Daubman, is there some provision in the Federal act that at least with regard to clubs covered by the act would limit the participation of the faculty sponsor?

Mr. Daubman: The act basically provides that a school district that has a safe harbor provision, which basically provides that a school district does not have to provide a faculty sponsor, but if it does so in terms of a role of a monitor, that that is permitted under the act.

Justice O'Connor: And it goes further and says the sponsor will act as no more than a custodian, in effect?

Mr. Daubman: Yes.

Justice O'Connor: That the faculty sponsor will not be active?

Mr. Daubman: That is correct.

Justice O'Connor: Do you suppose the act would be applied so as to limit the participation of the sponsor for the scuba class, for example... the Scuba Club?

Mr. Daubman: The sponsor for the Scuba Club, in our particular case there were really... there was a faculty sponsor that was subject to the direction of the administration.

Justice O'Connor: I'm just asking whether the Federal act would apply across the board to all clubs covered by the act, whether they are religious or not?

Mr. Daubman: That's correct.

Justice O'Connor: So that the type of participation you've been describing would not be permitted under the Federal act by the faculty sponsor?

Mr. Daubman: What... the problem presented is that we did not have a forum at the high school and therefore not a forum under the Equal Access Act which provided for custodial sponsors, but rather provided for active participation.

Justice O'Connor: I thought the court below found that you did have a forum.

Mr. Daubman: The district court found otherwise.

The court below reversed that--

Justice O'Connor: Right.

Mr. Daubman: --That's correct.

Justice O'Connor: Right.

Mr. Daubman: And in that regard--

Justice O'Connor: So we're talking about the present situation.

Let me ask you one other question.

Does the school have classes in the regularly offered courses for credit in scuba and in chess?

Mr. Daubman: --No, it does not, Your Honor.

But what our school district does have... what our high school does have is an extensive physical education curriculum, mandated at least in part by state educational guidelines and the school district felt that the Scuba Diving Club, called Subsurfers in our school, was certainly related to that... the regular curriculum offerings, to no lesser extent, other than the degree of participation, than other athletic endeavors that are maintained as co-curricular activities, whether that be organized sports teams or intramural competition... all of those activities.

Justice Stevens: Yes, but am I correct, Mr. Daubman, that even if you had no classes that related to scuba diving or athletics you would still maintain that a Scuba Club would be non... would be... would not make... not convert the school into a limited public forum, wouldn't you?

Mr. Daubman: That's not entirely correct.

The... if there were no physical education classes at the school it would be difficult to say that that was one of the educational objectives of the school, and therefore the Scuba Diving Club related to that.

I don't think that--

Justice Stevens: I thought your test was a little... was one that, if the school could sponsor the activity as a curriculum activity, that it would be all right to have a club, even though it didn't have a class.

For example, supposing you had a French Club, but you had no French classes.

Would you say that would make it a... bring the act into play?

Mr. Daubman: --It would not--

Justice Stevens: Under your view.

I'm not asking you to--

Mr. Daubman: --Under my view, it would not bring the act into play.

Justice Stevens: --And the reasons?

Mr. Daubman: The absence of a French class does not mean the absence of foreign language department.

There are many education--

Justice Stevens: Well, say there's no foreign language department... let me push you... but you still want to have a French class on the theory that it's the kind of activity a school can sponsor without getting into all these sensitive issues?

Mr. Daubman: --If the club's object... goals and objectives were instruction or discourse regarding the French language, then I would agree with you.

If it was to... if the goals and objectives of that club, as developed through the faculty sponsor and the administration, dealt with French culture or French history, then there would be, I think, quite a strong relationship to the European studies programs.

Justice Scalia: Mr. Daubman, one of your clubs involves helping handicapped children.

Wasn't that one of the clubs which you related to your curriculum because you said that it's part of the responsibility... there is no class in that.

It was just a means of teaching community responsibility, as I recall.

Isn't that your justification?

Mr. Daubman: Well, the name of the club, or the activity, is Peer Advocates.

First of all, that was something that was initiated by a teacher as opposed by a student and would therefore fall outside the act.

Justice Scalia: Why is that?

Mr. Daubman: Because the act talks about clubs that are student initiated.

Unknown Speaker: Oh, that's for the club... for a club to be entitled to be admitted under the act, it has to be student initiated, but I don't read the act anywhere as saying that for purposes of the test of the act, of whether you're a limited forum, the club has to be student initiated.

Where does it say that?

Mr. Daubman: It... what it says is that the act provides that student... that it applies to student initiated clubs.

Justice Scalia: No, it says

"a public secondary school has a limited open forum whenever such school grants an offering to or opportunity for one or more noncurriculum-related student groups. "

It does not say student initiated.

It says student initiated later, when it describes the type of club that is entitled to plead the benefit of the act.

That has to be student-initiated, but it seems to me that any act, whether it's... any club, whether it's initiated by the school itself or by a student, triggers the act.

Mr. Daubman: Quite apart from that, with respect to Peer Advocates, the situation presented there... two points: first of all, that was... purposes of the pretrial stipulation, in terms of what clubs were going to be determined to be at issue as to whether they were noncurriculum-related for purposes this... of this lawsuit, was raised for the first time on appeal in the briefs.

It was not something that was tried to the trial court and I don't believe it was even argued in the Eighth Circuit, but discussed for the first time in briefs on appeal here.

Therefore we did not have any opportunity, certainly, at trial or otherwise, to respond to that.

Justice Scalia: Did you make this point in your briefs?

I don't--

Mr. Daubman: Yes, Your Honor.

Justice Scalia: --What about the Chess Club?

What... how is that curriculum related?

That is related to math, as I recall.

Mr. Daubman: Yes, it is, and logical thought processes that are associated with that.

The history of the Chess Club at the high school, as shown by the record in this case, was something that was conducted in the math... before it was a club, was conducted in the math resource room at the urging, and being allowed by the head of the math department because of his feeling that it... those who participated actively in chess became, and continue to be, better math students.

In the math resource room that became disruptive, and for that reason it was relegated to a club situation--

Justice Kennedy: Could teachers at different schools take different positions about whether or not the Chess Club is curriculum related?

Suppose you have two identical schools, two identical chess clubs, but one math teacher says well, I think this is curriculum related and the other says it isn't.

Are we bound by that?

Mr. Daubman: --What we are bound by is the record presented in this case.

In terms of our factual record, that was undisputed.

The testimony--

Justice Kennedy: Well, what I'm asking is, what is the test for a curriculum-related club?

Is it what the faculty thinks, or what this Court thinks?

Mr. Daubman: --Ultimately, it is what this Court thinks, sir.

[Laughter]

But with respect to--

Justice White: Well, I don't know.

This... do you think... what is the standard of review on this issue?

Do you think it's a factual determination?

Mr. Daubman: --I think the... I think it is a factual determination.

Justice White: Well then, if it's a... it has to be clearly erroneous to overturn the district court.

Mr. Daubman: That's correct, Your Honor.

xx Eighth Circuit--

Justice White: Well, that isn't what the Eighth Circuit did.

Didn't even say that.

Mr. Daubman: --That's correct, Your Honor, and we've urged that point.

Justice White: I would think you would be arguing that.

Mr. Daubman: I'm sorry?

Justice White: I would think you would be arguing that.

Mr. Daubman: I am arguing that.

[Laughter]

What we have is the Eighth Circuit--

Justice White: But I'm not... are you sure it's a factual determination that's a--

Mr. Daubman: --What the Equal Access Act provided, quite clearly, is that there was a broad discretion granted to school officials.

The legislative history is... is full of references to that.

Congress did not choose to define what constitutes noncurriculum-related.

To do so would be tantamount to establishing a national definition of curriculum.

Justice White: But if this issue is open to de novo review by the court of appeals, I would suppose they know more about what's curriculum related in Omaha than... is this in Omaha?

Mr. Daubman: Yes, it is.

Justice White: In Omaha than we do.

I would suppose we might just accept what the court of appeals said about this issue.

Mr. Daubman: Well, certainly the district court judge knows more about what's going on and what's curriculum related in Omaha than the Eighth Circuit does.

Justice Kennedy: Well, did he make findings of fact?

Mr. Daubman: At the trial level?

Justice Kennedy: Yes.

Mr. Daubman: Yes, and those were not really discussed in the Eighth Circuit opinion.

The Eighth Circuit basically looked at some references in the legislative history, saw a Chess Club as in one part of the legislative history being characterized by one senator as noncurriculum related--

Justice Kennedy: Did he make findings of fact that all the clubs were curriculum related?

Mr. Daubman: --At the trial level, yes.

Justice Blackmun: This was Judge Beam?

Mr. Daubman: Yes, it was.

Justice Blackmun: Now on the Eighth Circuit?

Mr. Daubman: That is correct.

Chief Justice Rehnquist: You're arguing now, Mr. Daubman, that the high school did not have a limited open forum, is that right?

Mr. Daubman: That's right.

Chief Justice Rehnquist: You... are you asking us to construe the Equal Access Act to reach that conclusion?

Mr. Daubman: That's correct.

What the Equal Access Act does, as I mentioned earlier, is balance those three concerns.

It is very difficult for certainly this Court and much more certainly for school officials to determine on a case-by-case basis how close a relationship one needs for a particular club activity as it relates to one or more particular regular courses that are offered by the school.

What was done in this case, or what our practice had been at Westside High School for several years prior to the passage of the Equal Access Act, was to treat and run the co-curricular student clubs as part of the educational program of the school.

That is to be, I think, very clearly distinguished from the type of club activities which were permitted in Widmar v. Vincent.

Their access to school facilities for purposes of student meetings was allowed, but at no time did the university in that case exercise control over those student clubs and activities.

Our high school setting is much different.

Justice Scalia: I think that the Federal statute prohibits that.

That... that's why I didn't understand your sponsor argument.

You're saying since... since the state requires a faculty sponsor for all these other groups, and since it can't provide the same kind of a faculty sponsor for these groups, perhaps because of establishment reasons, therefore it doesn't have to comply with the act.

But I don't... I think the act overrides your ability to simply say, every student group will have a faculty sponsor.

Where... why do you think you have a right to do that, any more than you have a right to say every student group shall have no more than 30 people?

The act wouldn't permit you to exclude a religious group that has 50 people on the basis that we don't have any student groups with more than 30 people, would it?

Mr. Daubman: What the act does is provides a definitional framework for when you have a limited open forum triggering the applicability of that act, and it is our contention that we did not have a limited open forum under the terms of that act.

Justice Scalia: Why?

Because you had a... because you had sponsors?

Mr. Daubman: Primarily because we had... we did not have noncurriculum-related student groups.

The fact of a faculty sponsor and the control exercised by that sponsor, as well as the supervision of that sponsor and the answering to, by that sponsor, to the administration, I think clearly shows that we did not have a situation where simple access to building premises was allowed, but rather there was active sponsorship and involvement by the school district.

Justice Scalia: That's all it takes to make it faculty related, is that you have a sponsor on the faculty who directs the group, and the group can be engaged in any subject whatever.

I mean, pick whatever you want.

If you think chess is faculty related, I hesitate to suggest something that might not be.

But pick something that you think is and... and put a faculty sponsor in charge of it.

It would then be curriculum related?

Mr. Daubman: What we are urging is that the definition of curriculum-relatedness really goes to the heart of what the school officials have chosen to do with the co-curricular activities.

They have chosen to treat that as part of their curricular offerings of the school, part of the educational program offered by the school.

The Equal Access Act I don't think goes that far.

I don't think it touches that far.

Chief Justice Rehnquist: Well, it would certainly... that would certainly... your construction would certainly enable any school district that felt like it to totally avoid the Equal Access Act.

Mr. Daubman: I think that certainly that risk is present.

You have a situation--

Chief Justice Rehnquist: Well, do you think that's what Congress intended?

Mr. Daubman: --I think Congress intended... I know Congress intended that what ought to be done in terms of the school district's response to the Equal Access Act is to allow school districts in their discretion to make educational decisions as to what academic and co-curricular programs they're going to sponsor.

If a school district were to just blatantly say no, everything we do here is curriculum related, therefore the act doesn't apply, I think our trial courts are well able to see a sham when one exists.

Our trial court in this particular case spent a great deal of time exploring that issue, and there was a great deal of testimony regarding the curricular nature--

Chief Justice Rehnquist: But the Eighth Circuit disagreed with the trial court.

Mr. Daubman: --The Eighth Circuit disagreed with the trial court in interpretation of the Equal Access Act.

It did not have any detail on its opinion as to a discussion of what constitutes curriculum related or not.

Justice White: It didn't define... purport to state a standard for deciding.

Mr. Daubman: It gave no guidance.

Justice White: May I interrupt?

What do you think the test is?

Mr. Daubman: I think the test is--

Justice White: Justice Kennedy asked you awhile ago... I think I... I'm afraid I interrupted before you could really answer him.

Mr. Daubman: --The test, I think... and again, balancing... keeping in mind the three concerns that the Equal Access Act addressed: free speech rights, nonestablishment of religion and school district discretion, the correct, and I think most proper way to interpret the act to satisfy those three concerns, is to determine whether or not the co-curricular activity student clubs, whatever you want to call them, do in fact relate to the curriculum of the high school and the school district officials--

Justice White: In fact.

In fact, so it's--

Mr. Daubman: --In fact, and if school district officials, in doing... in structuring their co-curricular activities in student clubs, treat it truly as co-curricular, treat it truly as part of the educational program that it offers, as the trial court found--

Justice White: --What is truly?

What is truly?

Mr. Daubman: --In fact.

A nonsham.

Not, as suggested earlier--

Justice Stevens: Well, may I ask you a question?

Supposing they have a course in government and that it would be related to government to have a Young Democrats Club or a Young Republicans or a Young Communist Club, would you say that those could be... and membership confined to those who wanted to advocate joining that particular group and supporting its policies, would that be curriculum related?

Mr. Daubman: --One of the other basic educational choices that Westside community schools made, again long prior to the passage of the Equal Access Act--

Justice Stevens: Well, they said they weren't going to do that, I know.

But my question is, suppose they did?

Would that be curriculum related, under your definition?

Mr. Daubman: --Again, we don't... keeping in mind we don't have adversary clubs.

Justice Stevens: Are you suggesting, in other words, that Congress intended to allow that kind of latitude in the clubs and not allow the religious groups to meet?

Mr. Daubman: No.

No.

The clubs... political clubs that you mentioned--

Justice Stevens: Because isn't it true that one of the costs of having a noncurriculum-related club is that you must allow not merely religious groups but political groups?

The Ku Klux Klan, perhaps, and advocacy of free use of drugs and things like that?

Mr. Daubman: --Sure, and it's those adversarial types of clubs--

Justice Stevens: And if you have a Chess Club, the price you pay for that is, you must let all these other groups in?

Mr. Daubman: --Well, if the Chess Club is--

Justice Stevens: If a Chess Club is noncurriculum related?

Mr. Daubman: --That's correct.

Justice Stevens: Yes.

But you would not say that any of the groups in the category that advocate particular points of view are curriculum related, would you, within the meaning of the statute?

Mr. Daubman: It depends on the curriculum or the... what the school district' done.

Justice Stevens: Well, you can put anything on the curriculum, under that view.

Mr. Daubman: Well, and that's what Congress did.

Congress... curriculum for one school district is not the same for another school district.

It's not the same today as it is ten years from now.

Justice Scalia: Mr. Daubman, I... tell me if I'm correct, that I think that you're using the term "curriculum" to mean not just the formal courses that are taught in the school.

Am I correct in that?

Mr. Daubman: That is correct.

Justice Scalia: That you are saying that anything becomes part of the school's curriculum if the school wants to teach it, even if the school wants to teach it only through these extracurricular activities... so-called extracurricular.

I mean, that's sort of a contradiction in terms.

You're saying that the curriculum includes the noncurriculum.

Mr. Daubman: No.

I--

Justice Scalia: Basically.

Mr. Daubman: --Well, I wouldn't phrase it that way, obviously.

Justice Scalia: Well--

[Laughter]

I think most of us who use the term "curriculum" would.

Mr. Daubman: Well, and I think as pointed out in the briefs of the Respondent and the government, the dictionaries do it that way, too, but the testimony at trial, from the students' own expert witness, defines "curriculum" in the same manner that was defined by, or used by our administration, long before passage of the act.

Justice Stevens: Well, in your answer to Justice Stevens you indicated that the Democrat or Republican Club would be noncurriculum related because it's adversarial.

I don't see why that follows.

Mr. Daubman: No.

I'm... that isn't... if I said that, it isn't what I meant.

What... what we have is, if you have a... excuse me... if you have a club system... you know, co-curricular clubs that do have... that are noncurriculum related under the act, then certainly the governmental clubs that was... that were mentioned earlier would fall under the terms of the act, and they would have to be allowed as well.

In our school district we do not have adversarial clubs.

One of the things testified to at trial and, in practice, was in existence again long before the passage of the act is that adversarial clubs that advocate a particular point of view are not allowed in the school.

The school district did not... does not... lend its name to advocating a particular view.

Not that controversial subjects are shied away from, by any means.

It's just that they are dealt with--

Chief Justice Rehnquist: Under your view, Mr. Daubman, supposing that a school, perhaps not Westside, but some similar school, said we're going to have Republican and Democratic Clubs as extensions of the curriculum, as extensions of the civics class.

Now, if that were upheld, that wouldn't give way to any other noncurricular clubs, would it?

Mr. Daubman: --The problem there is, again, that those clubs are expressing a particular point of view.

Chief Justice Rehnquist: But why should that be a limiting factor?

Mr. Daubman: It's a limiting factor in terms of the operation of our club structure is all I'm saying.

Justice Scalia: The statute doesn't require... doesn't permit you to apply that limiting factor.

It says if you have a limited public forum, which it doesn't define as a public forum that admits controversial clubs.

It just says if you have a limited public forum you have to admit all sorts of clubs, including controversial clubs.

Mr. Daubman: That's correct.

Justice Stevens: May I ask you, in your brief I thought you endorsed the test that Congressman Goodling advocated, and he's quoted on page 70 and 71 of your brief.

You seem to have walked away from that.

Or... what is... I don't really understand whether you're still advocating that position or not.

Mr. Daubman: The position being?

Justice Stevens: Well, first there's a subject matter of the meeting of the type which a public school could sponsor.

Now, obviously it couldn't sponsor Republican points of view to the exclusion of other points of view, so that would take them out.

And the second test was... was does the school or school teacher require, or directly encourage, student participation in that activity, and obviously, again, a public school couldn't encourage people to vote Republican.

But that test would take care of this hypothetical, but you seem to have abandoned that.

Whereas, it would take care of things like the Chess Club and stuff that isn't very controversial.

It would draw a line between advocacy groups that would require you to open the door to other points of view and those that are obviously neutral and perfectly proper for a school to sponsor.

But you seem to have abandoned that argument.

Mr. Daubman: I've not abandoned that argument, Your Honor, but that, Representative Goodling's test, if you will, as well as other things suggested in the legislative history--

Justice Stevens: But doesn't that test solve most of these hypotheticals?

Mr. Daubman: --It does.

I'd like to reserve the balance of my time for rebuttal.

Argument of Jay A. Sekulow

Chief Justice Rehnquist: Very well, Mr. Daubman.

Mr. Sekulow?

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

The students of Westside High School who desire to form a student-initiated, student-led and voluntary Bible club do acknowledge that the school officials have important and oftentime delicate functions to perform with regard to the operation of schools under their control.

However, these concerns do not justify the prohibition of these students' Bible club from the Westside High School campus.

At issue at Westside High School, and what is before the court today is whether one or more noncurriculum-related clubs existed, which would then trigger Congress' Equal Access Act.

The Peer Advocates Club, which was discussed at trial, was an admission by the principal himself that that particular club was not related to any of the curriculum activities of Westside High School.

The pretrial stipulation that was discussed by the Petitioners' attorney related to ten clubs that were designated to be discussed.

However, and I think it's important to note that that same stipulation did not state that they would... that the Respondents would in any way not challenge other club activities.

The school officials themselves have set forth, if you will, the way in which to make the determination of whether a particular club is related to the curriculum.

And our test for whether the act would be triggered would be whether there is a direct relationship between the club and a core curriculum course or a curriculum course.

For instance, in defining the clubs, as it has in its... in the Joint Appendix there is a listing of the various student groups and student clubs that meet at Westside High School.

One of the clubs, Distributive Education Club, is listed by the schools as, in fact, an extension of the course in distributive education.

Justice Stevens: May I interrupt you on that?

Mr. Sekulow: Yes, Your Honor.

Justice Stevens: Supposing the school does not teach any physical education courses at all.

Would a football team be required... trigger the act?

Mr. Sekulow: Congress discussed that and in the legislative history addressed that also.

Justice Stevens: I know they said no, but in terms of just looking at the language of the statute, why wouldn't it or would it?

What is your view?

Mr. Sekulow: I think in fact that the existence of the football team with no physical education still could have the... the... the relationship which would not trigger the act because of the... the coaches being involved to the... such a extent, the paid salary of--

Justice Stevens: Supposing you don't have coaches.

You just have a faculty sponsor who referees the games.

Mr. Sekulow: --Oh, I think then in that situation that the act could apply, in fact.

Justice Stevens: The act could or... obviously, it could--

Mr. Sekulow: It would apply, Your Honor.

Justice Stevens: --Yes.

Mr. Sekulow: And the reason that I think Congress in looking at that issue, and what they were looking at is more of the typical situation where the school has the football team and the team's a little bit different than the clubs.

Also, the act does not--

Justice Stevens: I know.

What you're saying is Congress wanted the schools to make the choice between clubs of this character and opening it up to things like sponsoring drugs and Ku Klux Klan and political advocacy and all that.

Mr. Sekulow: --No, we're--

Justice Stevens: Because that's the price, is it not, if you... if you become a public forum.

Mr. Sekulow: --My response to that is this, Your Honor, that Congress wanted to eliminate invidious discrimination against religious and political speech.

Justice Stevens: But is it not true that if you... if you say it's a limited public forum, that's the consequence.

All these other groups must also have access to the school facilities?

Mr. Sekulow: For instance, I would not think that a club for--

Justice Stevens: Is that your view or not?

Mr. Sekulow: --Not with relate to a group that would be advocating drug use and drug abuse.

I would say no.

Justice Stevens: Why not?

Mr. Sekulow: Because that is... Congress addressed that in the act and stated at... under Section D, Number 5 that to sanction meetings that are otherwise unlawful and a group that was promoting the use--

Justice Stevens: No, not the use, just the... advocating change in the law to make it permissible.

Mr. Sekulow: --That would be covered by the act.

That would... that is the price... that's the price of freedom and what... in fact, one of the early cases involving the implementation of the Equal Access Act involved political speech: Student Coalition for Peace.

They wanted to form a group to discuss nuclear freezing, and they were denied access, and they, in fact, utilized the Equal Access Act, and the Third Circuit did, in fact, grant them equal access.

But what the act also does, and as the Petitioners have conceded today, we're not... and I think the act really does protect this... Congress did not ask the schools to surrender control to the facilities.

They did not say, if you will, open the door for the parade of horribles.

For instance, in 1969 this court in the Tinker decision allowed certain expressions of speech to take place on... on the high school campuses, and there's yet to be that real parade of horribles.

Now, Congress was concerned about groups going over the line, if you will, and what I mean by the line, it's advocating illegal activity and things like that.

And Congress was specific, number one, adopted the test that this court enunciated in Tinker in saying that any type of group or organization that would be materially disruptive or interfere with other students' right to learn would, in fact, not have to take place in the school.

Also, going further than what was really addressed in Tinker, and different as well, Congress sought to make sure that school administrators, as the Petitioners in fact have stated, would be entitled to protect the well-being of students under their control.

And I want to state here that the only club that has been denied access based on the content of the speech in this particular case has been the proposed Bible club which was to meet--

Justice White: You don't know... you don't know whether there's been a lot of people that applied who... do you know who's applied?

Mr. Sekulow: --There was statements... and actually that was addressed, Your Honor, in the lower court, and what was discussed there was there was a club that was going to... a soccer club was actually going to be formed, and there was a lack of student interest involved.

And there was a Dungeons and Dragons club proposed which was denied, not based on content, but based on safety concerns that the school administration had with regard to allowing that particular club to exist.

Justice White: Yes, but isn't it also--

--Sounds unsafe.

Mr. Sekulow: Excuse me, Your Honor?

Justice White: Sounds unsafe.

Mr. Sekulow: It does sound unsafe, yes.

[Laughter]

We agree that that could have been an unsafe... an unsafe club.

Justice Stevens: But isn't it also true that the school policy had been rather clear that they would not permit a Young Republican or a Young Democrats club to be formed, so there was... probably nobody would bother to apply.

Mr. Sekulow: Well, Your Honor, that is correct.

However, that's... as Justice Scalia stated, that's specifically what the Equal Access Act and... granted, some of their policies, many of their policies, were before the adoption of the act.

But I would find it very difficult to have... I'm frankly perplexed by a school not allowing a Young Democrat and a Young Republican club to meet on campus.

Justice Stevens: Do you think it would be an impermissible educational decision to say we would rather have none of these groups at all and if we have to abolish all clubs, we'll do that?

Mr. Sekulow: Yes, I do.

I think that's when this Court would have to intervene because if that was--

Justice Stevens: Let me... let me just take it one step further.

Mr. Sekulow: --Yes, sir.

Justice Stevens: The government identifies four clubs that they say make it a limited club.

Supposing after the case is decided and you win and the government's position is upheld, they say well, we'll cancel those four clubs.

Mr. Sekulow: That's exactly what the school board in this particular case has stated they would do.

That if, in fact--

Justice Stevens: Would that be permissible under the act, in your view?

Mr. Sekulow: --They have the right to... there's nothing in the act that prohibits them from closing down the club forum.

There would be constitutional issues implicated at that point, as we've stated in our brief.

One of our concerns is, in fact, that the school board has stated that in the event this court or a court were to determine that under the Equal Access Act a limited open forum were to exist, that they would recommend to the school board that the clubs be cancelled.

Now, does the--

Chief Justice Rehnquist: Do you agree that could be done under the Equal Access Act?

Mr. Sekulow: --Absolutely, Your Honor.

There's no question that the schools have to... do not have to allow any type of extracurricular activity.

We take it a step further, and one of the concerns that we expressed in our brief is that there are other constitutional implications here, but under the act they certainly have that type of discretion to absolutely close down the forum if they so elect.

Yes, Your Honor?

Justice White: You... the... you... you win this case and they close down the club system, and you suggest that they constitutionally could not do that?

Mr. Sekulow: No, Your Honor.

They could close down the club system absolutely.

What they could not--

Justice White: And keep your group off the campus?

Mr. Sekulow: --Keep my group off the campus in this context, Your Honor.

Justice White: But you say there's a constitutional question?

Mr. Sekulow: Yes.

Justice White: What?

Mr. Sekulow: And that is this: The school board, and the testimony at trial stated clearly, and it's... it's really unequivocal that informal meetings on a regular basis, even so far as meeting at lunch on a regular basis with a Bible open and discussing the Bible or these students discussing each other's spiritual concerns that they had or religious concerns that they had or religious viewpoints, if that was done on a regular basis during lunch, not any kind of extracurricular activity period, that they would prohibit that activity.

Chief Justice Rehnquist: Did the school board--

Justice White: --That's a different question.

Chief Justice Rehnquist: Did the school board say... say why they would close down the clubs if this case went against them?

Mr. Sekulow: That they... yes.

Their position is that at Westside High School they desire... the rationale they gave was to present a balanced view, and that allowing this type of speech activity would not present a balanced view.

And therefore... I'm not trying to argue their position, obviously... that they would not have to allow a group that would advocate a position.

However, it's interesting that no particular group, no particular discussions took place with what exactly... prior to the denial, what exactly these students intended to do.

And what they wanted to do was read the Bible, pray and encourage one another with regard to the issues that they're going to face at Westside High School on a daily basis.

For instance, and as the Petitioners stated, the school is... does have controversial discussions on topics ranging from abortion to homosexuality to drug abuse.

But what they've really done is deny these students the right, even outside of the particular club forum here, to meet on a regular basis during lunch to discuss those concerns.

But under--

Chief Justice Rehnquist: Where were these discussions held about, you know, abortion, homosexuality?

Is that in class?

Mr. Sekulow: --Some of them, yes.

Many times they were in class with a teacher present.

However, Planned Parenthood came in for an open module section, and sometimes, as the testimony stated, sometimes the teacher was there and sometimes the teacher wasn't.

And we're not saying that the school has to surrender its control of allowing controversial subjects to be discussed in class.

What we are saying is that these students in nature of 30 other clubs existing at Westside High School, many of which on their face are not related to the curriculum as they... really to take the position that anything that relates to the missions and goals is thereby curriculum related and, therefore, it does not trigger the act really does, as it was pointed out earlier, circumvent exactly what Congress was trying to prohibit.

Justice White: Unrelated.

Mr. Sekulow: Your Honor, my test is simple, and that is, is the particular club directly related to the class and--

Justice White: Well, that just restates... that isn't very illuminating.

You've just... all you've done is put in the word "direct".

Mr. Sekulow: --Your Honor, I think... I'd... I... I would say this.

I do believe it does provide a barrier or a... a... a standard, if you will, because the clubs listed by the school in their listing of student organizations without even dealing with the Equal Access Act had no difficulty deciding which clubs were extensions of the curriculum and those that were not.

In a... for instance, as I stated earlier, the Distributive Education Class is listed as an extension of the distributive education course.

However, the Chess Club is listed as a club for students interested in chess, and the Interact is listed as a club--

Justice White: So, is it just going to be a formal thing because a logic is sort of a... an extension of the mathematics course?

Mr. Sekulow: --I don't think you could take it that--

Justice White: Or logic?

Mr. Sekulow: --Your Honor, I don't think--

Justice White: We teach logic in the school, and the best way... one of the best... one of the... one of the ways of stirring up interest in it is a chess club.

Mr. Sekulow: --Your Honor, number one, in this particular class... club setting in the class function there is no class in logic.

There was a--

Justice White: Mathematics?

Mr. Sekulow: --Thee was a mathematics class, but that... the chess club, for instance, was exactly what Congress was... one of the clubs frequently discussed in reviewing the act, the history of the act, that would trigger the existence of a noncurriculum club, therefore the limited open forum under the act.

Justice Kennedy: Under your test could two math professors at two different schools disagree as to whether or not a chess course was directly related, assuming their textbook is the same?

Mr. Sekulow: I would defer to Congress on that, and I would say that in that particular situation since the chess club did come up fairly frequently in the debates going back and forth, that that would trigger the act.

If we look at one--

Justice Kennedy: I... I'm not sure.

So... so, you're saying that as... as... as a matter of law chess clubs are directly related to the math curriculum?

Mr. Sekulow: --No, they're not.

I would... I know I would not say that they were directly related to the math curriculum.

That's in fact the opposite of what I would say, that the Chess Club is the... one of the main bases upon which in the legislative history that Congress uses the example triggering noncurriculum related at this particular school.

Justice Kennedy: Even if a math professor disagrees with that?

Mr. Sekulow: I would think so because even if the math professor would disagree, I think... I believe that that would still present the same problem, and that is if, in fact, we take a posture... if this Court were to take a posture that anything related to the missions and goals, which is what the district court stated, which the Eighth Circuit rejected entirely, would circumvent the act.

The act would become a nullity really by administrative fiat, if you will.

Yes, sir.

Justice White: The act doesn't list chess clubs or anything like that.

That's just legislative history.

Mr. Sekulow: That's correct, Your Honor, the act does not.

But what the act does show is that... and in fact I think you can even draw an analogy to the directly related test--

Justice White: You still haven't given me much help on... what is your standard?

The only thing you've said so far is that it has to be sort of a direct relationship, and then you look at the legislative history and you're bound by the legislative history.

Mr. Sekulow: --No, Your Honor, absolutely not.

What I'm saying is this, and let me do this by example.

For instance--

Justice Scalia: Justice White doesn't think much of legislative history, Mr. Sekulow.

Mr. Sekulow: --I've heard that.

[Laughter]

There are other members of the Court that don't, as well.

Justice White: I've been reading subversive literature.

Mr. Sekulow: Oh, you have?

[Laughter]

Our position would be, Your Honor, that the best way to take a look at it was one of the examples that the Court addressed to the Petitioners in the... during their argument, and that is, what if there's no French class, but there is a French Club?

Here... especially, no form of French, or any type of foreign activities.

What Congress meant by curriculum related in that context, and why I do use the term, "directly related to curriculum" is, when you have the situation where you've got a French class and a French Club, or Latin class and a Latin Club, but you cannot... I think the line is easy to draw, Your Honor, or not impossible to draw, when you have a situation where the school administrators acknowledge and admit that a pure advocate club exists and they state on the record it does not relate to curriculum.

Justice O'Connor: Well, are you saying that the subject has to be taught in a regular class, in essence?

Mr. Sekulow: Yes, Your Honor, that that would be a part of the school's curriculum, that credit would be given.

I'm not--

Justice O'Connor: If in the math class some time were devoted to teaching chess, then it's curriculum related?

Mr. Sekulow: --Yes.

In that type of situation, I think then you have... that argument could be made.

What we have in this particular case is a whole listing of clubs that do not address the directly related, or even come close to it.

For instance, in addition to the Peer Advocates, which is acknowledged not to be related to curriculum by the principal himself, we have the Interact Club, which is an affiliate of Rotary International, and there isn't a view being espoused there, and that club... the school's only basis to tie that into curriculum related would be in fact whether there was an overall interest in the missions and goals of the particular school--

Justice White: Well, you're... the more you spell this out, the more it sounds like the court of appeals missed the boat.

I don't read anything like that in the court of appeals test.

Mr. Sekulow: --Well, I think that the court of appeals response, Your Honor, was twofold.

Number one, that the definition of noncurriculum related that the district court approved and that the school utilized totally circumvents the act.

Now, there is not a great deal of discussion in the Eighth Circuit's opinion with regard to the various tests.

They did state that there was a Chess Club--

Justice White: No, there isn't any.

There isn't any.

Mr. Sekulow: --Well, they stated that the Chess Club, for instance, was not related to curriculum as well as other clubs, and they did not spell out what those other clubs were.

So that's clear, but as I was saying--

Justice White: Well, suppose we arrive at some... which it sounds like we have to, or might, anyway, some definition of that "curriculum related".

Don't you think we ought to remand to see if the... have the court of appeals apply it, which it never did?

Mr. Sekulow: --No, Your Honor.

I think in the court of appeals' opinion they, in effect, applied more of the directly-related test because of their statements with regard to Chess Club and as it related to the logic situation in the district court.

For instance, the judge... Judge Beam stated that the Logic Club would... be a growth out of the Math Club, but there is no direct tie-in.

The Logic Club, for instance, doesn't even really function in that fashion, and I think what the district court... or the court of appeals was concerned with was the administrative deference that was being paid to the school officials in their interpretation of what, in fact, curriculum related meant.

That the Equal Access Act, if you will, becomes a nullity.

That anything that's related to missions and goals, which was the test that was decided by Judge Beam in the lower court.

And I think the Eighth Circuit specifically, albeit not as detailed as we would like, rejected that proposal by stating that the Chess Club, as well as other curriculum clubs, were in fact not related to curriculum and therefore the Equal Access Act would have applied.

And in the context of this particular forum, with the 30 other clubs there's a... and again, in the joint appendix, if we're looking for the test, the school officials had no trouble in doing... in implementing the test in this context.

Their own listing of clubs does state, for instance, that the Band Club is a part of the curriculum of band.

So these types of delineations are made all the times.

What we're saying is that educators and school officials should be given deference with regard to setting forth what their curriculum is, but if in fact they're going to allow student-initiated clubs, which this club does... the school does, that they, then, if a noncurriculum-related club does exist, they in fact have to open that forum up under the act.

Justice Scalia: Mr. Sekulow, but you would make this exception to your curriculum related... you would consider it to be part of the curriculum if the student... if the school is devoting a substantial amount of its resources specifically to running or directing the club?

For instance, if it doesn't have a music course but has a school band and pays a conductor of the school band?

Mr. Sekulow: Your Honor, I see my time has expired.

May I respond?

Chief Justice Rehnquist: You may answer the question.

Mr. Sekulow: Thank you, Chief Justice.

In that particular situation, I think it would have to go beyond just expending resources.

There would have to be something more where there was instruction going on, or else in fact it would just not be more than, if you will, another club.

That there would have to be something during the curriculum where academic credit was given, supervision of a teacher and these types of things.

Thank you, Your Honor.

Argument of Kenneth W. Starr

Chief Justice Rehnquist: Thank you, Mr. Sekulow.

General Starr, we'll hear now from you.

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

In the view of the United States, careful study of this statute and of the record compiled by the Congress in the course of considering, of vigorously debating and enacting this measure, reveals two overriding concerns or values.

The value of fairness and evenhandedness, of equality, in the treatment of public secondary school students.

And the value of liberty, especially First Amendment the liberties assured to all of our citizens, those who are deeply religious and those who are not.

As one of the co-sponsors of this overwhelmingly bipartisan measure, Senator Leahy of Vermont put it, this bill makes an important statement about ideas.

It says that ideas are sacred to Americans, whether or not they concern religion.

It says that student-initiated religious groups have the same rights to meet on school property during noninstructional time as any other groups.

Justice Stevens: But also these other groups we've talked about also have the same right, like the Ku Klux Klan and so forth?

Mr. Starr: Yes.

Certainly groups cannot be discriminated against on the basis of--

Justice Stevens: And... and Congress was motivated by treating all of them equally with one... one another.

Mr. Starr: --Of treating them equally, subject to--

Justice Stevens: You don't find in the legislative history a predominant interest in the religious groups?

Mr. Starr: --I beg your pardon?

Justice Stevens: You don't find in the legislative history a predominant interest in protecting the religious groups?

Mr. Starr: Oh, I think the primary thrust was to protect religious liberty, because the problem that presented itself to Congress was one of discrimination that was visited on the heads of students who wanted to participate in religious discussion.

It is quite clear, it could not be clearer, that the purpose of this statute was to eliminate discrimination against students who were religious and who wanted to engage in religious discussion voluntarily.

I quite agree with that.

Justice Scalia: And the other groups may have been included, the Ku Klux Klan and... and whatever, because of our establishment clause jurisprudence suggesting that you cannot accommodate religion without accommodating everybody else.

Mr. Starr: The bill was originally drafted so as to provided protection only to religious groups.

There was concern that, by virtue of constitutional interpretations of this Court and other courts, the statute should speak neutrally, to include political, philosophical and other grounds.

I hasten to add, however, that Congress was quite clear with respect to the authority of schools to maintain order and discipline.

Subsection F of Section 4071 was inserted for the very purpose of achieving Tinker kinds of concerns with respect to disruption.

This measure was not only intended to eliminate discrimination, but it was intended to achieve a sensitive balancing, a sensitive balancing of rights, and what was recognized to be a very difficult and sensitive area for the country.

Chief Justice Rehnquist: Mr. Starr, is the authority of Congress in this case derived from its control over funds?

Mr. Starr: I believe its authority derives under the spending powers of Article 1, Section 8, and also by virtue of the statement with respect to any number of members of the House and the Senate, its authority under Section 5 of the Fourteenth Amendment to eliminate discrimination.

Justice Stevens: Well, it can't be the spending power, because there is no... no remedy of the cut off of funds here.

It has to be the latter, I think.

Mr. Starr: Well, however, Justice Stevens, that the Congress saw fit to apply this statute only to schools that receive federal financial assistance, I suppose if we had a Grove City kind, as it were, of public school system that eschewed any federal funds, this would not apply.

Although I would think that under this Court's decisions under section 5 of the Fourteenth Amendment, there might very well be power to reach that school [inaudible].

But Congress saw fit not to exercise the entirety of its power in that respect.

The discussion has been not about Congress' purposes and intentions and motives at all, but rather with respect to the meaning of curriculum related.

There are three reasons why we would urge to the Court not to embrace the school district's open-ended approach.

We believe, first, that its approach is quite inconsistent with the ordinary meaning of the word curriculum.

The word curriculum means the aggregate of courses... courses offered by the institution.

It was that common meaning, secondly, that one most readily discerns in reading the legislative history.

In particular, the description by Senator Hatfield, one of the co-sponsors of the Senate, who described curriculum-related clubs as those that are, in effect, extensions of the classroom.

And by the express admission at trial of the principal of Westside High School, Dr. Findley, Peer Advocates... it was discussed at trial; it was the subject of testimony at trial.

At page 277 of the trial transcript, Dr. Findley stated that Peer Advocates was not related to any course at Westside.

That, in our view, is sufficient to trigger the act.

Third, the school board's approach--

Justice Stevens: Mr.... Mr. Solicitor General, then you say a football team would do it if there's no athletic program?

Mr. Starr: --I don't think Congress contemplated that if we're guided by the legislative history--

Justice Stevens: Yeah, but I mean your reading of the statute, what would that do?

I know Congress didn't think that; that's perfectly clear.

But under your reading of the statute.

Mr. Starr: --I believe that is a matter of considerable confusion.

I would not--

Justice Stevens: I thought you had a bright line test for reading this.

Mr. Starr: --If... if... I were... if I were interpreting this statute, I would say it would not, because, Justice Stevens, it seems to me that it's rather odd to describe the school football team as a student group wishing to conduct a meeting.

That's not--

Unknown Speaker: xxx.

Mr. Starr: --They certainly have meetings--

Justice Stevens: They have an awful lot of meetings to do before they can play.

[Laughter]

Mr. Starr: --But it's not the ordinary way.

Justice Stevens: Why is that different from... why is that different from chess?

Why is that different from chess?

You've got no athletic program, you've got no chess program in your regular class.

Mr. Starr: Oh, if there is no athletic program at all--

Justice Stevens: No formal classes, no curriculum... no athletic curriculum.

And no physical education courses.

No physical education classes.

Justice White: And you don't get credit or anything else.

That's right.

Mr. Starr: --Yes, then it might very well be.

Unknown Speaker: xxx.

Was it might or--

Mr. Starr: It might very well be.

It is--

Justice Stevens: --Is your test, the literal one, the same one, and if you don't have a French class but you have a French club, that triggers the act, too?

Mr. Starr: --It is certainly clear that Congress was focusing on what the course work was.

However, it also was mindful of the fact that there is a history of competitive athletics... and I think it's quite clear in the legislative history that Congress did view the athletic teams as not creating a limited open forum.

Justice Stevens: And... and is that legislative history sufficient, in your view, to overcome the plain language of the act?

Mr. Starr: Oh, I don't think that the plain language, with respect to a student group wishing to conduct a meeting, is crystal clear with respect to the football team.

I think it is clear with respect to the--

Justice Stevens: How about the chess club?

Mr. Starr: --to the history of student activities in the United States.

There is considerable testimony at trial that student activities were in fact student initiated.

I'm not sure that football teams have that same history.

They may.

But the history of student activities is that students coming together in school wanted to pursue areas and activities of interest to the students; administrators were resistant to that.

And ultimately, in the fullness of time, school administrators began permitting students to pursue their interests just as Westside and other high schools across the country have seen fit to do here.

Justice White: Well, I gather if you... you say there has to be some connection with some particular part of the curriculum.

I suppose that would vary then from semester to semester as to whether the French Club was or wasn't within the act, or whether some of these other things would--

Mr. Starr: I don't believe that the course would have to be offered every single semester.

But it would have to relate to course work.

Justice White: --Or every year?

Or every year?

Mr. Starr: It might not even have to be offered every year.

But it does seem to me, in light of Congress' use of the term curriculum and its discussion of any number of groups... the Chess Club, which does exist at Westside was considered the quintessential noncurriculum-related club, even though it obvious--

Justice Stevens: With all due respect, I think the colloquy on the Chess Club was much more ambiguous than you portrayed it, between Senator Gorton and Senator Hatfield.

Mr. Starr: --Quite right.

Justice Stevens, I completely agree.

In fact, Senator Gorton conducted extremely skillful cross examination of Senator Hatfield.

It will be recalled that Senator Gorton thought that the act would be much clearer if you eliminated political and philosophical and made it quite clear that all you were trying to protect were religious groups by virtue of the discrimination that was being visited upon religious students.

I thank the Court.

Rebuttal of Allen E. Daubman

Chief Justice Rehnquist: Thank you, General Starr.

Mr. Daubman, you have four minutes remaining.

Mr. Daubman: The test proposed by the Respondents and by the government is contrary to the act and is educationally unworkable.

To suggest that having students work with the handicapped at school, our regular ed students, so they can learn to be sensitive to the handicapped to characterize that as noncurriculum related, but to say that a football team, even in the absence of a physical education program at the high school is curriculum related creates unworkable and--

Justice Scalia: I assume moral formation is part of your school... what the schools try to teach as well and... and I suppose religious groups are as closely related to moral formation as your... your helping the handicapped club is to sensitivity or whatever you... whatever value you said was being taught by that.

Mr. Daubman: --That's correct.

Justice Scalia: So then if you allowed the one, you should have been allowing the other.

Mr. Daubman: Again, the act isn't triggered unless we have noncurriculum related.

What the school has chosen to do is in structuring their co-curricular activities is those groups that advocate a particular point of view are not included in the curricular or co-curricular activities of the school.

And that was not the case with the club that was requested in this case.

Another example of the unworkability of the test advocated by the other side, Photography Club, which was identified as a suspect club in this case was alternatively taught.

Photography was, as a club or as a class, depending upon the availability of a state-certified teacher who could teach photography.

To suggest that we cannot have... that we create a limited open forum by having a photography club when a state-certified teacher is unavailable to teach it as a regular class I think presents an unworkable problem, a dilemma that school districts would not be able to work with.

Service clubs also indicated by the legislative history to perhaps in some circumstances be noncurriculum related.

In our school district the record is clear that service clubs in many of those... in the sociology class activities with service clubs could constitute... in some cases required over the years, in other cases could be used as extra credit in some of the sociology classes.

Again, to say that a particular type of club is noncurriculum related for all purposes I think really stifles the efforts of educators to deal with curriculum issues as they're constantly being called upon to do, in structuring a program that is relevant and provides educational benefit to its students.

Thank you, Your Honor.

Chief Justice Rehnquist: Thank you, Mr. Daubman.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Edwards v. Aguillard - Oral Argument

Fri, 09 Jan 2009 14:48:29 +0000

Case:

Edwards v. Aguillard

Media File:

85-1513_19861210-argument.mp3

Related Transcript:

1986_85_1513_argument.xml

Transcript:

Argument of Wendell R. Bird

Chief Justice Rehnquist: We will hear arguments first this morning in No. 85-1513, Edwards against Aguillard.

Mr. Bird, you may proceed whenever you're ready.

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

This case is an appeal from an 8-7 decision of the U.S. Court of Appeals for the Fifth Circuit.

It involves a facial Constitutional challenge to Louisiana's law for balanced treatment of creation science and evolution in public schools.

That law defines evolution as scientific evidences supporting evolution, and inferences from those scientific evidences.

In parallel, it defines creation science as scientific evidences supporting creation, and inferences from those scientific evidences.

The State today hopes to address two key questions: first, the procedural question of the material factual issues, and particularly, the uncontroverted affidavits, which must be addressed in order to apply the tripart test, and which preclude summary judgment; and then, second, the Constitutional question, particularly of the abundant evidence in the record of a secular purpose, although not an exclusively secular purpose, we concede.

I'll mention the relevant facts in connection with each of these two major issues.

The first major question is the procedural question which the State believes should be decisive.

The decision under review contradicts the unquestioned procedural rule for summary judgment regarding uncontradicted affidavits and material factual issues, as the seven dissenting judges acknowledged.

The uncontroverted factual issues of the State--

Unknown Speaker: Well, this wasn't really an en banc decision, was it?

Mr. Bird: --No, sir, it wasn't.

It was denial of rehearing en banc.

And in fact, the eight judge majority did not enter a written opinion.

It simply affirmed; in effect, denied rehearing of the three-judge opinion.

Seven judges disagreed very strongly.

The uncontroverted affidavits--

Unknown Speaker: Of course, they just said the case should be reheard en banc.

Mr. Bird: --Yes.

Yes, Your Honor, that's correct.

Unknown Speaker: Disagreers always disagree very strongly.

[Laughter]

Mr. Bird: And in this case, they certainly upheld that tradition.

The uncontroverted affidavits of the State on factual issues erroneously were not taken as true or admitted for purposes of summary judgment and appeal.

The other factual issues raised by the State in its Brandeis memorandum of 630 pages, with nearly 2,000 citations, were not viewed in the most favorable light, like the affidavits, and in fact, were hardly given credence at all.

They certainly weren't accepted as true for purposes of summary judgment.

The facts in regard to this procedural issue are that the State filed affidavits by creationist and evolutionist scientists; by a creationist philosopher; an evolutionist theologian; and a creationist educator.

They were not only Protestants, but two Roman Catholics and one agnostic.

Unknown Speaker: Mr. Bird, what would you say was the factual issue that had to be resolved?

Mr. Bird: Your Honor, the definition of creation science is one very important factual issue, what the statute's about.

Unknown Speaker: You don't think the statute defines the term adequately?

Mr. Bird: Well, Your Honor, it does give a definition that's highly scientific, and referring only to scientific evidences, and inferences from those scientific evidences.

Unknown Speaker: But the factual issue was, what does... what does the statutory term mean, is that what it is?

Mr. Bird: Yes, sir.

A very important factual issue in order--

Unknown Speaker: And these people, who had nothing to do with enacting the statute, are able to tell us what the statute means?

Mr. Bird: --Because it is bringing a term from a technical term into a statute, yes, Your Honor, much like in some of the technical regulatory statutes that might take a term of art from another field without attempting to give a plenary definition in the statute.

And besides the definition, another factual issue is the religious... the nonreligious nature of that scientific evidence supporting creation.

And a third factual issue, the scientific nature of creation science as compared with evolution.

Unknown Speaker: Why is the meaning of the statute a factual issue?

I would think that that's a legal issue.

And indeed, haven't we in earlier cases abstained from passing on the Constitutionality of statutes until the State courts could tell us what their own statute meant?

Isn't the meaning of it ultimately a question of Louisiana law for the Louisiana courts?

Mr. Bird: Your Honor, taking those questions in reverse, the Louisiana Supreme Court has reviewed this statute on different grounds, and has upheld it under applicable provisions of the Louisiana Constitution regarding prescribing curriculum.

It did not see fit to give a definition of creation science, or even to indicate that it regarded that as within its prerogatives.

I'd suggest--

Unknown Speaker: As within its prerogative?

Within whose prerogatives would it be, if not within the prerogatives of the Louisiana Supreme Court?

Mr. Bird: --Because a term that is a technical term, a term used within the scientific field, was being embodied in the statute, the State submits, Your Honor, that the definition of that term is a factual matter, appropriate for resolution by expert testimony on that field, much like if the State had regulated some particular form of, say, asbestos contamination, or whatever, and had used technical terms of art.

It wouldn't be an issue of State law as to what they meant, when the intent was to bring in a technical definition from the relevant academic field.

Unknown Speaker: So if we, as a Federal court, say that the Louisiana statute means X, the Louisiana Supreme Court couldn't say, no, it doesn't mean X, it means Y?

Mr. Bird: Well, Your Honor, I would suggest, in the context of the procedural issue, that this Court should not be saying, the statute means X, but instead, should allow the case to go to trial, a trial it's never had, in order to develop a factual record on that issue.

Unknown Speaker: In order that we can say whether it means X.

I mean, ultimately, you want us to say whether it means X or Y.

And why is that our business rather than the Louisiana courts?

Mr. Bird: Your Honor, with all respect, what we would like you to say is that this Court should not have to say whether it means X or Y, but that a trial, with factual development, ought to occur to enable expert witnesses on both sides to give definitions.

Unknown Speaker: After which... after which a Federal court will say whether it means X or Y.

Isn't that what you're saying?

Mr. Bird: Not quite, Your Honor, because a Federal court--

Unknown Speaker: You're just quarreling that it was done too soon; not that it shouldn't be done by Federal courts.

Mr. Bird: --Your Honor, I'm suggesting--

Unknown Speaker: And I'm questioning whether--

Mr. Bird: --that the only thing a Federal court ought to do is review whether the factual determination by the trial court, after a trial, is clearly erroneous.

This Court, in Lynch v. Donnelly, used the clearly erroneous standard in reviewing district court findings.

And in fact, the dissenting opinion did the same thing in footnote 11, recognizing the heavily factual issue of many issues of that nature.

The role of this Court, the State would suggest, is not to determine, as the two lower courts did, out of thin air, what a technical term means, but to recognize that that is a factual issue, or at least involved factual issues that this Court is entitled to a trial record on before this Court is asked to apply the clearly erroneous standard.

Unknown Speaker: --What if Louisiana chooses to use a technical term in an inaccurate sense?

Can it do that if it wants to?

Mr. Bird: A State certainly could use a term and define it differently.

Unknown Speaker: Of course it could.

And isn't it up to Louisiana State court to say whether it's using a technical term accurately or inaccurately?

It could use that term any way it wants, couldn't it?

Mr. Bird: Your Honor, recognizing the correctness of your point about State interpretations of terms that have a... have a State law background behind them, the term in this statute was a term borrowed from a technical field.

And it's our suggestion that the trier of fact, at the trial court level, can correctly determine the meaning of that term, based on the legislative history and expert testimony, whether that trier of fact is a State court or a Federal court.

Unknown Speaker: Well, Mr. Bird, I understood the opinion of the Fifth Circuit, from which you're appealing, to say that the statute was unconstitutional because it had no secular purpose, and it failed that part of the so-called Lemon test.

Is it really necessary to get into all this meaning of technical terms in order to review that what seems to be a rather narrow ruling of the Fifth Circuit?

Mr. Bird: Well, Your Honor, first, I think it's very important to notice that the Fifth Circuit and the District Court did not rely at all on the legislative history in reaching that determination.

They instead said, effectively by judicial notice we submit, creation science means X.

It means religious doctrine including a creator.

Not based on any factual evidence in the record, but just a priori.

And consequently, those courts were not even applying the purpose prong of the establishment clause test in the way that this Court has indicated it should be applied.

Unknown Speaker: Well, Mr. Bird, if we were to do that here, wouldn't we just look at the legislative history and the stated purpose of the legislature in making that determination?

Why would we have to perpetuate the alleged error you think was made below?

Why couldn't we look at the record here and determine whether the court was correct in its decision on the purpose prong of the Lemon test?

Mr. Bird: Your Honor, that might be possible given two caveats.

The first is that the legislative history does involve technical terms of science, not only terms such as creation science and creation and their meaning, but also terms about mathematical probability, paleontology, and so forth.

This Court could assume that all of the State's allegations are correct on those factual issues, and in that context, could interpret the legislative history, including those terms.

Now, the appellees are also arguing that the social context is relevant to a determination of legislative purpose.

We do disagree with that, particularly where there is a clear legislative history and where there is a clear statute.

However, addressing the social context involves questions of history which similarly are factual issues.

My second caveat is, if this Court were to apply the purpose prong of the tripartite test, ab initio, it again ought to determine all historical, factual type questions in the light most favorable to the State, just as it should the definitional questions.

In that sense, it might be possible for this Court to reach a purpose determination based on a full review of the record.

I'd urge the Court not to do so.

Because certainly for effect and entanglement, the definitions of terms are highly critical.

But if the Court did so, I... I would urge this Court to give the kind of full review of the legislative history I know it would.

We have, for the convenience of the Court, in our reply brief, footnotes 56a to 56c, cited some of the most important portions of the legislative history on the purpose to advance academic freedom, students right to hear, by teaching additional scientific information, a nonreligious information.

It's critical that the legislative history be read in context.

It's also critical that the standard applied by this Court, at all times in the past for purpose review, be applied; that it is not necessary to have an exclusively secular purpose; but instead, it is sufficient to have a secular purpose.

In fact, I think the legislative history in this case indicates a primary secular purpose, although the State does recognize that there are tertiary religious purposes indicated in the record.

We would suggest that the appellees highly selective--

Unknown Speaker: What are those religious that you acknowledge are indicated in the record?

Mr. Bird: --Your Honor, we'd suggest that the legislative history indicates that there were a variety of reasons for this Act being passed.

Unknown Speaker: No, I just asked you what were the religious purposes that are... that you acknowledge are present.

Mr. Bird: As a tertiary purpose only, not as the primary--

Unknown Speaker: I understand.

Mr. Bird: --or even the secondary purpose, we'd recognize that, doubtless, some legislators had a desire to teach religious doctrine in the classroom.

We feel that was a small minority of the legislators, as indicated by the record.

But certainly there's no question that in this mixture of many different purposes that would certainly be a tertiary or less important purpose, along with basic concepts of fairness; the academic freedom concern of students' right to receive--

Unknown Speaker: Do you think there was also a purpose... do you think there was also a purpose to exclude the teaching of evolutionary science, or whatever you might call it?

Mr. Bird: --No, sir, I don't.

It is true that there are--

Unknown Speaker: So to the extent that there's a religious purpose, it's to add to the curriculum, rather than to subtract from it?

Mr. Bird: --Yes, sir.

And if that were the case, I'd suggest that the courts could properly address any... that issue if they... if they saw that issue being a sufficiently significant purpose, simply by stating what the State agrees wholeheartedly with, that the teaching of the Bible, as part of implementing this statute, would be unconstitutional.

The State has consistently taken the position that that, in a science classroom, would not be appropriate under the Constitution or under the statute.

Unknown Speaker: Mr. Bird, do you think that it is Constitutional within the establishment clause to teach a purely religious concept in public school in order to balance other concepts that are perceived to be anti-religious?

Mr. Bird: Your Honor, not in this case, and not in the general case.

Unknown Speaker: Well, in general, I asked.

Mr. Bird: Yes, Your Honor.

Unknown Speaker: In general.

Is that... is that valid?

Mr. Bird: No.

Unknown Speaker: No?

Mr. Bird: Only in the limited context this Court has recognized in Shemp and other decisions of an objective, neutral discussions of a wide variety of religious views.

We don't believe that that is even applicable to this case.

The State has consistently taken the position that to teach religious doctrine would not only violate the establishment clause in science classes, but would violate the terms of the statute.

It's critical, as many of the questions, I believe, reflect, to know what creation science is.

We--

Unknown Speaker: Mr. Bird, before you go further, you acknowledge before that a purpose was... tertiary purpose on the part of some legislators was to teach religious doctrine.

Assuming I think that only a purpose that is effectuated in the statute is relevant, do you acknowledge that that purpose is effectuated in the statute?

Mr. Bird: --Absolutely not.

The statute itself refers to scientific evidence.

The affidavits, established for purposes of this appeal, that creation science consists of scientific evidence and scientific interpretations.

The State's Brandeis memorandum, in fact, cites 170 pages of that scientific evidence in defining creation science and its content.

Unknown Speaker: Does it necessarily require the teaching of a God, a personal God, as opposed to a first cause that may be quite impersonal, or a giant slug, for all we know?

Mr. Bird: Your Honor, teaching creation science does not entail, necessarily, the teaching of any of those concepts.

In other words, with creation science consisting of scientific evidence, such as the abrupt appearance of complex life in the fossil record, the systematic gaps between fossil categories, the mathematical improbability of evolution, the vast information content of all living forms, the genetic limits of viable change... in none of that is there any concept of a creator, and certainly no concept of Genesis.

That is scientific data.

As you'll find summarized in the Joint Appendix from our long memorandum, pages G66 to 168, 356 to 87, 457 to 90.

In fact, the term "creation" is used in much scientific discussion without any reference to a creator.

The Big Bang theory is often described as a theory of creation, without necessarily having any concept of a creator embodied in it.

Unknown Speaker: Well, that may or may not be so.

Mr. Bird: It's a factual issue.

Unknown Speaker: Either a factual issue or an issue of law to be decided by some court.

It depends on what creation in the statute means, doesn't it?

Mr. Bird: Yes, sir, it does.

And it depends on what creation science means; what the scientific evidences mean.

In fact, many of the--

Unknown Speaker: Let me ask you a question there--

--May I interrupt you?

Mr. Bird: --Yes, Your Honor.

Unknown Speaker: Did I understand you to say it would be unconstitutional to have a course in the Louisiana schools or colleges on religion?

Mr. Bird: No, Your Honor, not under the narrow exception this Court has recognized for objective, neutral, discussion of religion.

However, my suggestion was simply that there's no need to bring religion into this subject matter, because--

Unknown Speaker: Right.

But I think it's helpful, at least to me, to know what actually is being done in Louisiana.

Mr. Bird: --Yes sir.

Unknown Speaker: Louisiana State, I looked at the catalogue, as I count has seven courses on religion.

Every other State college or university... do you want to know what the courses are?

Well, I won't take the time--

Mr. Bird: I'll certainly take your word for it.

Unknown Speaker: --They have a course called, Introduction to Religion.

They have a course on the Old Testament.

They have a course on the New Testament.

They have one on faith and doubt.

Jesus in history and tradition.

Eastern religions.

Philosophy of religion.

And so on.

I would guess that most of the universities in the United States have similar courses.

They're all right, aren't they?

Mr. Bird: Your Honor, that's not before the Court in this case--

Unknown Speaker: I understand that.

Mr. Bird: --but certainly, we have no reason to--

Unknown Speaker: But I'm trying to find out what... what your position really is.

Mr. Bird: --My answer to your first question was in the context of elementary and secondary schools.

Unknown Speaker: Yes.

Mr. Bird: And I think this Court has recognized, because of the different maturity level, the different critical thinking level of students at the upper... at the university and college level, that a far broader variety of courses of the type that you've just described would be generally permissible at the university level.

Unknown Speaker: And of course at the university level they also have biology courses--

Mr. Bird: Absolutely.

Unknown Speaker: --that no doubt go into evolution.

Mr. Bird: Absolutely.

Unknown Speaker: Are you saying that all we have before us today is what happens at the public school level?

Mr. Bird: Yes, it is.

Unknown Speaker: What about elementary school?

Mr. Bird: This would include elementary schools to the extent they're teaching anything about origins today.

Unknown Speaker: It's curious, or so it seems to me, that the statute is very explicit in requiring that, with respect to everything that goes on in the classroom, in the textbooks, in the libraries, and in all instructional matters, that this statute has to be complied with.

How in the world can that be monitored?

Mr. Bird: Well, Your Honor, this Court has charged public schools with keeping impermissible religious material out of the classrooms already.

And in terms of that monitoring, first, you mentioned textbooks.

This Court has upheld--

Unknown Speaker: You can monitor a textbook.

Mr. Bird: --Yes, sir.

Board of Education v. Allen, Mueller, and so forth.

This Court, in the Regan decision, made much the same point regarding the classroom teaching, particularly when we're talking about a public school teacher.

We don't have any issue, as in cases from the last term--

Unknown Speaker: Would you have to have monitors in every classroom?

Mr. Bird: --Your Honor, certainly not.

Because this Court does assume the good faith of teachers.

This Court has said that it will not assume bad faith of teachers.

Moreover, any religious material that could impermissibly enter the science classroom, based on the teaching of creation science, already could enter that classroom based on the teaching of evolution.

For instance, the question, who created, or who began, the evolutionary process?

Where did the Big Bang come from?

What guided the evolutionary process?

And it's to be presumed... certainly there's no evidence to the contrary in this case, because we haven't even been to trial yet... that teachers will not do that which is impermissible.

If they do, the Attorney General does have enforcement authority under the Louisiana Constitution, and has stated his intent to ensure that only scientific evidence is taught, as the statute refers to, and not that any impermissible religious material is taught, particularly Genesis, in teaching the balanced treatment.

That would be impermissible.

The definition of creation science is critical.

And even opponents of creation science in some cases have acknowledge that creation science is scientific material; not religious material.

For instance, one of the affidavits establishing the issue for purposes of summary judgment and appeal, said, by Dr. W. Scott Morrow, I'm not a creationist or a religious fundamentalist, and instead, am an evolutionist and an agnostic... our brief at page 19.

My conclusions are that creation science is scientific, nonreligious, and educationally worthwhile.

Unknown Speaker: Mr. Bird, can I ask you, you gave an example a moment ago of a Big Bang theory to mention the evolutionary process.

Supposing there was a Big Bang a million years ago that created much of what we know on the Earth, but... everything except man.

And then after that, there was evolution to what we now know as man.

Would a person who believed that be a evolutionist or a creation scientist?

Mr. Bird: That would really depend on their own categorization.

Because you have identified an issue where there is a difference, even among those scientists--

Unknown Speaker: Well, I mean, it seems to me some people might be a creationist within your definition at a certain point, but then believe that evolution followed that beginning moment.

Mr. Bird: --Yes, sir.

Unknown Speaker: And I'm just wondering how you classify that person.

Mr. Bird: There's certainly no question that some people would take elements of what the statute envisions as creation science and combine those with elements of evolution.

That's their right.

The fact that two--

Unknown Speaker: Do you... do you think there's... they are two mutually exclusive categories?

Or could a person be both?

Mr. Bird: --Your Honor, we cited about 25 noncreationist parties--

Unknown Speaker: Well, I'd rather not refer--

Mr. Bird: --who do view them as mutually exclusive.

Unknown Speaker: --You view them as mutually exclusive?

Mr. Bird: In the views of many people--

Unknown Speaker: Now, can you tell me, then, which category my example falls in?

Mr. Bird: --Well, Your Honor, we have taken the position that the Big Bang theory would be an evolutionary explanation of cosmic evolution, as described by Carl Sagan and others.

Unknown Speaker: Well, can you tell me which theory... which category my example falls under?

Mr. Bird: Probably the evolutionary category, though some people would differ.

Unknown Speaker: Well, what if the... what if I included, say, Neanderthal, and then... but say that it was a lower form of life than present man?

Would it still be... then would that be a creationist or an evolutionist?

Mr. Bird: That would probably be categorized as an evolutionist view, with the creationist scientists at trial anticipating testimony that Neanderthal man certainly existed, but that the physical evidence is that it was simply someone comparable to modern humans with bone disease, causing a bowing of the bones.

Unknown Speaker: All of your examples of people who are creation scientists would deny any evolutionary process at all?

Mr. Bird: No, Your Honor.

Our expert witnesses include, of course, some evolutionists, who would anticipate testifying at trial, along the lines of Dr. Morrow, who I quoted.

Some would take sort of an intermediate position, saying that they're either not sure or--

Unknown Speaker: Well, how can they... if they're mutually exclusive categories, how can there be an intermediate position?

And if there can't be, I really don't quite understand what the dividing line between the two is.

Mr. Bird: --Your Honor, I guess my point, to try to say it more clearly, is that many evolutionists do recognize creation science and evolution as mutually exclusive on each issue, as a logical matter.

Some people disagree.

That's an area where the scientific community does appear to disagree.

Unknown Speaker: Well, but do you have a position?

Do the people supporting this legislation say it draws such a distinction?

Mr. Bird: Yes, Your Honor, we... the State has taken the position consistently that creation science and evolution do reflect two separate positions--

Unknown Speaker: Mutually exclusive positions, and if there's any evolution at all, then you're in the evolutionary category?

Mr. Bird: --Well, if you define evolution as being macroevolutionary change, yes.

But creation scientists recognize the occurrence of change; microevolution, without any question.

So to say that change occurs certainly is not an evolutionary statement.

It's a statement that essentially every scientist on either side would agree to.

The question is whether evolution occurred from one or a few simple single-celled living forms, through fish, amphibia, reptiles, primates, and so forth.

Unknown Speaker: Well, if that's the test, your answer to my question is easy.

The example that I gave is that you're a creationist.

Mr. Bird: Yes, Your Honor, I suppose so.

Unknown Speaker: Even though there's a very definite process of evolution from the Neanderthal man to the present society.

Mr. Bird: And that's an area of disputed fact.

Scientists disagree--

Unknown Speaker: Well, but I mean, even if one believed that, he would still be a creationist under your definition, because he doesn't believe everything started from an amoeba, or something like that.

Mr. Bird: --He'd certainly be taking at least many creationist assumptions and interpretations of the evidence, yes.

Unknown Speaker: Well, see, the difficulty I have is when you talk about many and some is, I'm trying to decide whether they are mutually exclusive categories or not, and whether teachers who have to administer this Act fall in one camp or the other, or could they fall in both.

Mr. Bird: A teacher could certainly fall in both.

The evidence can be categorized without coercing any student to accept only one or the other.

Just as logical matter, the universe either always existed or came into being abruptly, the first life either came into being abruptly or evolved through a chemical evolutionary process.

The various living forms, the basic forms, either appeared abruptly or evolved from simple to complex.

In that sense, they're logical alternatives.

But people certainly have the right, which Louisiana schools ought to respect, to accept elements of both.

Unknown Speaker: Isn't it possible that some of the appeared abruptly, and others evolved from what first appeared abruptly?

That's what I don't understand.

Mr. Bird: I'm afraid I didn't hear the end of that, Your Honor.

Unknown Speaker: I say, is it not possible that some forms of life appeared abruptly, and others evolved from those that did appear abruptly?

Mr. Bird: Absolutely.

And I guess the basic point--

Unknown Speaker: And if that's true, I don't see how you can avoid the possibility that a person could be both an evolutionist and a creation scientist.

Mr. Bird: --Well, many people do combine elements of both, and in that sense, fit your categorization.

I guess the point is that the Louisiana legislature determined that students were not receiving all of the scientific information on the subject.

They were receiving, in general, only that which supported evolution; and that those students were entitled to receive additional scientific information, however those students chose to categorize.

That's the issue in this case, when we get into the Constitutional question.

Unknown Speaker: Mr. Bird?

Mr. Bird: Yes, Your Honor.

Unknown Speaker: May we come to a lower level of discourse, and not talk about philosophy.

[Laughter]

Mr. Bird: I'm sure it won't be lower, but I'll be very happy to--

Unknown Speaker: Well, it'll be a lot lower.

Mr. Bird: --try addressing it.

Unknown Speaker: You have private schools in Louisiana, don't you?

Mr. Bird: Yes, Your Honor.

Unknown Speaker: Some religious and some not?

Mr. Bird: Yes, Your Honor.

Unknown Speaker: Does your State Board of Education have to certify those schools?

Mr. Bird: Your Honor, I'm not... yes, that is correct.

Unknown Speaker: They do in Virginia.

Mr. Bird: Pardon me?

Unknown Speaker: They do in my State of Virginia, and I think in 22 of the States they do.

Mr. Bird: Yes, sir.

Unknown Speaker: And what means is that a minimum course of study is prescribed; otherwise you don't have a certificate, and graduates are unable to get in good colleges.

Mr. Bird: Yes, Your Honor.

Unknown Speaker: What I'm leading up to ask you is, does this statute apply to those schools?

Mr. Bird: No, it does not.

It address only public schools, much like most of the other 16 Louisiana statutes prescribing courses of study.

Unknown Speaker: So if pupils didn't like these course, they could go into private schools or parochial schools?

Mr. Bird: In that, different standards for private schools is something that is widely practiced and certainly is Constitutional justification.

Unknown Speaker: If they could afford to go?

Mr. Bird: If they could afford to, yes, sir.

If there are no further questions, I'll reserve my remaining time.

Argument of Jay Topkis

Chief Justice Rehnquist: Thank you, Mr. Bird.

We'll hear now from you, Mr. Topkis.

Mr. Topkis: Mr. Chief Justice, if the Court please:

Mr. Bird was complaining at some length about how the Court of Appeals ignored the legislative history.

I'm perfectly content to discuss the legislative history, but I'd like to take as my starting point Justice Frankfurter's dictum that when there's some uncertainty about the legislative history, it's not forbidden to look at the plain language of the statute.

[Laughter]

What's all this talk about technical terms?

These are not polysyllabic scientific words beginning with polymicro-something-or-another.

These are words that we've all heard since we were kids.

Creation.

Creation... that's a word we're all familiar with.

Let me just go to the dictionary quickly.

Webster's Third International.

Unknown Speaker: Why don't we go to the affidavits in the case?

Mr. Topkis: I'm sorry, Your Honor?

Unknown Speaker: Why don't we go to the affidavits in the case?

Now, this... this was decided on a motion for summary judgment.

Mr. Topkis: Yes, Your Honor.

Unknown Speaker: There was an affidavit by Dr. Scott Morrow, a Doctor in Biochemistry.

Mr. Topkis: Yes.

Unknown Speaker: Academic credentials.

Which said creation... Ph.D. in biochemistry from the University of North Carolina, M.S., St. Joseph College.

Creation science, he said, is a scientific model or hypothesis that attempts to account for the origins of material entities or systems in our world by means of their relatively sudden or abrupt appearance.

Now, that is really not the way I would be inclined to define it.

But I don't know.

I'm not a biochemist.

Now, here you have an affidavit that's filed in the case that says it means that.

How can I be sure that it doesn't mean that?

And anyway, is it either my view or Dr. Morrow's that ought to govern, but rather the view of the... of the Supreme Court of Louisiana?

Mr. Topkis: Well, Your Honor, this litigation was brought in the Federal court.

And because that's the court to which citizens traditionally look for protection of their Constitutional liberties.

But going directly to your question, Dr. Morrow comes along, years after the statute is enacted, and says that to him, creation science means these buzzwords.

And those buzzwords come right out of Mr. Bird's lexicon.

He's been using them for years.

They're his.

The Louisiana legislature never heard anything about abrupt, relatively sudden, or abrupt appearance in complex form, et cetera, et cetera.

Unknown Speaker: I thought you were talking about the plain language, with resort to legislative history?

Mr. Topkis: I am.

I'm talking about what the word "creation" means, according to Webster.

And that, it seems to me, is what in all likelihood the Louisiana legislature dealt with.

And what the word means, according to Webster, is, the act of bringing into existence, from nothing, the universe or the world or the living and nonliving things in it.

Now, the statute, of course, also uses the term "creationism".

And Webster defines that, too: A doctrine or theory of creation holding that matter, the various forms of life and the world were created by a transcendent God out of nothing.

That's what Webster's Third, published in 1981, the year this statute was adopted, gave as the definitions of these two key words.

Now, maybe that was a little ahead of its time.

Let's go to Webster's Second.

No great difference.

Webster's Second, published in '34, defines "creation": The act of creating or the fact of being created; specifically, the act of causing to exist or the fact of being brought into existence by divine power, or its equivalent.

Creationism--

Unknown Speaker: What about Aristotle's view of a first cause, an unmoved mover?

Mr. Topkis: --Yes, Your Honor.

Unknown Speaker: Would that be a creationist view?

I don't think Aristotle considered himself as theologian as opposed to a philosopher.

Mr. Topkis: No, but--

Unknown Speaker: In fact, he probably considered himself a scientist.

Mr. Topkis: --Acquinas had a somewhat similar view.

Unknown Speaker: Yes, but I want to go back earlier.

[Laughter]

Because my next question is going to be whether you considered Aristotleanism a religion?

Mr. Topkis: Of course not.

Unknown Speaker: Well, then, you could believe in a first cause, an unmoved mover, that may be impersonal, and has no obligation of obedience or veneration from men, and in fact, doesn't care what's happening to mankind.

Mr. Topkis: Right.

Unknown Speaker: And believe in creation.

Mr. Topkis: Well, believe in creation?

Not when creation means creation by a divine creator.

That's the test.

And the Louisiana--

Unknown Speaker: And I ask you, it depends on what you mean by divine.

If all you mean is a first cause, an impersonal mover--

Mr. Topkis: --Divine, Your Honor, has connotations beyond, I respectfully submit.

Unknown Speaker: --But the statute doesn't say "divine".

Mr. Topkis: No.

Unknown Speaker: All it says is "creation".

Mr. Topkis: But when you look to see what "creation" means, it means "divine".

And, I go further, if I may, the Louisiana legislature has been perfectly clear on what words mean in Louisiana.

The Louisiana Civil Code, Article XIV, says that the words of a law are generally to be understood in their most usual significance, without attending so much to the nicety... niceties of grammar rules as to the general and popular use of the words.

Unknown Speaker: Is it the Louisiana legislature that determines what Louisiana statutes mean?

Or is the Louisiana Supreme Court?

Mr. Topkis: It is the Louisiana legislature, Your Honor, which writes statutes, employing the common parlance--

Unknown Speaker: We have a doctrine--

Mr. Topkis: --and which, when courts are called on to interpret those statutes, courts, whether State, Federal or whatever, are obligated to follow and interpret those statutes in the light of the meaning of the Louisiana legislature.

Unknown Speaker: --Mr. Topkis, we have a doctrine called the Pullman doctrine, which is succinctly described as follows: No principle has found more consistent or clear expression than that the Federal courts should not adjudicate the Constitutionality of State enactments fairly open to interpretation until the State courts have been afforded a reasonable opportunity to pass upon them.

Mr. Topkis: Quite so, Your Honor.

I'm familiar with that.

Unknown Speaker: Now, does... do we have any idea what Louisiana courts thinks this phrase, creation, means in this statute?

Mr. Topkis: We have only the very brief decision of the Louisiana Supreme Court to the effect that this statute does not offend the Louisiana Constitution.

That's all we've got.

Unknown Speaker: Mr. Topkis, you're arguing here in support of the Fifth Circuit, not only the judgment but the rationality, I take it, that there is no secular purpose for this statute?

Mr. Topkis: Right, Your Honor.

Unknown Speaker: But I didn't understand the Fifth Circuit to rely as heavily as you apparently do on dictionary definitions of the terms in the statute?

Mr. Topkis: Well, I thought, as I read the Fifth Circuit opinion, that they said, everybody knows what creation and creationism is.

It's a basically fundamentalist point of view.

And I would not think that we would have much uncertainty about it, were it not for the fact that people whose objectives are plain seek to invoke familiar--

Unknown Speaker: Well, I thought part of the Fifth Circuit opinion could be read as saying that if there was... if the statute was passed for religious purposes, say, fairly broadly interpreted like, love thy neighbor as thyself, or something, that the statute might be bad.

You wouldn't go that far, would you?

Mr. Topkis: --That the statute might be...?

Unknown Speaker: That the statute might be unconstitutional as being an establishment of religion.

Mr. Topkis: I would not regard love thy neighbor as thyself as a necessarily religious doctrine.

I would think of it as a proposition in morality.

Unknown Speaker: But supposing it's a morality subscribed to by many religious faiths.

Mr. Topkis: Well, there are lots of propositions that are subscribed to by religious faiths, but they do not become religious, as I understand, merely by virtue of that subscription.

For example, most religions forbid or speak against homicide.

But a civil... pardon me, a criminal statute making homicide criminal is not a religious statute.

Unknown Speaker: Even though, perhaps, a number of church people go down and say, we want this statute passed because it's consistent with our religious belief?

Mr. Topkis: Even though.

Now--

Unknown Speaker: Mr. Topkis, can I ask you a question?

When the case was referred on the State Constitutional issue to the Supreme Court of Louisiana, I believe you were involved in the litigation at that point.

Was the Louisiana Supreme Court asked by either party to interpret the meaning of the definition of creation science?

I know the court did not do it, but--

Mr. Topkis: --I do not believe so, and my colleague assures me that that's his recollection, also.

Unknown Speaker: --So there's no request by either party for abstention to have the State court advise the parties on the meaning?

Mr. Topkis: Neither the parties nor the Fifth Circuit; I don't believe so, Your Honor.

Unknown Speaker: Mr. Topkis--

Mr. Topkis: Justice Scalia.

Unknown Speaker: --this question is sort of like the Chief Justice's last question, but I think it's a little closer to this case.

I'm concerned about whether purpose alone would invalidate a State action, if a State action has a perfectly valid secular purpose.

Let's assume that there is an ancient history professor in a State high school who has been teaching that the Roman Empire did not extent to the southern shore of the Mediterranean in the 1st Century A.D.--

And let's assume a group of Protestants who are concerned about that fact, inasmuch as it makes it seem that the Biblical story of the crucifixion has things a bit wrong... because of that concern, and really, no other reason... I mean, this fellow's also teaching other things that are wrong.

He's teaching that the Parthians came out of Egypt.

They don't care about that.

They do care that Romans were in Jerusalem in the 1st Century A.D. So they go to the principal of the school, and say, this history professor is teaching what is just falsehood.

I mean, everybody knows that Rome was there.

And the principal says, gee, you're right.

And he goes in and directs the teacher to teach that Rome was on the southern short of the Mediterranean in the 1st Century A.D.--

Clearly a religious motivation.

The only reason the people were concerned about that, as opposed to the Parthians, was the fact that it contradicted their religious view.

Now, would it be unconstitutional for the principal to listen to them, and on the basis of that religious motivation, to make the change in the high school?

Mr. Topkis: I wouldn't think so, Your Honor, because the principal wouldn't be acting out of religious motivation.

He would be acting out of the scholar's interest in truth.

And when for whatever reason factual error was called to his attention, he would do his best to correct it.

Unknown Speaker: And here, do we know that the State is acting out of religious motivation?

Mr. Topkis: By every index that we can possibly have, Your Honor, yes.

Unknown Speaker: Which is what?

Mr. Topkis: We take a look at the vocabulary of the statute; it is religious.

We take a look at what the legislators said at the time they acted; it is nothing but religious.

We can go through this entire record without finding anybody talking about a secular purpose.

They talk about how terrible evolution is.

Why?

Because it's godless evolution, and what we got to do is bring God into balance with evolution.

Unknown Speaker: So in the case I gave, if it was the school board that went to the high school principal, and the members of the school board were upset about this, as opposed to Parthia, because of their religious affiliations, then it would be bad, and you would have to leave the teacher in and continue to teach that Rome was not on the southern shore of the Mediterranean.

Mr. Topkis: Well, again, I'm following your hypothetical, and I think that the... are you still assuming that it is the superintendent who makes the decision?

Because I'm responding to you that he makes it out of his quest for truth.

Unknown Speaker: No, he's directed by the school board.

Mr. Topkis: Yes?

He's directed by the school board, and they are motivated... but nonetheless, what they are doing is not teaching religion.

They are teaching history out of a religious motive.

Unknown Speaker: I agree with you there.

And once you say that what they're doing is teaching religion, it's a different ballgame.

If that is motivated by a religious purpose, then I think you're quite right.

But that is an essential part of what you have to establish, though, isn't it?

Not just that a secular action is ultimately motivated by some religious concern?

Mr. Topkis: Quite so.

Quite so.

Unknown Speaker: Okay, I'm with you then.

Mr. Topkis: All right.

Now, I said before that this definition that Mr. Bird is so fond of, and I quote it... origin through abrupt appearance in complex form of biological life, life itself, and the physical universe... one thing we know about that collection of words is that it has never before been seen upon the face of the Earth except in Mr. Bird's briefs, and the affidavits prepared.

Mr. Bird is a little slender to play Tweedledum, but that's what he's trying to do.

He wants words to mean what he says they mean.

And that didn't fool Alice, and I doubt very much that it will fool this Court.

Unknown Speaker: Don't overestimate us.

[Laughter]

Mr. Topkis: Your Honors, I'd like now to go to another of Mr. Bird's buzzwords, academic freedom.

The idea of academic freedom that is advanced here is, again, unlike any previous notion of that term.

It's not a term; it's an incantation, as he uses it.

This statute calls for the very antithesis of academic freedom.

It says that the teacher must give balanced treatment, regardless of whether the evidence is balanced.

It says the teacher may teach evolution only at the price of teaching what he or she knows to be pseudoscience.

And the teacher may teach only the evidences for creation; none against.

I can't imagine anything farther from the idea of academic freedom.

Unknown Speaker: Well, now wait a minute--

--Mr. Topkis, there's very little xxx in elementary schools, do you agree?

Mr. Topkis: Yes and no, if I may, Your Honor.

Yes in the sense that most elementary school teachers are autocrats.

I can remember my own Miss Bremner very well.

And but I think that the teacher is pretty free to teach what the teacher believes to be truth, even in elementary schools.

Unknown Speaker: Isn't it true that in elementary school, the principal goes in and out to make sure what you're teaching?

Mr. Topkis: I... I think that's--

Unknown Speaker: Of course.

Well, that's the opposite of academic freedom?

Mr. Topkis: --Well--

Unknown Speaker: Where you xxx.

Mr. Topkis: --Well, academic freedom is not incompatible with supervision, I think, Mr. Justice Marshall.

Unknown Speaker: Well, let me put it this way: Do you need it for this case?

Mr. Topkis: I don't think I do, no.

Unknown Speaker: I'd like to follow up on that a little bit.

Mr. Topkis: Mr. Justice Powell.

Unknown Speaker: Think about the high school level.

Mr. Topkis: Yes?

Unknown Speaker: In the State of Louisiana, as I think we've mentioned before, the courses are prescribed by the State Board of Education.

Mr. Topkis: Yes, sir.

Unknown Speaker: And teachers are not free, absent permission, to teach different courses.

And the State Board of Education also selects the textbooks.

Mr. Topkis: Quite so.

Unknown Speaker: It may give the local school board a choice between two or three.

I agree with you that once you get into the classroom... and that'll be true under this statute... the teacher is going teach whatever she or he really thinks, despite what may be written in a textbook.

But the point I'm making is, it seems to me your academic freedom argument would be well directed at the college level.

But I question, really, whether it's relevant, particularly, as Justice Marshall indicates, at the public school level.

Mr. Topkis: I see it's relevance, if I may, Mr. Justice Powell, only in the sense that this statute is defended as advancing academic freedom.

And it seems to me that when you give explicit commands... teach equally, teach for... you are not talking about academic freedom.

That's the entirety of my contention on the point.

Unknown Speaker: Perhaps it would be irrelevant to both arguments, both sides?

Mr. Topkis: Could be.

Unknown Speaker: What if you had a statute, Mr. Topkis, that said, we think an awful lot of teachers in the school system in this State have presented only the Protestant view of the Reformation in their medieval history classes, and so we want to give equal time to the Catholic view?

Do you think that that would... suppose it was passed with a purely... interest in historical truth... do you think that would raise any problems?

Perhaps even though a lot of Protestant religious people got behind it, or a lot of Catholic religious people got behind it?

Mr. Topkis: So long as the purpose of the school authorities, in taking this position, was an historical purpose rather than a religious one, I couldn't quarrel with it.

Unknown Speaker: It certainly wouldn't vindicate academic freedom, in the normal sense.

Mr. Topkis: No.

No, it wouldn't vindicate academic freedom.

But on the other hand, I would think that only... no, pardon me.

I would think that it would be a requisite of a teacher who professed to be indulging in or utilizing his academic freedom to give fair treatment to the history of both... I forget Your Honor's example... the Reformation and the Counter-Reformation, or whatever.

To pull somebody up who is, out of his own personal prejudices... or views; I'll not use the perjorative... overstressing one side of a controversy, or one aspect of history, is not to deprive him of academic freedom.

Academic freedom does not mean the right to teach exclusively one particular view, as I see it, at any rate.

I take it... I had planned to discuss the legislative history of this statute a little bit, but I rather imagine that my time is running on.

I think that I'll just rest with this statement.

There is nothing in the legislative history which speaks of a secular purpose: No sponsor of the legislature... of the legislation; no witness; nobody.

The one witness I love is a Ms. Pabbs Minhinit, who said: I think if you teach children that they are evolved from apes, then they will start acting like apes.

If we teach them possibly that they were created by an Almighty God, then they will believe that they were a creature of God and start acting like one of God's children.

That's what she told the Senate before the Senate voted.

Now, I don't, of course, take issue--

Unknown Speaker: Mr. Topkis, let me just be sure:

Is there nothing in the legislative history supporting the... this academic freedom argument?

Mr. Topkis: --Oh, sure, Your Honor.

Academic freedom.

We got to give God equal time.

That's their idea of academic freedom.

Unknown Speaker: Well, or at least there is something in the legislative history that some were motivated by a desire to counteract the evolutionary subject with teaching of another subject that would have a different message.

Mr. Topkis: But not, Your Honor... academic freedom does not--

Unknown Speaker: I mean, you say that's not academic freedom.

Mr. Topkis: --That's right.

Unknown Speaker: And maybe you're right.

But at least when they make that argument, there is something in the history that provides a basis for it.

That's what I'm asking you.

Mr. Topkis: Yes, and what they want to do is see to it that their version of religion... they start with the premise that evolution is religious.

It's secular humanism.

It's godless.

And what they want to do is counter this religion... and they repeatedly call evolution a religion... and they say, let's give equal time to the other religion.

Well, that's not academic freedom.

Now--

Unknown Speaker: Mr. Topkis.

Mr. Topkis: --Justice Scalia.

Unknown Speaker: In your legislative history, and you know, I've read it, there are statements of the sort you... you quoted, including some by the sponsor of this, especially the first time around, the bill that was in a different form and didn't get passed.

But isn't what counts what the intent of the entire legislature was?

And I just... it never occurred to me that Louisiana was a State dominated by... religiously by fundamentalists.

And I think the statistics bear that out.

As far as I know, the Catholics and atheists alone... or acnostics alone... account for 56 percent of the population.

Never mind some other religious groups that are not necessarily fundamentalists.

Now, it was, after all, the entire legislature that passed the bill.

Mr. Topkis: Right.

Unknown Speaker: Now maybe the motive of those who introduced it and were most zealous for it may have been a fundamentalist Christian motive, but can we be sure that that was the motive of the entire legislature of Louisiana in passing the bill?

Mr. Topkis: Well, Your Honor, when we try to figure out what the legislature meant, we look first at its plain words; then at the words of the sponsors and so on; and then we listen, or we look, for anything else.

There isn't a single word in this history of secular interest.

Mr. Bird and we, at an earlier stage, in a parallel litigation, the record of which is part of this record, took 40 depositions; there's not a word in those depositions, Mr. Bird hasn't brought one forward, about secular purpose.

Unknown Speaker: xxx balance secular purpose.

Now, what they're saying is--

True.

--most of the imbalance complained of is complained of on religious grounds.

But isn't righting what the State legislature considered an imbalance in instruction a secular purpose; that only one side of an issue is being presented?

Mr. Topkis: Not, Your Honor, with respect, when the complaint is, they're teaching that religion.

Why don't they teach my religion?

And that's what the legislature said.

And that's what the witnesses said.

Over and over again.

There's nobody coming forward and taking any other position.

Now, this bill was of course drafted by a theologian, or somebody versed in apologetics.

There's an amusing bit of evidence on that subject in the very language of the bill.

The bill keeps using... the Act keeps using the term "evidences" in the plural.

We lawyers never speak of "evidences" in the plural.

We speak of "evidence", the singular.

And I got nagged by it, and I looked it up the other day.

And of course the only dictionary reference to "evidences" is to Christian apologetics: the evidences for Christianity.

This is a matter of theological disputation.

And going back if I may, Mr. Justice Scalia, there wasn't offered here any affidavit from Senator Keith, or any other legislator, about what their purpose was.

They were apparently content, or stuck, with their record.

Now, again, where does this come from?

Let me note one unusual fact about one of those five affidavits that Mr. Bird came up with.

He offers an affidavit by a Dr. Terry Meith, who tells us that he's a philosopher and a theologian, and that he possesses three graduate degrees, two doctorates and a Master's.

He even tells us what grade point averages he got at two of the schools.

He got a 3.94 at one school, and a 3.97 at another school.

I've never seen an expert qualified precisely that way.

They usually settle for saying, I was Phi Beta Kappa.

But okay, he says 3.94 and 3.97 at two schools.

He omits USC.

Well, I don't attribute any significance to that.

USC I have heard is a rather difficult school, and may be he didn't do so well there.

I'm not going to fault him for that.

But the omission I do find significant is in his employment record.

He signed the affidavit in September 1984.

And he does not state where he was then employed.

All of the other affidavits that Mr. Bird submits do give that information.

And we found the explanation yesterday.

The affidavit's jurat reads: Lynchburg, Virginia.

And just on a hunch, my colleague, Mr. Harper, called Liberty University where Reverend Jerry Falwell is the Chancellor.

And wouldn't you know it, we got right through to Dr. Meith.

He's been on that faculty since 1984.

And apparently, was not very interested in this case, which deals so much with fundamentalist, with acknowledging where he was employed.

I--

Unknown Speaker: Some of the experts who provided affidavits were agnostics, at least one of them.

Mr. Topkis: --One of them so stated, yes, Your Honor.

Unknown Speaker: Said he was an agnostic.

Is there any difference in your mind between purpose of the law and motivation of those who want to get the law enacted?

I mean, in the example I gave you earlier where the school board directs a change in the ancient history instruction motivated by the fact that this particular error is inconsistent with their religious beliefs, although teaching it right doesn't necessarily make their religious beliefs any more credible, would you say that there they had an evil purpose, that the purpose of the change was a religious one?

Mr. Topkis: I'm not sure I follow your question.

I'm sorry, Your Honor.

Unknown Speaker: Well, the school board is moved to correct the instructor whose teaching the wrong thing about Rome--

Mr. Topkis: Right.

Unknown Speaker: --by the fact that it's inconsistent with their religious beliefs.

Mr. Topkis: Right.

Unknown Speaker: And it makes their religious look absurd.

Not that it makes their religious beliefs believable if you teach the right thing about Rome.

Mr. Topkis: Right.

Unknown Speaker: Okay, so that's the reason they're concerned about it.

Mr. Topkis: Yes?

Unknown Speaker: Now, would you say that there purpose is to further their religion, or is their purpose of get the curriculum right and get the correct thing taught about--

Mr. Topkis: I don't care about their purpose; as long as what they do is get the true historical facts taught, I'm not going to be terribly concerned.

Unknown Speaker: --Okay.

So it does come back to whether this statute requires the teaching of creation in some divine sense.

Mr. Topkis: Exactly, exactly.

Now--

Unknown Speaker: Mr. Topkis, I just want to ask one quick question.

Mr. Topkis: --Justice Powell.

Unknown Speaker: Would you view the teaching of religious courses at the college level... state colleges, state universities... differently from the position that you take here today?

Mr. Topkis: I shouldn't think so, no, Your Honor.

Unknown Speaker: In other words, you would think a Constitutional question were raised if a university taught a course on the Bible?

Mr. Topkis: No, not a bit.

Unknown Speaker: What do you think?

Mr. Topkis: I studied the Bible... well, I didn't go to a State university.

But of course there's nothing inappropriate about teaching the Bible, or teaching Spincza's demonstration of the existence of God by mathematical principles.

Unknown Speaker: 0 xxx.

Mr. Topkis: I'm sorry?

Unknown Speaker: I didn't understand you.

Mr. Topkis: I don't see anything--

Unknown Speaker: Is it appropriate for a State university to teach Biblical courses, to teach a course on the Bible?

Mr. Topkis: --Absolutely, as long as it is taught in neutral fashion; as long as the State does not say, as long as no professor comes into class, and announces: Ladies and gentlemen, today I'm going to prove to you that the Bible is right.

Unknown Speaker: If... if the university has courses in biology and chemistry and teaches specifically courses in evolution, would you object to courses on the Bible?

Mr. Topkis: I would... I have no objection to courses on the Bible.

When they are taught from a pro-Bible perspective, I would think that Constitutionally they ought to be left to Notre Dame, Southern Methodist, and other institutions of proclaimed orientation.

Unknown Speaker: But not in public universities?

Mr. Topkis: Not in public universities; no, Your Honor.

Chief Justice Rehnquist: Thank you, Mr. Topkis.

Mr. Topkis: Thank you very much, Mr. Chief Justice.

Rebuttal of Wendell R. Bird

Chief Justice Rehnquist: Mr. Bird, do you have any more?

You have two minutes remaining.

Mr. Bird: Thank you, Your Honor.

The procedural issue, the State submits, should be decisive in this case.

And Mr. Topkis has done a very nice job of demonstrating the factual disputes between the parties, disputes that ought to be decided on the basis of evidence at a trial.

It would simply subvert the purposes of the summary judgment rules to allow a court to take a leap of faith over the issue at hand to apply the tripartite test to an unknown subject.

If this Court chooses to rely on Constitutional grounds, however, there's a great deal of argument in support of the State's position that, we submit, should lead to a favorable conclusion: not only the Engel line of cases; not only the historical evidence; but the tripartite test itself shows the Constitutionality of this statute.

The purpose was stated as to advance academic freedom.

Unknown Speaker: May I ask about--

Mr. Bird: Yes, Your Honor.

Unknown Speaker: --academic freedom for a moment?

Would you say it would advance academic freedom if the school was told you cannot teach a German... a student the German language unless he's also willing to study French?

Mr. Bird: If they were within the same subject area, such as conversational German versus formal German--

Unknown Speaker: No, no, just German... they didn't particularly like Germans and they do like French.

So what they say to the student is, you can't study German unless you study French.

Would that advance academic freedom?

Mr. Bird: --Well, of course, that's not the wording of this statute.

Unknown Speaker: Well, it's pretty close.

Mr. Bird: It is a balanced treatment statute.

But--

Unknown Speaker: You can't teach evolution unless you teach this other subject.

Mr. Bird: --Your Honor, if the assumption of the legislature there, as here, was that most or nearly all teachers would opt for teaching both--

Unknown Speaker: I'm just asking, would it advance academic freedom?

Mr. Bird: --Yes, it would.

Unknown Speaker: They'd come in and say, we did it to advance academic freedom.

Would you accept that rationale?

Mr. Bird: Yes, it would, if you recognize that a legislature may not use the terms "academic freedom" in the correct legal sense.

They might have in mind, instead, a basic concept of fairness; teaching all of the evidence.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Bird.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Witters v. Wash. Dept. Of Services For Blind - Oral Argument

Fri, 09 Jan 2009 14:48:31 +0000

Case:

Witters v. Wash. Dept. Of Services For Blind

Media File:

84-1070_19851106-argument.mp3

Related Transcript:

1985_84_1070_argument.xml

Transcript:

ORAL ARGUMENT OF MICHAEL P. FARRIS, ESQ. ON BEHALF OF THE PETITIONER

Chief Justice Burger: We will hear arguments first this morning in Witters against the Washington Department of Services for the Blind.

Mr. Farris, you may proceed whenever you are ready.

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

This morning the Court has before it a Religion Clause case involving a vocational rehabilitation program for the blind.

It is important to note that it is a neutral program and that it is broadly available to all blind citizens of the State of Washington.

This is not an occasion where the State of Washington's legislature has attempted to subterfuge the decisions of this Court and go around and find a clever way to get state aid through religious schools.

Nor is this case where it can be claimed that it is not really aid to individuals, but is a transparent fiction of aid to religious schools.

Unidentified Justice: Mr. Farris, before you proceed, has Mr. Witters completed his training for the ministry?

Mr. Farris: No, Your Honor, he was required to drop out because of lack of financial ability.

Unidentified Justice: I see.

Well, was he an undergraduate or a graduate student?

Mr. Farris: He was in Bible School which was leading to a B.A. Degree, which was an undergraduate program, which would have qualified him by itself for certain ministerial positions.

Unidentified Justice: I take it if he were eligible he would pursue his education for the ministry under this State of Washington program?

Mr. Farris: That is correct, Your Honor.

It is his desire to return to the program and to finish his education.

Unidentified Justice: Is he pursuing some other educational degree at the moment?

Mr. Farris: No, Your Honor, he is washing dishes in a medical laboratory.

It is our position in this case that there is no justification under the Establishment Clause to single out ministerial students for exclusion from participation in a broad government program.

We would also argue that the Free Exercise Clause indeed forbids such exclusion.

The guiding principle that this Court has used in its Religion Clause cases is the principle of religious neutrality and we think that the government does not have to discriminate against religious persons in order to prove how neutral it is.

Ministerial students do not have to be quarantined from the access to public benefits nor to demonstrate that the church is committed to a course of religious... or the state is committed to a course of religious neutrality.

On the first half of our argument, we will deal with the Establishment Clause and we must deal both with the position of the State Supreme Court and the State Department for the Blind, because the state... Department, although they support the result below, they have switched positions and now have abandoned the reasoning below and are making a new line of argument.

First, we will deal with the State Supreme Court.

That Court held that flatly the government may never fund the training of ministers.

Now, the problem with this is, of course, that it endangers not only this federal program but the G.I. Bill, Social Security recipients who use their benefits to train for the ministry, and programs like the Federally Insured Student Loan Program.

Unidentified Justice: How does the Social Security... Would you explain that?

How does that get in the picture?

Mr. Farris: If a person's father, for example, passes away while they are going to college, they would be eligible for certain dependent's benefits under the Social Security program which they could use for various forms of training, including ministerial training among others.

Unidentified Justice: They could use it to start a filling station too if they wanted, couldn't they?

There is no limit on what they could do.

Mr. Farris: The benefits that I was referring to were educational benefits that you are entitled to as a student under certain Social Security programs.

The position of the State Supreme Court, we contend, is not in accordance with this Court's rulings.

This Court has never struck down a neutral program that is broadly available to all citizens.

This Court has indeed said that such a program is not readily subject to an Establishment Clause challenge.

The State Supreme Court held that the primary effect of the aid to Witters was to advance religion.

Now, the error in this analysis is that they looked solely at Witters, rather than looking at the primary effect of the entire program.

It is our contention that the proper judge of the primary effect prong of the Court's tripartite test under Lemon versus Kurtzman... They should have looked at the entire program, not simply the aid of Witters.

Unidentified Justice: Mr. Farris, do you concede that the State of Washington could, if they chose, have a vocational rehabilitation program which expressly excludes any educational funding for the ministry?

Mr. Farris: We would concede, Your Honor, that this would be a much more difficult case here.

We would think that--

Unidentified Justice: Well, do you think it would be valid under the Establishment Clause for the state to have such an express provision?

Mr. Farris: --It would be valid under the Establishment Clause.

The problem would be with the Free Exercise Clause.

Unidentified Justice: Would it be valid under the Free Exercise Clause?

Mr. Farris: I don't believe that it would under this Court's holdings in Sherbert and Thomas.

I think that such an express exclusion for religious persons only would run counter to that, but that is a more difficult case to--

Unidentified Justice: So, it is your position that if the state wants to fund educational aid for students, it must include educational aid for religious students of study.

Mr. Farris: --I think there is a difference between educational aid perhaps and vocational rehabilitation which is career training.

This is job placement kind of aid and under the State of Washington's law, this comes under the Public Assistance Code, not the Education Code.

And, this Court's ruling--

Unidentified Justice: Should it matter what code the legislature enacts it under for a constitutional inquiry?

Mr. Farris: --It shouldn't, but this Court's decisions seem to have treated various sections differently.

Sherbert and Thomas stand as examples of public assistance benefits which have overturned exclusions based on religion.

Unidentified Justice: It just seems to me that your argument would lead inevitably to conclude that a state could not withhold funding for religious education at any level and in any program.

Mr. Farris: I don't think that we are required to go that far, Your Honor.

That, perhaps, is our position.

But, this Court's position, as it has said many times, to draw lines and we think that there is no occasion to say that the line should be drawn on the other side of this case to exclude Mr. Witters from participation.

We would--

Unidentified Justice: Has this Court ever funded religious education before?

Mr. Farris: --No, this Court does not appropriate funds.

That is the job of the legislature.

Unidentified Justice: Well, I don't mean that, of course, obviously.

Has it ever approved the funding of religious education in any decided case heretofore?

Mr. Farris: Yes, Your Honor, it has.

In the case of Everson versus the Board this Court held that the education in that case was pervasively religious and it was the central mission of the Catholic church in that case in particular to religiously educate their children.

That is religious education.

And, this Court permitted an indirect benefit to that education in the form of transportation benefits.

In many other cases, the aid to religion cases that this Court have held have often times involved institutions that admittedly were giving religious education in.

Various forms of indirect state aid of those religious institutions have been permitted by this Court in a number of instances.

Unidentified Justice: Mr. Farris, does Mr. Witters urge that his religious beliefs and practices require him to study theology?

Mr. Farris: Your Honor, his position is that he feels a religious call to the ministry, much as Reverend McDaniel did in the case of McDaniel versus Paty, and that is a personal religious call, it is not something the belief system per se requires.

It is more of a private direction between him and God as he perceives it.

Unidentified Justice: What about veterans' benefits after the various wars we have been in?

Are there any limitations placed by Congress on what studies the veterans could pursue?

Mr. Farris: No.

All parties in this case, including Respondent and the Solicitor General's office, concede that the G.I. Bill has been used for decades to allow persons to train for the ministry, including a number of seminaries and rabbinical schools that are eligible currently for the use of such G.I. benefits.

It is our argument today that this case is constitutionally indistinguishable from such a program.

Now, the state, Department for the Blind's position, their new position that they have switched from, is based, first of all, on arguments that are outside the record and facts that are outside the record.

They, among other things, are attacking for the first time in this Court the constitutionality of the entire federal program, although that issue was never raised in any court below and neither was the fact to give some potential relevancy to this federal program introduced below and that is this is the federal program in question.

There is no factual proof of that and counsel for the Petitioner has no knowledge of whether that is true or not.

In any event, these new arguments and these new facts are very easily answered.

The federal statutes and regulations in question require the state, according to their argument, to evaluate, to counsel, and to approve the program of the blind individual who comes into participation in the vocational rehabilitation scheme.

This can be done, we would contend, objectively.

In fact, the statutes and the regulations in contest require objectivity.

29 U.S.C. Section 722(b)(4) that is in the Appendix of the Respondent's brief, requires objective criteria in an evaluation procedure.

And 34 Code of Federal Regulations, 361.33(b) lists those objective criteria such as educational achievement and work experience.

There is nothing in this record before this Court to give rise to any basis for speculating as to the way the actual program works under the federal guidelines; that there is some violation under the imprimatur test or the excessive entanglement test.

They simply would be speculation on the part of Respondent that would even get us into these questions and there is nothing in the record to support such speculation.

As we have argued in our reply brief, we think the perfect analogy to this situation is a building inspector who is required to approve a church's building plans.

Now, that building inspector must evaluate the plans, sometimes must counsel the church's architect or church's builder or carpenters on the appropriateness of their plan, the placement of the pews, the placement of the baptistry, the location of the altar, perhaps for safety reasons, and they must ultimately approve those church building plans.

We contend that that is the same kind of situation that is at hand today.

Both situations are hands-on in the analogy or the criteria that is advanced by the state in this case.

They have said hands-on funding of ministerial programs are unconstitutional, while hands-off programs like the G.I. Bill are appropriately constitutional.

These may provide neat labels but there is no constitutional justification for these labels.

Our position is that all citizens and all buildings must be treated equally.

Church buildings are treated just like any other assembly building.

Blind ministerial students must be treated equally just like all other blind students.

The Respondent, however, does not distance himself from the central fallacy of the State Supreme Court, although they try to basically repudiate that Court's decision; that is they still continue to focus on just ministerial students to make their analysis of the primary effect test and the excessive entanglement test.

This Court, in the case of Mueller and Widmar, held that provisions of benefits to a broad spectrum of groups is an important index of secular effect and the state chooses to ignore the fact that this has been the case here; that there is a broad spectrum of groups of all blind students, of all careers, that are entitled to participate in a program.

We would suggest that there is no imprimatur of government approval for religious institutions in this circumstance.

Equal treatment has never been held by this Court to be an unconstitutional... to create an unconstitutional imprimatur under the terms of Widmar versus Vincent and a number of other cases.

There is no fatal symbolism in this case as would be suggested by the state.

In fact, we would say the public would perceive this more as an anti-discrimination kind of law rather than an endorsement of religion kind of law that this Court has found to be fatally violating the First Amendment.

In the case of McDaniel versus Paty, this Court rejected an idea that is central to the state's position and that is that ministers as symbols of the church somehow justify disparate treatment of those ministers.

Of course, we are dealing here with ministerial students rather than those who have accomplished their training and have reached their desired career objective.

There is no constitutional distinguishment between those two statuses.

Simply because Larry Witters wants to be a minister the state feels there is some symbolic violation of the First Amendment here.

Unidentified Justice: You would make the same argument if he were studying, what, Hinduism or Islam or Confucianism.

Mr. Farris: It would not make a difference to our theory--

Unidentified Justice: To be a clergyman in those respective faiths?

Mr. Farris: --Yes.

The leaders of those faiths would be equally entitled to participate or the leaders of secular faiths that this Court has recognized in certain of its cases.

We would contend that there is no excessive entanglement here in the counseling program that the state has suggested must take place.

The requirements are--

Unidentified Justice: Mr. Farris, I gather the Supreme Court didn't reach the entanglement question.

Mr. Farris: --No.

It found the entanglement analysis ill-suited to this case and it found a lack of facts in the record to do that.

We think that the Supreme Court of the State of Washington was right on those points, saying that the state did not build its record to bring an entanglement argument.

Unidentified Justice: If we thought that issue was still open, what should we do, send it back?

Mr. Farris: Well, it would only be open, Your Honor, if the state is allowed to proceed into its new argument and I think that the face of the record is pretty certain.

At the worst case, it should be sent back rather than saying... holding that the excessive entanglement doctrine has been violated here.

Unidentified Justice: But, the state is entitled to present that position, I suppose.

It was presented to the Washington Supreme Court and just wasn't ruled on.

Mr. Farris: They did not argue, Your Honor, at the Washington Supreme Court level or at any level below that the program violated the First Amendment.

It was their contention always before that the First Amendment was irrelevant.

So, it would seem--

Unidentified Justice: Well, nevertheless, the Washington Supreme Court thought there was an entanglement issue, but it just put it aside.

And, I suppose the state may argue for affirmance based on... It may be an infirm argument, but they are entitled to argue it.

Mr. Farris: --They are entitled to argue it certainly.

Unidentified Justice: Is it also possible the Supreme Court of the state thought there was so little to the argument that it didn't deserve any comment at all?

Mr. Farris: I think that would be more in line with our position, Your Honor, but, in any event, the State Supreme Court said that... Rather than there was an entanglement issue, they thought that the analysis was ill-suited to the case and there was no record.

I think they basically just said the primary effect test was the one that was--

Unidentified Justice: Mr. Farris, is that a fair statement, what they did?

They said that because they relied upon the effect of the second prong they didn't have to reach the third.

That is all they said.

They didn't have to reach the entanglement issue.

Mr. Farris: --They did use the phrase, Your Honor, that the--

Unidentified Justice: It is unnecessary for us to attempt... I guess they said a strained analysis of the entanglement effect, but they had already decided the case.

Mr. Farris: --That is correct.

They would have been appropriate to... Even if they thought there was an Establishment Clause... An entanglement problem, to not decide the issue, but I don't read their opinion as suggesting that they really thought there was one there.

Unidentified Justice: I guess Justice Utter's dissent rejected the entanglement argument.

Mr. Farris: Yes.

Justice Utter made a very thorough analysis and we are in strong support of his position in this case and we rely on it greatly.

Thomas Jefferson once wrote, and this Court has quoted it before, that the clergy here in this country seem to have relinquished all pretentions to privilege and to stand on the footing with lawyers, physicians, etcetera.

They ought, therefore, to possess the same rights.

That is the central theme of our Establishment Clause argument, that ministers ought to possess the same rights in the Department for the Blind as in every other department that is appropriately involved with ministers in the State of Washington.

Under the Free Exercise portion of our argument, one of the... before we get into the merits of that, we must address the issue of whether this Court should decide the issue now or remand it for a decision of the state constitutional issue.

Some of the amici, most particularly the Solicitor General's office, has raised the suggestion that this case be remanded for a decision of the state constitutional issue since it would be, in all fairness, to say that the Supreme Court of Washington hinted at the result but ducked the issue.

Unidentified Justice: You mean remand it after this Court disposes of the issues that the Supreme Court of Washington did decide?

Mr. Farris: That is correct, Your Honor.

And, although the Solicitor's office does not cite the case, some of the other amici cite the case of Rescue Army against Municipal Court.

We rely on Widmar versus Vincent to counter this argument.

In the Rescue Army case, there was a complex statutory scheme that was not fully interpreted by the California courts.

And, this Court held that remand is appropriate under circumstances where state law is highly ambiguous or if a state law construction is fairly possible to avoid the federal constitutional issues.

This Court also said in the Rescue Army case that discretion would be exercised depending upon the degree of uncertainty about the state law issue.

In this case, there is no ambiguity, there is no uncertainty in this case.

If there is a discretionary spectrum involved, this case is as far at the end of the uncertainty side as can possibly be.

It is our contention, as we argued in our reply brief, that there is no difference between this case and Widmar as far as this issue is concerned.

Unidentified Justice: So, you don't think that even if... For instance, you said it would not be an establishment, that you think the Washington... the State of Washington would have to extend it; that it just couldn't say, well, whether this is an establishment or not, we prefer not to furnish aid to this kind of religious education.

Mr. Farris: That would be our position, Your Honor, but that is not this case.

This case is that the legislature of the State of Washington chose to fund this kind of aid.

And, it is our position that this Court ought to permit, both under the Establishment Clause and the Free Exercise Clause, the enforcement of that legislative will.

Unidentified Justice: I suppose the Commission thought that extending the aid would violate the state Constitution.

Mr. Farris: That is correct.

Unidentified Justice: What are you going to do about that?

Mr. Farris: Well, it is our position that the state constitutional provision as so applied is unconstitutional as applied just like--

Unidentified Justice: So, you have to get to your free exercise argument.

Mr. Farris: --That is correct, Your Honor.

Unidentified Justice: And, you have to win on it really in the long run to do any good.

Mr. Farris: That is absolutely correct, Your Honor.

Unidentified Justice: And, in fact, if it is correct that the state Constitution prohibits this kind of state aid, then we do have the case that I posed to you and Justice White posed to you in the question.

We would have a situation where the state says you can't provide this kind of aid in a vocational rehabilitation or any other kind of a program.

Mr. Farris: It would be analogous to Sherbert and Thomas in that kind of situation, yes, Your Honor.

Unidentified Justice: But, we don't have that case at the present time, do we?

Mr. Farris: It is my position that you do not, because there has been a distinction between applying a constitutional provision... I think there is a distinction between applying the state constitutional provision and the policymakers of the state saying we want to fund this aid.

Now, the state--

Unidentified Justice: There is no question that the State of Washington legislature passed a statute which is construed by the Supreme Court of Washington, said we want to fund this aid.

The Supreme Court of Washington then says, no, you can't because of the First Amendment of the United States Constitution.

Now, if this Court were to hold that was wrong, then down the road there might be the case where the Supreme Court of Washington would say, well, it violated the state Constitution, but it hasn't said that at this stage of the litigation.

Mr. Farris: --It has not directly said.

It has hinted at it broadly.

Unidentified Justice: Well, is that the whole picture?

Are there not state administrative regulations in this very program that make it clear that aid will not be furnished, payments won't be made to pay for religious study?

Mr. Farris: There is a policy that has been advanced but it is not a form of a regulation.

It is simply a letter ruling in effect and it does not give... It is not in the state Administrative Code, so there is a state informal policy.

Unidentified Justice: There is an adjudication.

Mr. Farris: And, there is an adjudication.

Unidentified Justice: Adjudication that is reviewable, I suppose.

Mr. Farris: That is correct.

And, it was reviewable at the State Supreme Court and they chose not to review it.

Unidentified Justice: That is the way an awful lot of the law is made, by adjudication.

Mr. Farris: That is correct, Your Honor.

Unidentified Justice: Mr. Farris, may I just review one thing with you?

Is it not correct that if we should agree with you on the Establishment Clause issue as a federal constitutional matter and if we should be in doubt as to what the state might do with its own Constitution, then we could remand without ever reaching the free exercise issue?

Mr. Farris: That is correct, Your Honor.

But, we would contend that there is no doubt--

Unidentified Justice: Well, at least two members of the State Supreme Court thought it did not violate the state Constitution, is that not correct?

Mr. Farris: --That is correct.

Unidentified Justice: And, they actually addressed the issue.

Mr. Farris: That is correct.

But, we think the language adopted by the seven-member majority was so clear as to their intent of what they would do if they had to reach the issue.

They said, in effect, our state Constitution requires a far stricter separation of church and state which I have described in our reply brief as an anvil-like hint of what they were going to do if they actually reached the state constitutional issue.

Unidentified Justice: There is a lot of difference between anvil-like hints when you misinterpret the federal Constitution and actually deciding it.

Mr. Farris: That is correct.

Unidentified Justice: I am not suggesting they did misinterpret it, but it is a little different.

Mr. Farris: That is correct, Your Honor.

But, under the Rescue Army criteria of is there ambiguity, is there uncertainty, we would suggest there is no uncertainty in the State Supreme Court's position on this.

Unidentified Justice: Well, there certainly is no ambiguity or uncertainty about the state's policy as interpreted by the state's highest court and the state's policy is not to fund this kind of education.

Mr. Farris: That is the State Supreme Court's--

Unidentified Justice: So, we don't have to be concerned about what the state Constitution says because, as a matter of state policy as interpreted by the state court, they don't fund it.

Mr. Farris: --I think that that--

Unidentified Justice: And, you take the position that the Free Exercise Clause of the federal Constitution requires them to fund it against their will.

Mr. Farris: --Well, I would not characterize it as state policy, Your Honor.

State policy, in my view, is made by the legislature.

Policy is not made by the courts.

The courts are there to interpret the law, not to make policy.

So, in my theory of the case, there is a difference between policy and constitutional adjudication.

Unidentified Justice: Well, let's explore this a little bit further.

I realize you probably have other things you want to get on to, but is there a state policy which says this kind of education will not be funded even though the legislature has said it should be unless there is some constitutional difficulty with the funding?

Mr. Farris: I don't know of any such policy, Your Honor.

In fact, we cite in our opening brief another program of higher education that was granting aid to all private schools in the State of Washington, private college students, and in there there was an exclusion for those pursuing a theological course of study.

And, it is our argument that if the state legislature wants to exclude these kinds of people it knows how to do it and it has done so in the past.

And, the argument about state policy, I think, is made difficult because the state constitutional provisions have been interpreted to prohibit aid of any kind to religious colleges at all.

Unidentified Justice: What precisely is the source of this state policy to which you referred in answering Justice O'Connor's question?

Mr. Farris: My understanding of what constitutes state policy for constitutional purposes--

Unidentified Justice: I mean in this particular case the question was raised there is a state policy against it.

Now, what is the... how does that policy manifest itself?

Who said so?

Mr. Farris: --Well, Your Honor, I don't think there is a broad thing that we can call state policy.

We have state statutes and we have the state Constitution and we have court interpretations.

I think that the policy analysis ascribes to... must be penned upon some legal document, some legal process, and I don't see one here.

Unidentified Justice: We are not talking about some administrator who intransigently refuses to carry out the will of the legislature, even though there are no constitutional impediments to him doing so.

Mr. Farris: That is correct, Your Honor.

Unidentified Justice: And, the only policy the Supreme Court of Washington purported to be expressing was a federal constitutional policy.

Mr. Farris: And, that is also correct, Your Honor.

We think that they were obviously in error.

Briefly, in the free exercise arguments raised by Respondent, they argued that this is a case like Harris versus McRae and this Court should not find against the legislative will.

As we have argued already, we are not asking this Court to override the legislative will.

In fact, both Congress and the State of Washington's legislature where the source in this case have said it is okay for ministerial students to participate.

We think this case is indistinguishable from McDaniel, Thomas, Sherbert, and the other cases of this Court and would ask this Court to reverse the decision of the court below.

Chief Justice Burger: Very well.

Mr. Malone?

ORAL ARGUMENT OF TIMOTHY R. MALONE, ESQ. ON BEHALF OF THE RESPONDENT

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

I wish to address four points.

First, I wish to discuss why this particular vocational rehabilitation program is not like the G.I. Bill or, and this is saying the same thing, why it is not like the program involved in Mueller versus Allen and I wish to discuss why this difference is critical constitutionally.

Second, I wish to touch on this question that has been referred to in counsel's argument as to the statutory source of the federal funding and supposed deficiencies of the record on this question, because that bears upon whether or not I should have been making my first point at all.

Thirdly, I wish to examine how this question of our submission differs from that of the court below and what difference, if any, it makes.

And, fourthly, I wish to step back and ask what role does the Free Exercise Clause play in all of this?

I think by now it is apparent that it is important indeed and that the Petitioner is trying to use the Free Exercise Clause not only to invalidate the religion clauses of our state Constitution, but also to have the Free Exercise Clause swallow up a large part, I would suggest, of the Establishment Clause jurisprudence of this Court as well.

Before turning to our first point though, I want to take up this question of state policy.

We have two constitutional provisions that are relevant in this case.

Unidentified Justice: In which Constitution?

Mr. Malone: The state Constitution.

Article I, Section 11, says no public money shall be applied to any religious instruction.

Article IX, Section 4, says all schools maintained or supported, wholly or in part by public funds, shall be ever free from sectarian control.

In Weiss versus Bruno, a decision of our State Supreme Court, which was referred to in the decision below in this very case, the Court made it clear that it takes... under those religion clauses the funding restrictions for religious instruction for church-affiliated schools are even more strict than those established by this Court under the Establishment Clause.

Now, that is the source of the policy that we are talking about.

That policy--

Unidentified Justice: It is a state constitutional policy?

Mr. Malone: --The state Constitution.

Now, that policy in the state Constitution was embodied in a written policy statement applicable to this particular program which said we cannot fund ministerial students.

But, Justice Rehnquist is absolutely right.

That policy is embodied right in the Constitution.

Secondly, I would suggest that there is nothing in the state statutes involving this program which are contrary to that policy.

The state statutes or the state statute which we used have... it was changed somewhat in 1983... said the Commission for the Blind may maintain or cause to be maintained a program of services to assist visually handicapped people.

Under such program the Commission may provide for special education or training in professions, businesses, etcetera.

The new statute for all practical purposes is quite similar in this respect, that it is discretionary.

I do not read in there a legislative determination that, boy, we want to fund ministerial training.

So, again, we have the basic policy established in our Constitution which the Petitioner wishes to have invalidated and we do not have a clear legislative declaration that it wants to override that policy.

Unidentified Justice: General Malone, that certainly isn't the position taken by the Supreme Court of Washington.

I realize that you differ from the Supreme Court of Washington, but certainly the easy way out for the Supreme Court of Washington in this case would be to say, well, this statute doesn't authorize what the Plaintiff wants, so we don't have to get to any constitutional--

Mr. Malone: I am not saying the statute doesn't authorize it.

I am saying the statute does not... that the statute is ambiguous and the statute shows the legislature did not specifically address the question, do we fund ministerial training or don't we?

Unidentified Justice: --But, the Supreme Court of Washington certainly took the position that ministerial training was going to be funded unless there was a constitutional objection to it, don't you think?

Mr. Malone: Let me put it this way.

They certainly took the position that it was okay for the Department of Services to the Blind to put blind people through the program, including the program of ministerial training unless there was a constitutional objection to it, yes.

With that, I would like to--

Unidentified Justice: Mr. Malone, is it our function to try to construe the state Constitution here when the Supreme Court did not--

Mr. Malone: --No.

All I am trying... Mr. Justice Burger, absolutely not.

I am trying to point out what the source of this state policy is and how it goes right back to our Constitution.

And, even more importantly, I--

Unidentified Justice: --Well, Mr. Malone, under your version, the applicable Washington law, would it be perfectly all right to have funded Mr. Witters' education at Inland School if he wanted to study history, for example?

Mr. Malone: --If he wanted to study solely history, yes.

Unidentified Justice: He could do that in a religious school?

Mr. Malone: Yes.

Indeed--

Unidentified Justice: And, it would be all right under the state Constitution as well as the federal to pay the tuition.

Mr. Malone: --Not certainly the federal, probably the state at least if he wants to be a historian, if he wants that to be his profession.

I would like to discuss then why this vocational rehabilitation program is simply not like the G.I. Bill and why that difference is constitutionally critical.

Now, what I might call the normal rule seems to be that in cases such as this one must separate out the secular from the sectarian and fund only the secular, not the sectarian.

However, there is apparently an exception, what you might call the delivery system, which embodies a hands-off, passive role on the part of the government, and if the program in terms of beneficiaries is sufficiently broad-based, apparently one does not need to make this separation.

I would suggest that is the rationale which was applied in Mueller.

I would suggest that that is the rationale which would justify the application of the G.I. Bill to ministerial training.

Now, there is, of course, in this case no effort whatsoever to make any such separation.

So, the effort must be to come within what we might call the Mueller G.I. Bill exception.

The Solicitor General and the Petitioner in his opening brief argued exactly that.

This program was just like the G.I. Bill and the Mueller rationale applied.

Now, we say that it is not like the G.I. Bill.

The Mueller rationale does not apply.

Let me illustrate in terms of the G.I. Bill itself.

Under the G.I. Bill the government really just cares that the veteran is in an accredited school and that is it.

The specific school that he goes to, as long as it is accredited... and by the way, the federal government doesn't even do the accreditation.

The specific school is of no concern to the government.

What courses he takes are of no concern to the government.

Whether the student has made any sort of career source is of no concern to the government.

He could take Sanskrit and spend the rest of his time wandering around in India, say, and that is of no concern to the government at all.

But, let's change things.

Let's suppose that the government amended the G.I. Bill and said you have to make a career choice now and we have to approve that career choice.

In light of that career choice, we also have to approve the school and the courses you want to select to make sure that it all fits.

Now, let's set aside for the moment the question of how the government goes about making those decisions, what criteria to use to approve or not approve those choices.

The mere fact of need for approval, it seems to me, changes the delivery system, if you will, and takes the program out of the Mueller rationale, the Mueller G. I. Bill exception, and back into the normal rule of leading, of having to bring about that submission.

And, I suggest that the vocational rehabilitation program we have here is exactly like that new G.I. Bill and, therefore, it cannot fall within the Mueller rationale, the Mueller exception, and the normal rule that you have to make the separation.

Unidentified Justice: Mr. Malone, are you asking that we focus on the fact that in order to get the aid Mr. Witters must subject himself to state regulation, is that your concern, or is it that it advances religion in your view because Mr. Witters wants to become a minister?

Which is it?

Mr. Malone: Both.

I focus on both, so to speak, what is delivered, what the state is buying, Justice O'Connor.

Unidentified Justice: Do you think the Court normally looks at the program as a whole rather than focusing on the individual receiving the aid in these cases?

Mr. Malone: It is precisely... Yes.

It is precisely there that we part company somewhat with the court below.

Unidentified Justice: Well, do you think this Court generally has given a broader focus to the inquiry rather than just looking to the individual?

For example, suppose the state has a welfare program and hands out welfare money to someone who tells you I am going to give part of this money to the church on Sunday.

Is that okay?

Mr. Malone: Absolutely... Of course, yes.

Absolutely no problem there.

But, what is the difference from that situation and the situation here?

The situation you have here is, I suggest, this: Mr. Witters wants to the state to buy for him ministerial training.

Now, that is not a good start under the Free Exercise Clause, and, indeed, our State Supreme Court would say that fact in and of itself is fatal.

We suggest, though it is not a good start, it is not the end of the inquiry, precisely, Justice O'Connor, because of the point you just raised.

You have to look not only at what is provided, what is delivered, you have to look at the nature of the delivery system, at the breadth of the types of beneficiaries, the overall scope of the program, and also in looking at the overall program you also have to look at the role of the state in that program in order to see whether or not it embodies a hands-off policy, such as I suggest you had in Mueller, or whether it... And, such as I suggest you also have in the G.I. Bill.

Our basic submission is that if you do not have that hands-off policy, then you are back under the normal rule.

You have to separate out the religious and the secular.

Unidentified Justice: General Malone, was this Inland Empire Bible School, was that an undergraduate institution?

Mr. Malone: I believe that it was.

Unidentified Justice: And, if Mr. Witters had qualified under the G.I. Bill, could he have done... taken just the courses and enrolled for just what he proposed to enroll under the G.I. Bill.

Mr. Malone: I believe he could have as I understand the G.I. Bill.

And, again, the reason we say he can't use our money for that or he can't use this program for that is because of the difference in the delivery system between the G.I. Bill and this program.

Now, the Petitioner says that this question of state involvement under this program is being exaggerated and that we can make approval decisions on the basis of objective criterion and that somehow this solves the problem.

Well, I suggest that it does not solve the problem at all.

The state has to approve, first of all, the career choice.

I think we are all agreed on that.

Let's see how objective criteria might work in that respect.

Suppose again, on the basis of objective criteria, say Department of Labor data, the Episcopal Church, we find, has a surplus of priests and the Catholic Church has a shortage or there is a great need for Lutheran ministers but there doesn't seem to be much need at all for denominational ministers.

Now, the vocational educational counselor then, right at the start, is going to have to say, I am sorry, I can't help you if you want to be Episcopalian, if you want to be an Episcopal priest, or a non-denomination minister, but if you want to be a Lutheran minister or a Catholic priest, yes.

On the basis of these objective criteria, I can help you.

Suppose one particular seminary or bible college has a great success rate in its placement of its graduates and suppose another one has a low success rate.

So, the voc/rehab counselor has to say to the student, though you really want to go to Seminary X.

I am sorry, if you want to be a minister or priest, you have to go to Seminary Y.

Suppose we had something like an objective test, say, put out by Educational Testing Service up in Princeton, similar to the LSAT for ministerial students.

Counselor or at least some state official is going to have to decide on a cut-off point as to who, you know, passes and who flunks.

And, he is going to have to say to one student, okay, we will pay for your ministerial training and he is going to have to say to another, we won't pay for yours.

The test indicates to us you are too low, you are not going to be a success, either in school or you are not going to be a success in the ministry.

Now, I think that... I dare say that the likelihood of these things happening even under the so-called objective criteria which the Petitioner would have you rely on, it seems to me the likelihood of these things happening should be very disturbing, whether we focus on either the second or the third prong of the Lemon test.

Unidentified Justice: General Malone, what is there in the record to tell us anything about the likelihood that any of these things might happen?

Mr. Malone: In terms of the actual operation--

Well, let me put it another way.

We do know that this is 80 percent federally funded.

The record does not say where that federal funding comes from.

The Solicitor General at page... I forget which page... But, in Footnote 11 it says it is the 1973 Rehabilitation Act.

Unidentified Justice: Did you, at the trial level in this case, have an adequate opportunity to present evidence of this kind of problem that might develop in this case?

Mr. Malone: Yes and no and let me explain that answer.

Through the trial court level and, indeed, through the argument before the State Supreme Court the only thing we were talking about were the state constitutional provisions that I mentioned at the beginning of my argument.

So, there was no need to focus at all upon the Establishment Clause problem at all or the entanglement problem in particular.

Unidentified Justice: Whether you elected to rely on the federal Constitution in defending your opponent's claim was certainly within your control, not within your adversary's.

Mr. Malone: Certainly.

Were this issue, Justice--

Unidentified Justice: Let me ask one other question.

Supposing, as has been suggested, that we thought there was no merit to the primary effects defense, but maybe there is problem with the entanglement as you argue today.

Mr. Malone: --Yes.

Unidentified Justice: And, they haven't decided it and say we send it back and decide the entanglement issue.

Couldn't you then develop the record that would support this argument?

Mr. Malone: Certainly, certainly, Mr. Justice Stevens.

On the one hand, I realize the difficulties which come from just relying upon the federal regulations, the federal statutes, the federal regulations.

I understand those difficulties.

Unidentified Justice: Your hypotheticals have triggered a question in my mind I would like to put to you if I may.

You talked about employment opportunities in different denominations.

Supposing you had an unemployed assistant pastor of the Lutheran Church or something and he went in for unemployment compensation.

Would he be denied unemployment compensation?

Mr. Malone: No, no.

And, let me put to you another case.

Unidentified Justice: Would he have to prove that he had really been a minister and that he was eligible and all that sort of stuff?

Mr. Malone: One, would he have to be denied unemployment compensation under the Establishment Clause?

No.

Would he be under the religion provisions of our state Constitution?

I would suggest no, which raises another question.

Let's suppose, Justice Stevens... Let's suppose that he is a minister and he happens to be going blind and so he needs to learn Braille.

Now, I am touching upon the Free Exercise issue And, suppose he comes to the Department of Services for the Blind and says I am not going to be able to perform my functions as a minister unless I get this training in Braille, will you give it to me?

And, my answer would be the Free Exercise Clause would require that we give it to him.

The Establishment Clause would not prohibit it, nor would the religion clauses of our State Constitution.

Why?

Because Braille is not religion-specific.

That is to say Braille is something which somebody could well want for purposes having nothing to do with religion.

Now, what I am suggesting, and this gets back to Justice O'Connor's question as to the scope of the Free Exercise Clause here, it seems to me that under such cases as McDaniel v. Paty and Sherbert versus Verner, what was involved there were benefits or rights or whatever that were not religion-specific.

What Mr. Witters wants here is to use the Free Exercise Clause to require the state to give him something that is religion-specific.

McDaniel v. Paty does not require that.

Unidentified Justice: It all depends on the lens with which you view it.

If you look at the whole program and say what we have here is educational funding for vocational rehabilitation, then it isn't religious-specific.

If you focus just on Mr. Witters, it is.

The same in Sherbert, the same in Thomas.

It depends on how you look at it.

Mr. Malone: I am using the religion-specific/not religion-specific distinction, Justice O'Connor, as a distinction which should be embodied in applying the Free Exercise Clause.

When you get to the Establishment Clause question, I suggest that, indeed, the question is how do you look to it and I suggest that the critical question is under what circumstances do you have to make this separation which clearly is not being made here.

I am suggesting that this case does not present the circumstances under which you have the G.I. Bill or the Mueller type exception.

I would suggest then that these objective criteria are going to produce very strange results which I should suggest this Court should find very disturbing under the Establishment Clause.

Now, this counselor that I was talking about quite possibly might find some way out of this, might say, well, I am getting over my head.

Unidentified Justice: General Malone, I notice there were hearings first before an initial hearing officer and then a review within the administrative agency.

Was any evidence as to how the program works or whether there would be counselors involved brought out there?

Mr. Malone: None of what I am discussing now was brought out at those administrative proceedings, because again, Justice Rehnquist, what we were focusing on was at that stage all the way up until the Supreme Court of the State of Washington issued its opinion, all we were focusing on were the state religion clauses.

For my discussion here as to entanglement, I am relying upon the federal regulations and the state regulations which pretty much track this.

Unidentified Justice: Mr. Malone, what would you say about a foundation that was created to grant scholarships, only one purpose to grant scholarships to students studying for the priesthood of the Roman Catholic Church.

Would it be entitled to 501(c)(3), if that is the right section, exemption from--

Mr. Malone: Yes, and I believe that it would, and I believe that it would under the reasoning of this Court in Walz.

The answer would be yes.

Unidentified Justice: --It wouldn't make any difference.

It would be obvious then that if it were for all religions it would be equally good.

Mr. Malone: Yes.

I see no problem with 501(c)(3), but again, 501(c)(3) involves a hands-off delivery system as did the tax deduction... I am sorry.

Unidentified Justice: Do you think that is like the tax case in the New York situation?

Mr. Malone: No, the tax case in Mueller.

Unidentified Justice: I beg your pardon?

Mr. Malone: I am referring to Mueller when I say the 501(c)(3) is like the--

Unidentified Justice: Well, is it not also comparable to the general rule which has been laid down that churches are not to be taxed?

Mr. Malone: --Oh, Walz as well, yes.

Unidentified Justice: In other words, 501(c)(3) merely implements that--

Mr. Malone: Yes.

I could justify 501(c)(3), Mr. Chief Justice, both under the type of Mueller rationale and under the Walz rationale, which I think are quite similar.

To get back to my counselor who is worried about the types of results that would come out under these so-called objective criteria, that counselor might well say, well, I am over my head, I don't know anything about this, and I am in an area that is religiously sensitive, I am going to get out of it, I am going to rely on the experts.

I will let them tell me whether or not this person has the aptitudes for the ministry, whether this school is the best school for this type of ministry, so on and so forth.

But, I would suggest who are those experts?

Those experts have to be church and seminary or bible school officials themselves.

So, once our counselor decides to do that, then it seems to me you walk right into a Grendel's den type of problem.

You have a type of delegation.

So, it seems to me that however much you try, given the federal regulations and the state regulations that govern this program, there is no way to get out of this swamp.

There is no way to get out of this entanglement.

With respect to the Free Exercise Clause issue, again, I would just emphasize that a state should have the option under this Court's jurisprudence to say we do not want to fund ministerial students.

That is what we have said in the religion clauses of our state Constitution.

And, I suggest that there is nothing in the Free Exercise Clause decisions of this Court which invalidate those decisions of the State of Washington as embodied in their Constitution.

Thank you.

Chief Justice Burger: Very well.

Do you have anything further, Mr. Farris?

You have 4 minutes remaining.

Mr. Farris: Yes.

In response to the arguments raised by the Respondent in this case, I would point out, first of all, that the G.I. Bill, unlike the contentions of the Respondent, is concerned with the career choice selected by the recipients of that Bill.

As we pointed out in Footnote 20 of our opening brief, 38 U.S.C., Section 1673, lists a number of courses of study in career objectives which are excluded from the Bill's coverage, including any course in bartending, personality development, sales courses, etcetera, are types of courses that the G.I. Bill excludes.

So, there is concern there by the Congress, just as there is concern by the state legislature, that people will pursue career choices that will lead to legitimate kinds of employment.

Also to answer the Chief Justice's inquiry, the Solicitor's brief points out in Footnote 3 that Inland Empire School of the Bible is an eligible institution for people to enroll in the G.I. Bill.

Turning to the meat of the Respondent's argument, they have argued based on speculation, as we suggested in our opening argument, about various kinds of things that might happen, could have happened, might happen under the career counseling that takes place, but they did not put any kind of this evidence in the record below.

If they thought the federal Constitution or the federal statutes or the federal regulations gave them a source of defense of this claim, they could have and should have, we would submit, put the evidence in the record below and their failure to put that evidence in should not be charged to our account at this point.

We think this case should be decided on the record and it should not be sent back for development of more facts, and, moreover, it should not be decided at all on speculation as engaged in by Respondent.

ORAL ARGUMENT OF MICHAEL P. FARRIS, ESQ. ON BEHALF OF THE PETITIONER -- REBUTTAL

Unidentified Justice: But, if we just reverse... Our usual mandate says reversed and the case is remanded for further proceedings not inconsistent with this judgment.

Then it would just be up to the Washington Supreme Court.

If it thought the case was over, the case was over, but if it wanted to decide the entanglement question, I don't suppose we could say that it was forbidden to do so.

Mr. Farris: I suppose not, Your Honor, but I think if this Court held we were correct on the Free Exercise Clause issue, that would foreclose the other inquiry in all likelihood.

Unidentified Justice: So, you really think we must decide the Free Exercise Clause?

Mr. Farris: It is our desire that this Court would and we think--

Unidentified Justice: I know desire.

I know what you desire.

[Laughter]

But, you don't really think we have to, that it really is an issue that is required to be decided to reverse the Washington Supreme Court.

Mr. Farris: --It is not required absolutely, but if there is no prudential consideration of the Rescue Army type of criteria for failing to do so, we would urge this Court to decide the Free Exercise Clause issue.

Unidentified Justice: Of course, if it went back to the State Supreme Court and the State Supreme Court went against you, conceivably you might be up on a Free Exercise claim or you might try to get up on a Free Exercise claim here.

Mr. Farris: That would be correct, Your Honor.

The state, we would say, importantly fails to give us any distinctions between the kind of approval process that they speculate about here and the approval process that is inherent in a building permit project by a church.

And, we think that is a fatal error on their part.

Finally, we would turn to the issue of the state policy, the term that has been used this morning.

We would contend that there is no clear-cut state policy that prohibits the kind of aid that is in question.

The state decisions before of Weiss versus Bruno which they rely on and which the State Supreme Court relied on said that you couldn't go to a religious college for any purpose using state monies.

But, today the Attorney General has conceded that a blind student can go to Inland Empire School of the Bible or other religious colleges as long as he wants to have a secular career choice.

Where is the clearcut source of the state policy in such a circumstance?

Chief Justice Burger: Your time has expired now, counsel.

Mr. Farris: Thank you, Your Honor.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Grand Rapids School District v. Ball - Oral Argument

Fri, 31 Aug 2012 18:29:54 +0000

Case:

Grand Rapids School District v. Ball

Media File:

83-990_19841205-argument

Related Transcript:

83-990_19841205-argument

Transcript:

ORAL ARGUMENT OF KENNETH P. RIPPLE, ESQ. ON BEHALF OF PETITIONERS

Chief Justice Warren E. Burger: We will hear arguments first this morning in School District of Grand Rapids v. Ball.

Mr. Ripple, you may proceed whenever you're ready.

Kenneth F. Ripple: Mr. Chief Justice, and may it please the Court, this case is here on writ of certiorari to the United States of Court of Appeals for the Sixth Circuit.

The principal question is whether a public school system, here the Grand Rapids Public School System, may offer in leased classrooms within religiously oriented non-public schools, enrichment and remedial courses for the children who regularly attend those schools.

Now, unlike many of the religion clause cases which have come to this Court over the last decade, this case is here on a full trial record.

And one of the difficulties, quite frankly, judges have had is analyzing that record.

We have, first of all, prepared for you a second volume of the appendix which is an index to that record, and before I get into a full-blown treatment of the facts, I would also like to mention three particular points which I think would help you in analyzing the facts of this record.

First of all, I think it is very important to recall that there are two very distinct programs involved in this case.

The first is a shared time program.

This involves public school teachers teaching enrichment and remedial classes in these leased classrooms during the regular school day.

The second program is a community education program.

That community education program involves leisure time activities, after school, led by part-time Grand Rapids public school employees.

Unidentified Justice: Are these programs available to all the public schools on the same basis?

Kenneth F. Ripple: They are available to the children in the public schools as well, Mr. Chief Justice.

The shared time program is available as part of the curriculum of the schools.

The leisure time activities is available not only to the children in the public school, but also to many other people in Grand Rapids.

For instance, in the local General Motors plant, there is a General Motors community education program where they hire part... GM employees to teach programs of leisure time activities.

The second point which I think is important to recall is that not all of the programs which were subject to trial in this case are here on appeal or were before the Court of Appeals.

The only programs which are before the Court today are the following:

First of all, the shared time program at the elementary school level in remedial mathematics and enrichment mathematics, remedial reading and enrichment reading, art, music, and physical education; secondly, a single secondary remedial program called Math Topics, designed to help children who can't understand basic mathematical concepts; and lastly, the community education program at the elementary school level.

Lastly, I think it would be... it is important to help you analyze this record if I very succinctly state our position in the case.

We submit that the criteria developed in Lemon v. Kurtzman, when sensitively applied, are in fact adequate to resolve the constitutional issue before this Court.

We further submit that a sensitive application of the Lemon criteria requires that the Court ground its holding in the actual record which reflects the actual operation of the program.

We submit that before a Court frustrates the attempt of a local community to give help to 11,000 school children, it ought to find in fact the specific and actual consequence of that program which violates the establishment clause.

We further--

Unidentified Justice: Mr. Ripple, do you take the position that the standing requirements are satisfied in this case?

Kenneth F. Ripple: --We do maintain that the standing requirement is not satisfied.

First of all, we believe that Flast v. Cohen and Valley Forge have not been met by the Plaintiffs in this case, and we also submit that if this Court were inclined to view this as municipal taxpayers standing, that it is time to review the dicta in the Mellon case.

Indeed, it is... municipal taxpayers standing does, in fact, allow a heckler's veto in this case, because the fact of the matter is, this program doesn't hurt any taxpayer in that town, and there was no problem until the suit was brought.

Unidentified Justice: Was there a challenge to the state statutes providing money, or was it a challenge to the Grand Rapids administrative program?

Kenneth F. Ripple: It was a challenge to the Grand Rapids administrative program, and not to the legislative appropriation of the money.

They did not ask that the statute be enjoined.

And the reason for that, Justice O'Connor, is that the legislation itself doesn't speak in terms of shared time programs on leased premises.

It's a general appropriations state of money to local school districts and local school districts in Michigan may do what they want with this money.

Unidentified Justice: But these people are Michigan taxpayers as well as Kent County or Grand Rapids taxpayers, aren't they?

Kenneth F. Ripple: They are, Your Honor, but they did not attack a specific use of the spending or taxing power by the legislature of Michigan.

It is our position that under the Flast holding and the Valley Forge holding, they would be required to do so; in effect, that they have failed the first prong of the Flast test.

Our submission is that the difficulty which the lower courts have had with this record can really be substantiated in two very succinct points.

First, there is simply a huge gap between the findings established at trial in this case and the legal conclusions of law reached by the Court of Appeals.

And, secondly, we submit that there is evidence on the face of the Court of Appeals opinion that a reason for this disparity between the facts established at trial and the conclusions of law was the manifest preference of the majority of the Court of Appeals for public as opposed to non-public education, a choice, we suggest, which is not theirs to make.

Now, turning to the facts of this case, the record initially shows two points which we think are very important.

The first is the religious plurality of this community of Grand Rapids, Michigan.

We're talking here of a community with a long tradition of religious plurality.

We're talking here of not only a strong Catholic school system, but a very strong Christian school system in the Dutch reform tradition which has over 50 different denominations under the roof of its school.

We're talking about Seventh Day Adventist schools, we're talking about Lutheran schools.

The second significant point I think the record indicates in terms of a background to this case is the commitment, traditionally, of the public school board in Grand Rapids to total community education.

At least in their way of doing things, a school board does more than run a public school system.

Now, when you combine these two factors, I suggest, it is quite obvious this local community would want to, in these programs, assist 30 percent of its children, including a good number of inner city children who do not attend public school, and traditionally whose families have not gone to public schools.

It is interesting to note that when this program was set up, the Grand Rapids showed particular sensitivity to the constraints of the religion clause with respect to four factors which, really, there was a religion clause consideration: the physical arrangement, the hiring of the teachers, the matter of supplies, the matter of teaching materials.

And I'd like to address each of those briefly, if I may.

First of all, with respect to the physical arrangements, the touchstone was legal and actual control in public school hands.

From a practical point of view, the hands of the local community were really very limited here.

There are no public school facilities to which you could take 11,000 children.

The busing situation would have cost $830,000 a year; would have entailed moving small children all over town, all day.

And many of these kids are kids who need teacher time.

These programs are remedial programs in part.

And, for these reasons, it was decided that indeed the program ought to be kept in the... or it had to be kept within the local... within the school of their primary education.

Unidentified Justice: Mr. Ripple, you emphasized in your original three points, and just now, the remedial character of the program.

Would it be a different case if it were a required course such as English literature or mathematics?

Kenneth F. Ripple: Yes, Your Honor, we believe it would.

Unidentified Justice: And, if so, why?

Kenneth F. Ripple: We think that the touchstone here ought to be non-core, non-substitutionary.

We do not believe and we do not maintain that we ought to be providing courses which are necessary either for advancement in class or for graduation, or that we ought to be taking a financial burden off a school for running courses it already maintains.

Unidentified Justice: But why not?

If, say, the non-public schools had difficulty getting mathematics teachers for some reason; their pay scale isn't enough to attract mathematics.

Why couldn't you help them out that same way?

I don't understand.

Kenneth F. Ripple: Well, that is not this case, but we believe--

Unidentified Justice: I know it's not, but you emphasized the difference, and I'm trying to understand why do you emphasize that difference?

Kenneth F. Ripple: --We think that is a principle distinction to make and it is a good rule of thumb in applying the Lemon test, quite frankly, because it prevents the public school authorities from propping up the primary educational mission of the non-public schools.

Unidentified Justice: In other words, remedial training is not part of the primary education?

Kenneth F. Ripple: That's correct.

And under the law of Michigan, this type of training clearly is not.

And there is an independent state interest involved here.

Michigan has an interest in seeing that a dyslexic child can read.

It has an interest in seeing that someone understands basic math concepts.

It has an independent interest in promoting the cultural arts and in making sure that people are decently physically fit.

Unidentified Justice: It also has an interest in having good math teachers teach all the students.

Kenneth F. Ripple: It does, and it requires that a license be obtained by a non-public school before... so that it can engage in those programs.

And if it doesn't, it pulls its license.

Now, the same with respect to teachers as well.

We've tried to be careful in the running of this program.

Unidentified Justice: In that regard, Mr. Ripple, do you think there is a greater entanglement problem for the community education program than for shared time because so many of the teachers in the community education program are the private school teachers who are being utilized?

Kenneth F. Ripple: It is a different situation, Justice O'Connor.

Unidentified Justice: Do you think it's a greater entanglement problem as a result?

Kenneth F. Ripple: We submit that the difference justifies the difference in treatment.

Studies have shown that unless you can get 12 students interested in a leisure time activity, you can't run it fiscally.

The only way you can get 12 students interested, these studies show, is in fact to have the teacher be someone they know.

The GM local plant, the GM employee who knows about rug hooking or something, that might teach it at these private schools, would be a teacher that the students would know and will stay after class with.

We believe that the fact that there is still a public school chain of command, first of all, and secondly the nature of these leisure time activities make the possibility of religious inculcation so slight that the situation does pass muster under the religion clause tests.

Unidentified Justice: Mr. Ripple, on the enrichment program, what percentage of the regular school day is taken up by--

Kenneth F. Ripple: It varies from student to student, class to class, but--

Unidentified Justice: --What's the average, 10 percent?

Kenneth F. Ripple: --No more than 10 percent.

That's the maximum figure.

Unidentified Justice: What would the students be doing during the regular school hours if they weren't in these enrichment classes?

They would be in some other classes, wouldn't they?

Kenneth F. Ripple: They would be in other classes during the day.

Unidentified Justice: Then isn't this a substitution?

Kenneth F. Ripple: It is... they are, as I understand it, taken out, not from the course, but from certain hours of the course.

Unidentified Justice: Well, nevertheless, they're filling the time that the private school would otherwise fill itself.

Kenneth F. Ripple: They are doing that.

Unidentified Justice: With its own professors.

Kenneth F. Ripple: Yes, but they still must take all of the courses in the school, so they are in effect being excused from class to take the remedial or enrichment class, but still must--

Unidentified Justice: But still, they can't be in two places at once.

Kenneth F. Ripple: --No.

Unidentified Justice: So they are in one of these classrooms when otherwise they would be in the private school's classroom.

Kenneth F. Ripple: But they can have two responsibilities at once, and they do.

They still maintain responsibility for taking and passing the core curriculum.

Unidentified Justice: Well, I just wonder.

If you really think this is crucial to your case, then I think you may have a problem.

Kenneth F. Ripple: I submit it is not crucial to our case, simply because they maintain both responsibilities.

Unidentified Justice: Yeah, all right.

May I ask one other question?

Are the hours that are devoted to this part of the hours that are needed to achieve a degree to fulfill what the state standard is for graduation from high school?

Kenneth F. Ripple: They are the same... the student... normally, the hours required are somewhat less than children actually are in school, I believe, in most states, sir.

These are normal school hours.

Unidentified Justice: Do they count toward the fulfillment of the hours?

Kenneth F. Ripple: The students are required to be in the school building at that time; yes.

These are the normally scheduled hours.

Unidentified Justice: May I ask, Mr. Ripple, does the State require certification of private schools?

Kenneth F. Ripple: Yes, it does require that they be licensed.

And to be licensed, they have to offer--

Unidentified Justice: Do they have to be accredited in terms of approving them as suitable to educate children for higher education?

Kenneth F. Ripple: --The Michigan statute says they must give comparable education, and that has been... to the public schools... and that has been interpreted as meaning they must give classes in language, art, social studies, science, and mathematics.

Unidentified Justice: Do the teachers have to be certified by the state board of education?

Kenneth F. Ripple: I believe they must have a state license.

Unidentified Justice: And that requires a certain level of training to teach.

Kenneth F. Ripple: It does.

And these, of course, are public school teachers who are teaching in the shared time program under the normal hiring practices of the public school.

Unidentified Justice: I'm asking about teachers in general at private schools.

Kenneth F. Ripple: I believe they must have a license as well.

That is my understanding.

In sum, we think we have given one message to the Grand Rapids community.

We care.

We care about all of you, and we think that that message is compatible with the strictures of the religion clauses.

Thank you, Mr. Chief Justice.

Chief Justice Warren E. Burger: Mr. McConnell.

ORAL ARGUMENT OF MICHAEL W. MC CONNELL, ESQ. ON BEHALF OF THE UNITED STATES AS AMICUS CURIAE

Michael W. Mc Connell: Mr. Chief Justice, and may it please the Court, Grand Rapids is not alone in its decision to provide supplemental educational services to school children in the schools that they regularly attend, whether those schools are public or non-public.

Indeed, it's an extremely common practice under Title I of the Elementary and Secondary Education Act of 1965, and is a practice that has been explicitly blessed by Congress.

Unidentified Justice: Mr. McConnell, do you see any significant differences at all in the Grand Rapids shared time program and the Title I program?

Michael W. Mc Connell: Your Honor, I see some relatively minor differences.

I see none that in our view should be of decisive significance.

Unidentified Justice: Does the payment of lease money to the school constitute a significant difference in your view?

Michael W. Mc Connell: That is a difference.

Under the Title I program, there is no least payment to the private schools.

The record here shows that that lease payment is based on an objective analysis of the actual cost of maintenance of the classrooms and thus if for value received.

I think that it should not be viewed as a financial subsidy, but rather as an actual arms-length purchase of the facilities, and on that basis I would think that it would not be distinguishable.

Unidentified Justice: Is the supervision of teachers in the Title I program significantly greater than in the Grand Rapids program by the public school administrators?

Michael W. Mc Connell: Your Honor, you should understand that the precise arrangements for the Title I administration vary from school district to school district.

The basic contours of the supervision in both programs as I understand it is essentially the same, and it is this: that the teachers who are providing the services on the private schools are supervised to the same extent and for the same ends as the teachers would be in the public schools themselves.

In many cases they are, in fact, the same teachers, as you see in the record here.

An individual teacher may be teaching in both public schools and private schools.

The teacher is itinerant and the relationship of that teacher to his or her supervisors does not change merely because of a different building.

Unidentified Justice: Do you see a difference in the community education program and the shared time program in Grand Rapids for purposes of your comparison?

Michael W. Mc Connell: Yes, Your Honor, we do.

There are two difference between the Title I program and the community education program.

First, the community education program does employ, on a part-time basis, teachers from the regular private schools; and secondly, in a few instances, the administration of the community education program is also handled by personnel of the private schools.

Both of these practices would, in fact, be illegal under Title I and do not exist in Title I.

And, Your Honor, we do believe that this is significant, but I would say this in defense of the community education program; that it is really a different type of program altogether than an educational supplement within the private schools, because it's truly a community-wide program.

Factories, hospitals, senior citizen centers, and it's leisure time activities; it isn't the type of teaching that has concerned this Court in its decisions in this area.

And on that basis, I think that it may be subject to a certain degree of more latitude, because it doesn't present the same problems, Your Honors.

As Professor Ripple mentioned, the essential problem with the Court of Appeals opinion is the gap, as he puts it, between the factual findings and the factual record and the legal conclusions in the case.

And I would like to emphasize four particular examples of that, and I select these because they are principles or aspects of the Grand Rapids program which it has in common with the Title I program, and thus I think it is of particular importance to this Court.

We also believe that each of them is constitutionally significant, although perhaps not individually decisive.

The first is neutrality.

It's quite important that this program treats all children alike, without regard to whether they are attending public schools or non-public schools, and without regard to what religious sects they may belong to.

In this respect, it is not possible to say that this program constitutes a preference or an establishment of a religious sect.

It simply respects the choices that parents and children have independently made.

Secondly, is the secular character of this program.

The program provides the same classes, that is, the same topics, indeed the same curriculum, in many cases by the same individual teachers, but certainly all of the teachers under the same control and with the same training, in both the public schools and the private schools.

There has been no instance of religious indoctrination in this program, as even the Court of Appeals acknowledged in its opinion.

The purposes of this program are purely secular and the methods selected, including the placement of the program on the premises of the private schools, is solely for sound educational reasons.

This is not a program which is designed to prop up or benefit or help religious schools.

It is an educationally oriented program, entirely secular in character.

The third point Professor Ripple has already touched on in some detail.

That is, that the program is supplementary in the sense that it provides services that would not otherwise be available to the children in these private schools.

Justice White asked some questions concerning this distinction, and certainly the distinction--

Unidentified Justice: I didn't question that distinction.

Michael W. Mc Connell: --I'm sorry, Your Honor.

Perhaps I misunderstood.

The distinction that is considered important here is that these are services that the schools would not otherwise provide, and thus that the children would not otherwise receive.

We do believe that that's important for determining that the benefit of this program is for children, and it's not a benefit that flows to a religious institution.

Unidentified Justice: On that point, Mr. McConnell, would it be a different case if one of the non-public schools said we'd like to provide these remedial programs; we just don't have enough money to do it... because I would think most schools would like to provide it.

Would that make a difference?

Michael W. Mc Connell: Your Honor, I do not believe it would, because if the principle were that any services that a private school might conceivably and desirably, given infinite resources, provide to the students could be provided, and that that were a constitutionally valid way of looking at the program--

Unidentified Justice: And in order to match the--

Michael W. Mc Connell: --That would mean the transportation, textbooks, any forms of assistance that have been approved by this Court as being benefits to the children, would become suspect.

We believe the test is whether, as a practical matter, the private schools are being relieved of an obligation or financial burden that they would otherwise bear.

We think this is important, not just--

Unidentified Justice: --You are suggesting they would not bear this burden, even if they could afford to do it?

They wouldn't have remedial instruction for their children?

Michael W. Mc Connell: --If they had infinite resources, I suspect that they would provide not only this, but also transportation and textbooks and numerous other benefits as well.

We believe that the child benefit theory would altogether collapse if that were the test to be applied.

Let me stress that this is important, not just constitutionally from not benefitting the religion, but it's also important educationally, because the purpose of these programs as an educational matter is to provide services to children who would not otherwise receive them.

And I'd like to point out in this respect that Title I has exactly the same supplement, not supplant provisions as applied to public schools as it does to the private schools.

The point here is to enhance educational opportunities for children that they would not otherwise receive.

The fourth specific point where the factual record and the legal conclusions of the Court of Appeals simply are not consistent is that this program is... and here I am talking specifically about the shared time program in connection with Justice O'Connor's question earlier This program is truly separate and independent of the private school control.

It is controlled exclusively by public school districts.

The public school curriculum is used.

The teachers are hired, assigned, supervised,... if needs be, fired... exclusively by the public schools.

The shared time teachers are subject to precisely the same forms of supervision in the public as in the private schools.

The private school role in the matter is exceedingly limited.

Their responsibilities are essentially two: They provide a religiously neutral classroom that's empty, for use by the shared time teachers; and they perform very minor administrative scheduling functions.

The consequences of this is that the occasions for government intrusion into the religious aspects of these schools are minimal.

Unidentified Justice: Is there anything in the record that shows how many times state supervisors investigate private schools in Michigan?

Michael W. Mc Connell: Your Honor, there is evidence in the record that the public school officials do attend, on a regular and non-announced basis, the classes conducted by the public schools.

Unidentified Justice: Once every 26 years would be regular.

But does it say how many times?

Michael W. Mc Connell: I believe, Your Honor, that the practice is, on a general basis, once per month.

Unidentified Justice: That's in the record?

Michael W. Mc Connell: I believe so, Your Honor.

I know that that is the case with respect to the Title I program in New York City, and I believe that I recall that that's in the record in this case as well.

Chief Justice Warren E. Burger: Your time has expired now, Mr. McConnell.

Mr. Howard.

ORAL ARGUMENT OF A. E. DICK HOWARD, ESQ. ON BEHALF OF RESPONDENTS

A. E. Dick Howard: Mr. Chief Justice, and may it please the Court, I would like to address myself, if I may, to the specifics of the actual operation of the Grand Rapids program and touch three points.

First, I'd like to say something about the nature of the schools in question, specifically the pervasive sectarianism of the schools being benefited; secondly, say something about the nature of the aid itself.

The particular effect of that aid is to give a direct benefit to these private schools and in particular to their religious mission.

Unidentified Justice: Is that aid different in principle from textbooks that are being supplied at public expense?

A. E. Dick Howard: Mr. Chief Justice, I think it is different in principle and in fact, especially as we looked at this particular case.

Unidentified Justice: At some point, it's your own time.

A. E. Dick Howard: I would like to develop that point, sir, if I may.

Thirdly, I would like to say something about the relationship... and this does bear, sir, on your question... and that is not simply the manner of the aid or the nature of it, but the kind of relationship created between the schools themselves and governmental authorities.

First a word or two about the schools.

These schools in Grand Rapids, these non-public schools, are not schools in which religion plays some incidental or subsidiary role.

These are schools in which religion permeates and informs the very reason for their being.

It is their distinguishing factor.

There is, in the operation of these schools, an integration, coming together of religious purpose and secular instruction.

Now, if one looks to the record, one finds this fact explicitly affirmed in the prospectuses and the handbooks and the bylaws, in the various publications of each of the schools that has benefited in Grand Rapids.

One example The handbook of the Lutheran school in this case says... and I quote: "All subjects",... all subjects...

"are taught with a Christian approach and from a Christian point of view. "

"The bible forms the core and center upon which all instruction is based. "

If one turns to--

Unidentified Justice: Is that true--

A. E. Dick Howard: --Sir?

Unidentified Justice: --Do you say that apply to remedial reading or dyslexics?

A. E. Dick Howard: It's the proclamation of each of these schools that in their teaching of a given subject, in each classroom, each subject, each course, that school is dedicated to infusing secular education with a religious point of view.

Now, your question, I take it, deals with the shared time courses, and there has obviously been an attempt in the structure of these courses to not have religion inculcated in those classrooms.

The thrust of my argument will be that because these schools are so pervasively sectarian, that the operation of these shared time and community education courses, even assuming there was, in fact, no indoctrination in those classrooms, will be of direct benefit to the ongoing enterprise of the private school as such.

In addition to these statements of purpose in the various handbooks and prospectuses, one may look to such things as governance of the schools.

The boards of trustees or managers are either elected by local congregations or sometimes have doctrinal requirements, as is true in the Christian and Lutheran schools here.

The faculty of each of these schools is overwhelmingly of the same religious persuasion.

For example, the superintendent of the Catholic schools has testified to the effect that in addition to clergy and nuns who teach in these schools, that 90 percent of the lay faculty are Catholics.

The admissions policies are often limited by sectarian requirements.

The student bodies, as a result, are strikingly homogeneous.

For example, one of the schools in the case is the Immaculate Heart of Mary School which has a student body of 424, of whom 410 are Catholics.

There are requirements of religious instruction and exercises.

If one looks to all of these indicia and others, one will find that the schools dedicate themselves to fully merging, in their classrooms, in their courses of instruction, both the religious and the secular.

Unidentified Justice: Do you feel, Mr. Howard, that that factor distinguishes the parochial and sectarian schools involved here from other sectarian schools that have involved in our earlier cases?

A. E. Dick Howard: What we have in this case is perhaps the fullest record that this Court has had in a paroch-aid case since the cases first started coming to the Court in the early '70s or early '60, and the remarkable thing about this record is that given the completeness of the documentation, I know of no case in which one has to resort so little to surmise about the pervasive sectarianism of the schools, that they look instead to the--

Unidentified Justice: Well, do you think the Court in its earlier decisions assured that the sectarian schools really weren't sectarian?

A. E. Dick Howard: --Well, it seems to me that in the earlier cases, there were often profiles which were indulged in.

Sometimes, one would suppose that a Catholic school must therefore be pervasively religious.

As I understand the Court's decision upholding certain programs of aid, they basically are of two kinds.

You have the higher education cases like Hunt v. McNair, Tilton v. Richardson, cases in which because of the nature of the student body, the less impressionable audience as it were, the aid was permitted.

The other cases which took place at the level of primary and secondary schools were cases in which the form of the aid itself, for example, a textbook, a school bus, diagnostic testing, et cetera, were aid of such a kind that even though the school might be pervasively sectarian, one saw no first amendment violation of those facts.

Now, it seems to me that the teaching of the Court's cases is that if the record be fairly read as finding these schools to be pervasively sectarian, then, as it was said in Meek v. Pittinger, that substantial aid to the educational function of these schools is necessarily aid to the religious enterprise as a whole.

Let me turn, therefore, to my second point.

Unidentified Justice: Is there any evidence, Mr. Howard, that in teaching the remedial reading, for example, they used religious materials, the bible or other religious materials?

A. E. Dick Howard: Mr. Chief Justice, in the shared time programs, there is no evidence in the record that religious materials were used in those classrooms or in fact that religious doctrines were taught.

Unidentified Justice: The evidence is just to the contrary, isn't it?

A. E. Dick Howard: It's a lack of evidence, Justice White.

It seems to me to be rather odd to assume that the lack of any complaint really proves anything.

Consider, if you will, the classrooms in these schools.

They are... and the record is quite clear on this.

They are made up entirely of students of that same religious persuasion.

So far as the record shows, not one public student ever attended a shared time class in any of the private schools benefited by this program in Grand Rapids.

That being the case, you have a sort of receptive audience.

Who would complain?

Not the parents who have chosen religious education, not the students who are used to it, surely not the schools' teachers or administrators.

It seems to me that the lack of complaint doesn't really--

Unidentified Justice: Wasn't there any evidence, any testimony about this at all?

A. E. Dick Howard: --There was evidence, testimony--

Unidentified Justice: What about the teachers?

A. E. Dick Howard: --Some of the teachers testified that they did not.

Unidentified Justice: The only evidence there is is that they did not.

A. E. Dick Howard: It seems to me--

Unidentified Justice: Isn't that right?

Isn't that right?

A. E. Dick Howard: --If I may say so, it's self-serving evidence.

Unidentified Justice: Well, nevertheless, I'm right.

[Laughter]

A. E. Dick Howard: You are right that the only evidence is that the teachers in question did not teach religion.

Unidentified Justice: Most evidence in trials is self-serving.

Your remedy for that is to cross-examine.

If you don't adequately cross-examine a rebuttal statement, the test stands.

A. E. Dick Howard: Justice Rehnquist, my remedy would be to have a mix of public and private students in the same classroom where you then have an automatic kind of safeguard.

Unidentified Justice: Well, when you're designing school programs, maybe you can do that.

A. E. Dick Howard: Well, let me develop that idea, if I may.

But one thing I think we should get straight on the record of what happened in Grand Rapids... this goes back to Justice Stevens' point just a moment ago.

And that is the question that you put, sir, about the difference between supplemental and core courses.

There's a summarical distinction being offered by the Petitioners in this case.

Now, they have argued that the shared time courses of the community education courses are supplemental to some kind of core curriculum; that they are not required by Michigan law.

Now, this effort to divide the school curriculum into that which is core and that which is supplemental creates a distinction which is nowhere found in Michigan law.

You will search the Code of Michigan in vain for any talk about not only core courses, but any courses at all.

The fact is that in the Michigan Code, not only does the Code not require the courses which are here being labeled supplemental, it does not require any other courses.

So the logic of the Petitioners' argument would lead you to the conclusion that the Grand Rapids School District could, if it liked, other any and all courses now being offered by the private schools in Grand Rapids, excepting I suppose theology or religion.

Similarly, the State Board of Education lays out not requirements as to what must be taught either by the public or the private schools in Michigan.

Justice Powell asked a question earlier about accrediting processes.

In the University of Michigan's accrediting process, there is an accrediting process for high schools only.

There is not requirements laid down as to the elementary schools in this case.

The accrediting agency is the North Central Council of Schools and Colleges.

There is, however, one relevant section of Michigan law that I would call your attention to, and that is a section which says that for a child to be relieved of the obligation to attend public school, one must be attending a private school which offers... and I quote...

"subjects comparable to those taught in the public schools, as determined by the course of study of the public schools of the district in which the non-public school is located. "

So there are two conclusions I would draw about Michigan law.

First is that the supplemental core distinction does not exist.

In other words, each school decides for itself what it thinks to be core and what is not.

The definition, therefore, is totally elastic.

Alternatively, if one turns to the section that I just quoted, if indeed a non-public school must teach those courses

"comparable to the programs offered in public schools. "

that it is not fair to say that the public fisc is not taking over and relieving a private school of courses which it must offer by law, because Michigan law, if read this way, require that kind of comparability.

Either, therefore, one reads Michigan law as allowing the school district progressively to take over the curriculum, or one reads it as saying that the district is in fact fulfilling the schools' present legal obligations.

Either one, it seems, to me runs into the establishment clause problem.

Now, let me turn, if I may, to the argument that... which has been made by the Petitioners... that the shared time elementary courses in this case were not in fact offered by the non-public schools.

In other words, they are in this sense something new, something which had not been offered before,--

That, I maintain, is contrary to the record in the case.

In fact, the non-public elementary teachers of these schools did teach these very subjects, albeit in more limited form.

They were simply not split off as separate courses, but the subject matter was in fact taught.

There is testimony of the superintendent of the Grand Rapids Catholic schools and the principal of the Lutheran school, both to the effect that courses such as art, music, physical education were all taught by the regular classroom teacher.

Then came shared time and these regular classroom teachers now do some of those same subjects, but simply devote less time to them.

Unidentified Justice: How about remedial reading and make-up math?

A. E. Dick Howard: They would have taught remedial reading.

They would have taught enrichment reading, remedial math, enrichment math, within the scope of their ability and their time.

This is--

Unidentified Justice: But no special classes such as these.

A. E. Dick Howard: --That's correct, Mr. Chief Justice.

No special classes.

So it seems to me to suggest that somehow because these classes are being taught as classes, misses the point that these subjects would be taught in some fashion in the regular classroom.

Unidentified Justice: Mr. Howard, in this regard, is the Grand Rapids case different from the Title I case that we were about to hear later this morning?

A. E. Dick Howard: Well, Justice O'Connor, it seems to me that the Grand Rapids case has yet more indicia of a public school system taking over the functions of a private school, because in the Title I case, all of the programs there are remedial.

In the Grand Rapids case, one has not only remedial courses, but enrichment courses as well, a much fuller spectrum.

Indeed, it might be worth noticing that in addition to the courses which are on appeal in this case, elementary school remedial math and enrichment match and reading, and art and music and physical education, that the Grand Rapids shared time program has offered an extraordinary range of subjects at both the elementary and high school level, including things like journalism, Spanish, French, year book, quite a remarkable list of courses.

Those, of course, would not be involved in a case such as Title I.

Consider, if you will, the benefits which flow from this program as I've described it, to the private schools in Grand Rapids.

To the extent that classes are created, separate classrooms in which one teaches art, music, physical education, remedial subject, and enrichment subjects, to that extent the regular classroom teacher can spend more time with fewer students, doing a more efficient job of that which the school has hired that teacher to do.

And that which the teacher is hired to do is to teach courses in a religious context and a religious setting.

I would submit, therefore, that this effort to draw some kind of meaningful line between core and non-core simply has to collapse on the facts of this case.

Let me turn now, if I may, to the Petitioner's argument that all non-public school children had the opportunity to participate in the challenged programs.

I take this to be a variation the equity or child benefit theme; that the program is somehow a program of benefit for children and not for schools.

The fact of the matter, in this case it is the schools and not the parents and not the children who make the decisions about going into or not going into this program.

In the first place, each non-public school decides for itself whether or not to accept shared time with community education classes at all.

Secondly, having made that decision, each school decides for itself which of those courses it wants.

Thirdly, once those courses are in operation, it is the regular classroom teacher who teaches math and reading who will decide which students are to be offered to the shared time classroom.

So at every important decisionmaking point in the chain, the decisions are not those of parents, not those of individual students, but decisions of the schools themselves.

Unidentified Justice: Is that different from Title I programs, Mr. Howard?

A. E. Dick Howard: Well, Justice O'Connor, I think there is some of the same opportunity in Title I for a non-public school to opt out of the program if they see fit, and I can't, on the face of it, see a dispositive difference there.

Unidentified Justice: Well, Mr. Howard, the classroom teacher can't force the student into the--

A. E. Dick Howard: Justice White, that's quite correct.

Unidentified Justice: --So there is a choice by the student and the parent.

A. E. Dick Howard: Well, not really.

Unidentified Justice: Well, they have the choice to turn it down; right?

A. E. Dick Howard: If the... turn it down by whom, the school or the--

Unidentified Justice: No.

Doesn't it... I thought you said the student could refuse to go.

A. E. Dick Howard: --No, I'm sorry, sir; I didn't say that.

I said that--

Unidentified Justice: You mean that the school... the classroom teacher can assign and require the--

A. E. Dick Howard: --The regular classroom teacher, the private school teacher decides which of his or her students need remedial work--

Unidentified Justice: --Exactly.

A. E. Dick Howard: --or would profit from enrichment work, and sends those children to the public employee who is teaching shared time courses.

Unidentified Justice: So, again, could the student or the parents of the student say sorry, but we do not want the child to participate in that program?

A. E. Dick Howard: That would be a negotiating process, no doubt, between parents and school.

Unidentified Justice: Well, there isn't there an answer, yes or no, to that?

A. E. Dick Howard: The answer is yes, but.

Unidentified Justice: Yes, but what?

A. E. Dick Howard: And the yes, but... the "but" part is that if the regular classroom teacher thinks that the student would not benefit and therefore doesn't send that child for it--

Unidentified Justice: Then he can't go in.

A. E. Dick Howard: --That's right.

Unidentified Justice: But if he says here's one that should go in, the student can say, and his parents can say, sorry, we don't want him to.

A. E. Dick Howard: The parent could say no to that.

Yes, sir, that's correct.

Unidentified Justice: That's all I really wanted to know.

Mr. Howard, are the books and instructional materials used in the shared time program provided by the State?

A. E. Dick Howard: Yes, sir; they were.

Unidentified Justice: Does Michigan approve textbooks and classroom materials?

A. E. Dick Howard: Michigan has, as I understand the State system, a very decentralized sort of educational system.

There are a few states in which textbooks are approved at the State level.

Unidentified Justice: That's true in Virginia.

A. E. Dick Howard: True in Virginia, true in Texas, true in some others.

My understanding in Michigan is that those choices and those approvals would be made by local school districts subject to the general supervision of the superintendent of education.

Unidentified Justice: There's some flexibility in Virginia for local school boards to make choice of additional text material, but it has to be approved by the State.

A. E. Dick Howard: As I understand Michigan, it's striking in the degree of autonomy it gives to its local school districts.

Milliken v. Bradley, for example, turned on that very point.

Unidentified Justice: But the material used in the shared time program is approved by their local school board?

A. E. Dick Howard: And are therefore approved by the public authorities.

Yes, sir; that's correct.

Unidentified Justice: The same material used in both public and private schools.

A. E. Dick Howard: That would be correct.

Just as the teacher who teaches the shared time course will be teaching essentially the same course, whether he or she happens to be in a public school or happens to be in a private school.

Yes, sir; that's correct.

Let me turn, if I may, to another argument that the Petitioners have made.

And that, in effect, is that there is not a narrow class of religious beneficiaries.

And this is another variation on the child benefit argument, the argument being that there is no preference being given to religious students, because the same subjects are available through the public schools to students there; that there's a comparability in terms of subject matter.

I think it's simply not fair to say that there's one class.

As I view the program in Grand Rapids, there are two generically distinct classes of students, and therefore two generically distinct programs.

One of those programs is in the public schools, open to all students who take part and teaching the shared time courses.

The other is the program which operates in the religious schools, and which as I mentioned a moment ago, not one public school student has ever attended.

So that program, the second program, the one being challenged here, is one in which there is total identity of the students in those shared time classrooms with the religious persuasion of that particular private school--

And that, I think, makes this a distinct program and therefore, in effect, a double benefit to the private schools.

One has in the first place the enlarging of the school's curriculum, the opportunity for the school to offer additional courses which it might not otherwise be able to fund or might not wish to fund, the opportunity to sort of siphon off the slowest and the fastest students from various classrooms, and have those taught at public expense, but of top of that sort of financial benefit, one has the benefit that this program operates entirely within the religious school, entirely on its premises, and the students who are being taught are entirely of that school, and no mix with any other.

Let me turn, finally, to my third point which is that of excessive entanglement.

This is a claim in the case by the Petitioners that the court below has in effect neglected the record, that there is per se reasoning in the air.

Now, I would like to respond to that by way of suggesting that if this Court affirms the Sixth Circuit, it may do so without resort to hypotheticals or suppositions or profiles or anything outside the record.

It seems to me the actual relationship between the Grand Rapids School District and the private schools being benefited is ample to affirm the decision below.

First, a word about the actual entanglement.

This is not hypothetical or supposed, but the actual relationship which goes on between the Grand Rapids School District and the non-public schools.

First, in the community education program, there is a complete merger of the administration of that program, because the administrators of the non-public schools are hired to be the coordinators of the community education program.

This is true, for example, at several of the Catholic schools in Grand Rapids.

Secondly, as to the hiring of teachers, I think this is a question that Justice O'Connor touched on a moment ago, virtually every one of the community education courses at a private religious school in Grand Rapids is taught by a full-time employee of that school, not by people brought in from the outside, but by teachers already known to be part of that religious community.

Thirdly, as to the assignment of shared time teachers, a fair number of those shared time teachers had been employees of private religious schools, were then hired by the--

Unidentified Justice: What percentage, Mr. Howard?

A. E. Dick Howard: --About 10 percent, Justice O'Connor.

Something like... it depends on which programs we are counting... between 10 and 13 in absolute number, or about 10 percent of the shared time teachers.

And these teachers were hired by the public and sent back to those same private schools.

Perhaps, most importantly, there is an abdication by the Grand Rapids School District of control over many aspects of the program.

It has no control over the enrollment.

It can refuse to offer the program, but once it's offered it, the decision as to which students will be enrolled are the decisions at the outset of the schools themselves.

Unidentified Justice: How would abdication tend to prove entanglement?

A. E. Dick Howard: It would mean that you're taking public money, public programs, putting those programs into the hands of religious authorities, letting them make decisions about allocation of resources, which seems to me a classic case of entanglement.

There are also actual entanglements in the days of operation, the hours of operation.

School holidays are basically worked out by the private school.

Parent-teacher conferences are worked out by the private school.

The public really has no control over that.

The cases of this Court have made statements that the State must be certain that the State aid does not result in religious inculcation.

Now, one need not resort to that language, though it is the language of the cases.

However one characterizes that obligation, it seems to me there is no escaping that the State has an affirmative obligation, once the Plaintiff has shown that there are facts giving rise to a sufficient danger of forbidden effect.

And I would characterize it somewhat as follows.

The more pervasively the sectarian school, the greater the benefit conferred by the State, the more closely related the aid to the school's instructional process, as these courses are, and the greater the actual entanglement of the kind I've described, then the greater the duty imposed upon the State to ensure that and show that it's ensured that the forbidden effect does not come to pass.

In the Everson case in 1947, the Court said the following: Neither a State nor the Federal Government can openly or secretly participate in the affairs of any religious organizations or groups, or vice versa.

The Grand Rapids program violates this injunction because there is concurrent jurisdiction and shared responsibility.

Recently, this Court, in Larkin v. Grendel's Den, cautioned against... and I quote...

"the mere appearance of a joint exercise of legislative authority by Church and State because of the significant symbolic benefit to religion. "

In the Grand Rapids program, we have not only the appearance, but the fact of a joint exercise of authority by religious schools and public authorities over programs which are publicly funded on those schools' premises.

Unidentified Justice: But the facts are quite different, are they not?

In Grendel's Den, it in effect gave the local parish priest the veto over liquor licenses, quite a long step for this point, isn't it?

A. E. Dick Howard: Mr. Chief Justice, I'm simply drawing upon the principle that lies behind the Grendel case, which makes it clear that when you merge authority over decisions in the public arena, you've entangled Church and State.

And I would suggest that the analogy in this case is the merger is so many points of operation of this program.

Let me finally dwell on this point.

To put all these pieces together, I would like to argue that this case should not turn either on isolated facts or on sweeping generalizations about the Grand Rapids program.

We should look, as the Lemon v. Tilton... Kurtzman case has instructed, to the program's cumulative impact, not simply a piece at a time, but all of it put together.

Consider, if you will, the cumulative impact of the following factors: First, that public employees at public expense; secondly, teach on the premises of pervasively sectarian schools; third, that they teach courses of substantive instructional content, involving ongoing student-teacher contact; fourth, that there is no mix of students... the students are all of the same religious school; fifth, that we're talking not about college students, but about students at the most impressionable age, the elementary schools; sixth, that some of these courses, community education, are taught by full-time teachers of the same school; seventh, that it is the school and not the parents or the students who decide what will be offered; and finally, that there is the appearance and the fact of a joint exercise of authority.

My submission, therefore, would be that this program in Grand Rapids has become, for all practical purposes, a functional part of the religious schools' curriculum and instructional program.

And it's hard for me, therefore to imagine a more palpable violation of the establishment clause of the First Amendment.

Chief Justice Warren E. Burger: Very well.

Did you have anything further, Mr. Ripple?

Kenneth F. Ripple: Yes, Mr. Chief Justice.

This case is not only a religion clause case, but it also a fairness case.

Like many very complex legal matters, it can be reduced to elemental principle.

There are two in this case.

Plaintiffs have the burden of proof.

Cases ought to be decided on a record of trial.

Now, with respect to matters which have arisen over the last few months, first of all, there is no art, music, or physical education course in these schools before the shared time program... kids did draw pictures.

Kids did sing in the non-public schools, and they did play in the playground at recess.

But we are not talking about programmatic instruction with a specialist teacher, and those programs are in this record of trial.

The case law of Michigan does establish a core curriculum.

Statutes ought to be interpreted by virtue of the State case law.

It is not true that the non-public school teachers said who was going to be in those remedial classes.

An independent screening was done by the public school teacher to determine who would be in those classes.

There was one class of people here, two methods of delivery because of the physical necessity of dealing with kids at two different locations.

With respect to the teacher hiring, it is important to remember that every shared time teacher was hired by the independent hiring process of the public schools which, under the union rules, require them to take the laid-off public school teachers first, and then applicants second.

There were, at most, 10 percent of the teachers in the shared time program had any denominational teaching experience.

At most.

It's somewhat less because the high school programs are not involved in these cases.

Today, we have seen the Respondent basically take the same position the Court of Appeals took; that this pervasively religious atmosphere... these are not the schools Bing Crosby dealt with in Bells of St. Mary's... they are modern educational facilities.

But the record shows there was no religion taught in these schools, that there was no religious inculcation.

The record shows that these schools were relieved of no ongoing responsibility.

The record shows that in fact, while there were relationships between public and non-public, there were in fact no impermissible entanglement.

ORAL ARGUMENT OF KENNETH F. RIPPLE, ESQ. ON BEHALF OF PETITIONERS -- REBUTTAL

Unidentified Justice: Mr. Ripple, Professor Ripple, you feel the record here is different from that in the recently decided Missouri case.

Kenneth F. Ripple: We believe the record in this case does, in fact, substantiate that the relationships here were so structure so that this was a professional working relationship which, in fact, did not... which did not and could not overstep the bounds of impermissible entanglement, Mr. Justice.

Unidentified Justice: Would the decision here govern and control the Missouri case if that ever comes--

Kenneth F. Ripple: We do not believe that it ought to.

We believe that this case should be decided on the record.

Unidentified Justice: --So that the Missouri case might go the other way on its facts.

Kenneth F. Ripple: We do, sir, because we believe that what has happened here is the people of Michigan have established and structured a program which is good for them.

Unidentified Justice: I want to be sure of your concession in that respect.

Kenneth F. Ripple: And we believe that in that respect, they have a constitutional right to live with their good planning.

Mr. Chief Justice, thank you.

Chief Justice Warren E. Burger: Thank you, gentlemen.

The case is submitted.

Featured:

Aguilar v. Felton - Oral Argument

Fri, 31 Aug 2012 18:30:01 +0000

Case:

Aguilar v. Felton

Media File:

84-237_19841205-argument

Related Transcript:

84-237_19841205-argument

Transcript:

ORAL ARGUMENT OF REX E. LEE, ESQ., ON BEHALF OF THE APPELLANTS

Chief Justice Warren E. Burger: We will hear arguments next in Aguilar against Felton and consolidated cases.

Mr. Solicitor General, I think you may rest.

I think you may proceed whenever you are ready, Mr. Solicitor General.

Rex E. Lee: Mr. Chief Justice, and may it please the Court, at issue in this case is the constitutionality of a key feature of Title 1 of the Elementary and Secondary Education Act of 1965.

Over the 19 years of its existence, Title 1 has been universally recognized and hailed as the largest and most successful federal educational effort.

The Congressional objective was to break the poverty cycle at its most vulnerable point by providing supplemental remedial educational services, such as remedial reading and remedial math, to children who meet two qualifications.

The first is educational deprivation, which means performance at a level below normal for their age, and the second is residence in an area that has a high concentration of families with incomes below the poverty level.

Pursuant to Department of Education regulations, Title 1 programs are administered by local public school boards denominated by the regulations as local education agencies.

One thing that is not at issue in this case is that Title 1 is a program that works.

Everyone agrees that children at all levels have experienced significant measurable advances thanks to the benefits of this program.

The Court of Appeals which held it unconstitutional described it as a program that apparently has done so much good and little, if any, detectable harm, and the appellees agree, having acknowledged it as a good and successful program that has contributed substantially to the educational needs of educationally deprived children.

Justice Sandra Day O'connor: General Lee, these programs are offered nationwide.

Are there some around the country that are not offered on the premises of the private schools?

And would you be able to characterize the extent to which other programs under Title 1 are offered within public schools?

Rex E. Lee: Those that have had experience with Title 1, Justice O'Connor, have almost universally come to the conclusion that off premises just doesn't work, that it is educationally unsound.

I am informed by my colleagues at the Department of Education that there is one special circumstance in one school district that has been able to make it work because of special circumstances.

The Department of--

Justice Sandra Day O'connor: Is there then only one school district in the nation that is offering it?

Rex E. Lee: --I am not certain that that is the case.

I am only aware of one where it in fact has been able to work.

Now, I should add this, that in a study done by the Department of Education in the State of Missouri, and this quote is in the brief, and of course the study itself is in the record, the Department of Education based on that study raised the question whether off premises Title 1 services could ever really be comparable as Congress declared that it should be.

And the facts of this case demonstrate why that is a problem.

There are theoretically four possible time and place combinations available to any local education agency that is charged with the responsibility of seeing to it that Title 1 programs offered to nonpublic schools are comparable to the programs that are available to public school children.

Those four combinations are off premises during the regular school hours, off premises after hours or before hours, on premises during the regular school hours, and on premises after hours.

During the 1965-66 school year, the New York City Board of Education explored all three of the other alternatives before settling on the one at issue in this case as the only one that was educationally sound.

Its experience with the two after hours options demonstrated them both to be what the board described as a total failure.

The students were tired.

The parents were concerned about safety.

There was something of a stigma effect because the students, many of them concluded that they were being punished because they were required to stay after school, and communication between Title 1 teachers and the regular classroom teachers was virtually impossible.

We turn now to the off premises options, which is more directly responsive to your question.

What New York found was that in addition to those problems that characterized the after hours problems, and there are some of those, because any time you go off premises you consume prime time that ought to be used for study, and prime time is particularly important when you have students whose motivation is in any event below average.

It is particularly important that it be used for study purposes.

But the other problem with off premises, unless it is just very, very close, is the cost.

In order to pay the transportation and other noninstructional costs in the case of this particular program would have consumed about 42 percent of the total nonpublic Title 1 budget for the City of New York, and that would have meant that about 5,000 children in New York City would have been deprived of Title 1 services.

It literally would have been a trade of bus services for Title 1 services.

And since the Department of Education has consistently interpreted the equal expenditure provision as requiring that instructional services be equal, most of the children eliminated from the program in order to pay these noninstructional costs would have been public school students.

In short, the New York City Board of Education was bound by the Congressional mandate to provide comparable services to children attending public and nonpublic schools.

This Court in Wheeler versus Parrera held that the plenary responsibility for determining whether the nonpublic program did or did not comply with the comparability requirement set by Congress was to be vested in the local education agency, and that is exactly what the New York Board of Education did, and its selection of the option which would fulfill that obligation was based purely on educational considerations.

The board's actual experience showed what common sense would in any event have confirmed, that children learn better when they are not tired, that they can learn better in a classroom than they can on a school bus, and that money and time spent for transportation doesn't do much to remedy reading or math deficiencies.

This case is different from others that have previously come before this Court in that we are not left to speculate about how the program might work.

This one has been in existence for over 18 years.

The case was tried based on an extensive record developed before an earlier three-judge District Court in a case called the Pearl case, and on selected additional affidavits and documents.

Justice William J. Brennan: And what has happened to the Pearl case?

Rex E. Lee: The Pearl case, Justice Brennan, went to a decision by the three-judge District Court, including findings, and then the appellants... and it was favorable to the program.

It was held constitutional.

Then the appellants in that case failed to perfect their appeal to this case, so it became res judicata.

Unidentified Justice: Did they try to appeal it here?

Rex E. Lee: Yes, but it was a technical deficiency in the--

Unidentified Justice: Dismissed for want of jurisdiction?

Rex E. Lee: --That is correct.

Unidentified Justice: Because of failure to meet deadlines?

Rex E. Lee: That is correct.

That is exactly correct.

Then this case was tried on the basis of the Pearl record plus additional affidavits, so we have the unfortunate circumstance where in my experience it is the first time that you have findings by two separate trial courts, and those findings are identical.

The Pearl court, for example, found that in compliance with the extensive Title 1 regulations, New York had established what it called a well defined dichotomy between purely secular instruction and activity subject to religious influences, and those findings were confirmed by the findings of the District Court in this case, and I quote,

"The concerns of the Meek court about the potential for the unconstitutional mingling of government and religion in the administration of this type of program have not materialized. "

These findings are buttressed by uncontradicted evidence in the record that the services are provided in religiously neutral locations.

There have been no instances of Title 1 teachers being pressured or influenced by private school personnel, and no instances of Title 1 teachers advancing religion.

I would like to make two comments with respect to these findings by two separate trial courts.

The first is that they really only confirm what in any event a common sense examination of these programs would have told us.

Even if we could ignore what actually happened, this just isn't the kind of case that raises serious risks that government is going to establish a religion.

This is not a case like Lemon versus Kurtzman where church personnel are teaching across a broad spectrum of subjects.

These are public school teachers.

Their job is to teach supplemental remedial courses.

Their task is difficult.

It has a narrow focus.

And it supplements the core curriculum.

Just how is it even if the record didn't show otherwise that religious indoctrination is somehow supposed to infiltrate this process.

Is the danger that public school teachers might teach religion?

If that is the supposed risk, why have the appellees failed to uncover even one single instance in which that actually in fact occurred over the almost two decades the program has been in existence?

And in any event, the argument proves too much, because the risk is just as great when public employees teach in public schools.

Well, if that is not the risk, is it the danger that the nonpublic teachers will, once these public professionals come on with their... somehow block these public teachers and indoctrine them?

Surely the courts' decisions suggesting a distinction between aid to elementary schools and aid to colleges would teach that indoctrination of other adults is not the risk with which this Court's establishment clause jurisprudence is concerned.

Those distinctions apply a fortiori when it is not college students but college graduates, professional teachers.

In short, there is an air of unreality about the notion that this program is a candidate for serious problems of religious indoctrination, and the actual record completely belies the notion that extensive surveillance was required on that it actually occurred.

Unidentified Justice: Mr. Solicitor General, what if it turns out that the Grand Rapids program is stricken down under the First Amendment?

What bearing do you think that would have on this case?

Rex E. Lee: Well, I would hope that in that very unfortunate event that the Court would not err twice.

0 [Generallaughter.]

Unidentified Justice: You think the Title 1 program is realistically distinguishable from the Grand Rapids program for constitutional purposes?

Rex E. Lee: Of course it is.

The distinctions that I would suggest are not controlling and should not be controlled.

There are a couple of distinctions, and I think they were adequately brought out in the previous argument.

It may be a little easier to identify these as supplemental and as non-core, but that is only because of this happenstance.

There is a statute, and it is cited at... a section of the statute.

It is Section 3807(b) of the statute, which specifically requires, which specifically prohibits any of the Title 1 funds being used for regular curriculum purposes, and it cannot be used to provide services that are not otherwise available, and if they are used for those purposes, then we sue to get the money back.

We have done it before, and we have another case that will be here later this year involving, in this instance, services that are used for... that were otherwise available, but the lesson that comes from that is not that the Grand Rapids program is bad and ours is good.

It is rather that the... that this rather clean analytical framework has been provided where you have a federal government that is not in the education business and therefore must necessarily superimpose its remedial program on an existing program as demonstrating the clean distinction between remedial programs on the one hand and core curriculum programs on the other.

But that distinction should be no less available to a state that does not have a similarly clean analytical framework because there is just as much of a distinction between remedial programs and non-remedial programs.

Now, there is one other distinction, and it is not one that is dispositive, but it is certainly one that... well, I think it is persuasive, and that is that these... that this is, after all, a Congressional determination that we are dealing with.

Surely a Congress... well, in the final analysis the issue here is whether Congress can require that its benefits be spread equally.

Justice William H. Rehnquist: You mean a Congressional determination as opposed to a state determination?

Well, I think that would be the ultimate irony, that you would take the religion clauses of the First Amendment which by their terms apply to Congress and only through the adoption of the Fourteenth Amendment have been held to apply to the states and now say they apply with greater force to the states than to Congress.

Rex E. Lee: I do not mean to suggest, Justice Rehnquist, that that is a distinction between this case and the Grand Rapids case.

I simply mean to suggest that whether in the context of either a Congressional determination or a determination by the Grand Rapids school board that we are dealing here basically with policy judgments that are entitled to be upheld, and I would like to explain what the basis for that is.

We have here a problem that has been faced by three separate branches of government at two different levels of government.

On the one, from the legislative branch, Congress has made its basic policy decision to spread the benefits of this program equally between public and nonpublic students.

A local executive agency has done a commendably conscientious and thorough job of administering that decision, of implementing that decision consistent with sound educational practices and two separate trial courts have found that the concerns hypothesized in other cases have not materialized in this one.

If the judgment of the Court of Appeals is affirmed, the comparability requirement acknowledged by this Court in Wheeler will still be in place, as will most aspects of Title 1.

The consequence will not be, as Mr. Geller argues in his brief, that all those Title 1 funds will then simply be transferred over to the public sphere, because if the Court of Appeals is correct that it is the on premises function that renders it unconstitutional, you still have in place the Congressional determination that these programs must be equal, but with the one option that has been demonstrated to be educationally sound, the most educationally sound and available.

So that the result will be a program which still serves both public and nonpublic children but serves fewer of them, some of them not as well, a program which will expend scarce dollars and student time on bus rides instead of remedial instruction.

Now, all of that, we are told, is required not because of anything in this record, but because this Court held, laid down in Meek versus Pittenger a per se rule that requires us to ignore the actual facts of the particular case, and instead erects a per se rule that any on premises instruction constitutes an establishment of religion, and the Court of Appeals simply misread Meek versus Pittenger.

This Court made it very clear in Lynch versus Donnelly that the Court has consistently declined, and I am quoting,

"to take a rigid, absolutist view of the establishment clause, and that in each case the inquiry calls for line drawing. "

"No fixed per se rule can be framed. "

Unidentified Justice: Was the entire Court in agreement with your statement just made?

Rex E. Lee: Lynch versus Donnelly, as you indicated, Justice... as you implied, Justice Blackmun, was a five-four decision.

But it was, of course, a holding of the Court.

Moreover--

Unidentified Justice: But that is a factual statement that you are making.

Rex E. Lee: --Excuse me.

I guess I misunderstood the question.

It is correct that Lynch versus Donnelly was a five-four decision, and I have correctly quoted from the Lynch majority.

In Meek there was no actual experience, and here there is.

We would not be in this courtroom today, moreover, if the Constitution prohibited all Title 1 services on parochial premises because such a rule would have been dispositive when Title 1 was before this Court in 1974 in Wheeler versus Barrera.

Rather than deciding for all time and all purposes that on premises instruction was mandated by the First Amendment, this Court rather carefully outlined... declined to reach that issue on that case specifically for this reason, that it would be wholly inappropriate for us to attempt to render an opinion on the First Amendment when no specific plan is before us.

A federal court does not sit to render a decision on hypothetical facts, and the Court of Appeals was correct in so concluding, and I believe that that is also a rejection of a per se approach in these establishment areas.

Moreover, perhaps even more helpful is an example that the Court used in Wheeler versus Parrera in which it gave some of the types of problems, some of the types of possibilities that might be considered by a local education agency in performing its responsibility to assure that these programs were comparable, and I am quoting.

"For example, a program whereby a former parochial school teacher is paid with Title 1 funds to teach full time in a parochial school undoubtedly would present quite different problems than if a public school teacher solely under public control is sent into a parochial school to teach special remedial courses a few hours a week. "

Now, that was not a ruling on the constitutional issue, but it does identify a range of possibilities that might be considered, and it precisely describes the Title 1 experience, which is presumably at the permissible end of that range.

It is difficult, I submit, to see how in this case, on this record, there has been any establishment of religion.

Certainly none has been proven.

And even the Court of Appeals recognized that it depended on its view of Meek versus Pittenger to reach that conclusion.

It is also difficult to see that there has even been any injury to what might be called establishment clause values, and most difficult of all to perceive how those values are possibly enhanced by making such a successful program more cumbersome, more expensive, and less effective.

Justice John Paul Stevens: Mr. Solicitor, can I ask this one question about any possible impact on establishment clause values?

This is the case, I believe, in which there is the desanctification of the classrooms.

They must remove religious objects from the classroom.

Do you think that if a religious school is told that you can have some money or some public benefit if you take down some religious objects from your classroom, that that has any impact at all on--

Rex E. Lee: No, Justice Stevens, I really don't, for this reason.

That really isn't the way the option is put to them under the Title 1 program.

Justice John Paul Stevens: --But it is a condition, is it not?

Rex E. Lee: Well, I don't know whether it would be constitutional and therefore acceptable to the Title 1 administrators if there were or were not... the religious objects were or were not removed, but that is a decision that the parochial schools have made in making their application, and I think this Court has observed on a number of occasions that we have to be a bit sensitive about not getting, on the one hand, what is demanded by the Constitution, what is demanded by the Constitution, and on the other hand what is permitted by the Constitution, so close that there isn't any room to steer between that Cylla and Caribda, and frankly, it is almost a damned if you do and damned if you don't option that is left to the church school.

I know my opponents make this point, but I just don't find it that persuasive.

I think that is their judgment.

It is their judgment to make an application for these Title 1 funds, and I think it lies within the proper scope.

Unidentified Justice: I take it your answer in effect is, your response is that if the religious symbols were left in the room, your adversaries would hammer you with that fact, and therefore at most removing them neutralizes the problem.

Rex E. Lee: Of course.

That is exactly right.

Unidentified Justice: In this connection, do you have any comment on the Missouri case?

Rex E. Lee: I agree with Mr. Ripple, Justice Blackmun, that the Missouri case, like all cases, will stand on its own facts and on its own record.

Unidentified Justice: So that if you prevail here, that does not necessarily mean you will prevail in the Missouri case.

Rex E. Lee: That is correct.

That case will have to be examined on its own facts and its own record, and I am not sufficiently familiar with the Missouri case at this point to express an opinion.

Unidentified Justice: Well, you sent a copy of it up here, as did your opponents, and at least a cursory review of it would indicate that things were done in the Missouri case which you claim are not done here.

Rex E. Lee: I think that's correct.

I think that's correct.

Let me just--

Unidentified Justice: At least that shows the possibility of abuse.

Rex E. Lee: --And you have laid... you have put your finger, Justice Blackmun, on what I think is the most important key in this case, and that is that consistent with what the Court said in Wheeler versus Barrera, these cases have to be approached on a case by case basis.

You also said in the Rohmer case... excuse me, in the Regan case that in a slightly different context the parties had simply misread Meek when they read it to apply a per se rule, and that, I think, is the most important principle to come out of this case.

It would be a real travesty if under the religion clauses the net result of this particular litigation would be to convert such a successful program into one which deprives thousands of needy children of all Title 1 benefits all because the parents of some of those children exercised their First Amendment rights.

Unless the Court has further questions, I will reserve the rest of my time, Mr. Chief Justice.

Chief Justice Warren E. Burger: Mr. Geller.

ORAL ARGUMENT OF STANLEY GELLER, ESQ., ON BEHALF OF THE APPELLEES

Stanley Geller: Mr. Chief Justice, and may it please the Court, I am glad that after about one hour and perhaps 15 minutes somebody who stood up to argue before you mentioned Meek against Pittenger.

I thought that was never going to be mentioned, because the appellees do not come before this Court in a void.

There have been decisions by the Court not only in Meek but in Marburger and there is the rationale of the decision in Lemon against Kurtzman and the rationale of the decision in Wolman against Walter that firmly support the position that the appellees took in this case.

And while we are mentioning that there were two lower courts that decided on the New York City Title 1 program before the Court of Appeals did so after an alleged trial record, keep in mind that the trial, the so-called trial in this case consisted merely of the submission of written affidavits.

There were no witnesses.

There was no credibility.

The same affidavits were before the Court of Appeals, and the Court of Appeals unanimously decided otherwise than the District Courts on the same record, and with the same ability to do so.

Justice William H. Rehnquist: Did the Court of Appeals reject findings of fact that had been made by the District Court?

Stanley Geller: The Court of Appeals did not reject the findings of fact.

It rejected the conclusions that were drawn from those findings, and I will go into the findings of fact because I don't believe that this so-called record supports the position that the government and the board of education and the intervenors take in this appeal, and I will tell you why.

But first, let me say this about the benefits of the statute.

We agree with the appellants that this is a good statute and a good program, and it benefits needy children, and there need be no change in that.

I am amazed that the Solicitor General gets up and says that if you should strike down this program, that it will affect thousands of children.

It need not affect one, and I pointed that out in my memorandum, and it was not countered by the appellants in their memorandum.

There have never been enough funds in the Title 1 program to provide for all of the eligible children in the program, so that if the... and just confining ourselves to the New York City program, if you took the 20,000 children, and that is the total of it, who are now in that program, in the parochial schools mainly of New York, if you took them out of the program, you would be able to use those funds to provide the benefits to 20,000 eligible children in the public schools of New York who now do not receive the benefits of the program.

In other words, the only thing that stops this, of course, is that the statute says that the aid must be provided equally, but I cannot believe that the Administration and the Congress, faced with a purpose, which I understand to be their purpose, to provide aid to needy children, would then waste money trying to get, if this Court struck down the program, waste money trying to get services to needy children in parochial schools when they could take the same money and provide the same needy children in the same school district with the full benefits of the Title 1 program.

If this Court struck down this program as it is now applied, it need not, if Congress acts rationally, which I would assume it would do, affect the purpose of Congress, which is to provide aid to needy children.

Unidentified Justice: Do you mean that if Congress takes some additional action, this result which you describe will prevail?

Stanley Geller: Yes, I do, Your Honor, and what I cannot believe is that faced with a report from the Administration and from the Solicitor General that the program just doesn't work off premises, that Congress would insist on wasting money trying to deliver aid to the needy children in parochial schools when they could supply the same aid to needy children from the same background who happen to be attending public schools.

And, Your Honor, I really do not accept the presumption which is made in this case that the parochial school students in New York City go to their schools primarily even because of their religious beliefs.

They are going to private schools because their parents perhaps don't want them to go to public schools, and if the aid were changed in this case, Congress would achieve its educational purpose.

It might not achieve a purpose.

It might not achieve a purpose that runs afoul of the establishment clause, but it could surely achieve its educational purpose 100 percent in the way in which it is achieving now.

The only question... the question... I won't say the only question, but the question that then arises may arise under the equal protection clause or the preexercise clause, but I understand that this Court has decided that when it decided that no state need supply every service to parochial schools that it supplies to private schools.

Let me go to the question of the record in this case and what it professes to show, however, but let me start by saying what I understand and I think is conceded about what this Court determined in Meek and Marburger, and again in... really in Lemon and Kurzman.

This Court decided all of those cases and the statutes and the programs in those cases on the face of the statute.

It held that it had sufficient common sense, as the Solicitor General argues, and the experience to know that when you place teachers and counselors on the premises of public schools, you have created a grave potential that they would in some manner foster religion, and the manner in which they do that I will come to in a moment.

It is not in the way that the Solicitor General mentioned.

And the Court said further, the only way you can avoid that potential danger is to have an almost inquisitorial surveillance, one which is so comprehensive and discriminating and continuing that the surveillance in itself would bring about an excessive entanglement that was an evil as great as the evil it sought to guard against, that of government fostering of religion.

I don't... let me add just one thing.

The Court said, and this was a corollary, that surveillance was, as far as it could see, the only way in which you could avoid this government fostering of religion because you could not rely on the good faith and the professionalism of the teachers.

On that score, I would like to make one further point.

Some distinction appears to be attempted to be made between Lemon and Kurtzman and Meek, because in Lemon and Kurtman the teachers were religious school teachers, and somehow the idea is that you could not accept the word of a religious school teacher that he would not engage in some act that would foster religion, but you can accept the word of a public school teacher.

I don't think that makes any sense at all, and that in fact when it comes to award, you might well be more willing, if anything, to accept the word of a devoted nun, brother, priest, that he would not violate the establishment clause than that of any public school teacher.

In this case, the present case, the appellants come before you and they say you were wrong deciding Meek and Marburger and Lemon facially because now you have before you 18 years of actual experience.

They say that the record shows that there is no evidence of an actual fostering of religion primarily, primarily by specific overt acts of teachers or guidance counselors actually inserting religious matter into their teaching.

The same record, however, shows you that you don't have any evidence of a real system of surveillance that the Court said in Meek and Marburger and Lemon would be required to detect that evidence of government fostering of religion and to guard against it.

So, in the record that you have now before you, you are still being asked to rely on the good faith and professionalism of the teachers, because the only way, the only way you would have got the evidence of impermissible conduct on the part of the teachers and counselors was that if they committed these detectable acts of impermissible conduct, they would have turned themselves in.

There is no other way short of surveillance, of getting any such evidence.

You either have to get it from the teachers and the guidance counselors themselves, or you don't get it, and that is why in this record... that is why this record is no proof that the Court or the majority of the Court were incorrect in deciding Meek and Marburger and Lemon facially.

On the record also, and the appellees argue, point out to you that the Court of Appeals held that this statute has done much good and little detectable, little detectable harm.

Now, I put it to you that the kind of fostering of religion that this record would show is not the kind in which you would actually find overt specific acts injecting religious matter into teaching.

The kind of harm actually lies elsewhere, and that is why in our papers we argue the fact that actually the main test to be applied here or a main test is the primary effect test, because what you have here is a kind of aid to religion which does not lie in the specific or overt act, but lies in the simple fact that you place public school teachers and guidance counselors on the premises of public schools and allow them to teach there.

How is that done?

Unidentified Justice: Private schools.

Stanley Geller: Yes.

Unidentified Justice: On the premises of private schools.

Stanley Geller: On the premises of private schools.

How is that done?

This Court has decided before that the placing of instructional equipment and materials on the premises of parochial schools, religious schools in itself would be impermissible, but now you don't have a blackboard, you don't have a piece of chalk.

Now you have a real live teacher.

You have somebody that this Court itself in the past has said is at the center of the educational process, and in addition, you have a remedial teacher.

You have somebody who is... without whose help the remedial students might never be able to progress at all in their--

Unidentified Justice: Are you suggesting, Mr. Geller, that religious dogma could be somehow subtly filtered into remedial mathematics?

Stanley Geller: --Not at all, Your Honor.

I agree with you there, and I would be foolish to argue that you could insert religious dogma into mathematics or... well, the other subjects are easier, because when you have remedial reading, you have broad topics, and when you have English as a second language, you also have a broad scope of topics that you can cover in teaching it so that it is possible.

But, Your Honor, that is not my point.

It would be very difficult, and that is what the Court of Appeals has stated quite wisely, to detect these specific overt acts of injecting religious material into this remedial instruction.

The aid and support that this program, any program of supplying teachers and counselors onto the premises of private schools... parochial schools or religious schools gives to those schools does not lie in the injection of religious matter into the instruction.

It lies in the fact that you are providing someone, a teacher who is... actually can become the school personified.

You have one good, admired, well respected teacher and that teacher is the symbol of the school itself.

So that what the government, what the... is doing in a case of this kind is providing a means by which teachers enhance the image and the reputation of the school, and this is a school that the Court has recognized as a dominant religious mission, and that is the way in which this kind of program aids the religious purpose of the religious schools.

There are concrete ways, however, that are never discussed and can never be detected because you would never find the specific evidence.

In this case you have a remedial teacher teaching remedial students who are the poorest students in the school educationally.

These are students many of whom... most of whom do not like school.

They do not like school, and the the only school that they know, the only school that they know is the particular school to which they are going.

You place a remedial teacher on the premises to give them instruction or a guidance counselor and the guidance counselor is confronted by the remedial student with the fact that he does not like the school.

He says, teacher, this is a rotten school, or Sister Regina, my regular classroom teacher, is a bad teacher.

Or, why do I have to go to... and say religious prayers or attend religious courses in this school, perhaps even when the student is not in a parochial school a Catholic student where the religious prayers and the exercises are mandatory.

What does the remedial teacher do under those circumstances?

The remedial teacher, whose job it is to reintegrate this remedial student back into the regular program of the school, is supportive of the school.

That is not injecting religious matter into the instruction, but what it is doing is supporting the school, a school that has a dominant religious mission.

The remedial teacher says to the student, Willy, whatever his name is, this school has your best interests at heart.

It is going to give you a good education, and when you grow up you will have a good job, and you will be able to lead a good life.

Or, Sister Regina is a good teacher.

She has got your interest at heart.

In every way--

Unidentified Justice: Mr. Geller?

Stanley Geller: --Yes.

Unidentified Justice: Is there anything in the present record that indicates any incidents like these actually happened?

Stanley Geller: No, Your Honor, and that is what the Court of Appeals pointed out, is the reason why there is little, if any, detectable harm.

This is a... these are matters that are not subject to actual proof.

You are not going to get little school children to come in and tell you that they don't like school.

That is something that this Court or any court is capable of knowing.

What I am pointing out to you is not something that this Court has not considered before.

This Court has repeatedly in the cases involving prayers and religious exercises noted that when you take a public representative, a public school teacher, or the public school system, and you lend that system to religious prayers and exercises when conducted in the public schools, even though conducted separately in the public schools, as in McCollum, what you are doing is lending the prestige and the power of the public school system to these prayers and religious exercises that are being stated separately in the school.

The situation is--

Unidentified Justice: That may be the hypothesis of those cases, but I don't think the hypothesis was based on the sort of speculation that you were engaging in.

Stanley Geller: --Yes, Your Honor, it was based on just that speculation.

Nobody came in in McCollum and testified, and testified that the power and the prestige of the public school was being lent to the religious teacher that came into the public school and gave religious instruction within the public school.

That was a fact that the Court could assume on the basis of common sense and experience, and it did.

There is no proof, there is no proof that the public school system lends its power and prestige to anything.

I don't see where you would get that concrete proof in the record.

And what the Court did in McCollum we say the Court should acknowledge and do here.

When you take now the public school teacher and you move him into the parochial school, or you have what the government says is a school within a school, you are once again lending the prestige of the public school system to everything that goes on in the religious school, all of the prayers and exercises, just as much as when the religious teacher came to the public schools.

There is no basic difference in that, and if one is aiding religion, the other is aiding it in the same way.

Consider what the Court did in Meek and Walman that is unquestioned.

The Court said that the mere placing of instructional equipment and materials on the premises of public schools constituted aid to the... private schools constituted aid to those schools and their religious mission.

Merely instructional equipment.

Unidentified Justice: Mr. Geller, these classes go on during... these remedial classes go on during the regular school day, don't they?

Stanley Geller: I understand they do.

Yes, Your Honor.

Unidentified Justice: And I would take it that if they weren't going on and weren't being paid for by the Title 1 funds, they would be... the same hours would be taught by private school teachers.

Stanley Geller: The same hours would be taught by private school teachers.

Unidentified Justice: And these remedial classes relieve the private school of the necessity of filling up those hours.

Stanley Geller: They do more than that.

Unidentified Justice: Well, don't they?

Stanley Geller: They do that, Your Honor, but they do more than that.

Unidentified Justice: Well, I know, but they... it just means they perhaps don't have to have as many professors.

I would think you would argue that it would be... that is a direct aid.

Stanley Geller: I was coming to that, Your Honor.

One of the greatest aids that is performed here is the aid that the remedial school teacher gives to the regular classroom teacher.

Unidentified Justice: It just saves... yes, but I think it... wouldn't it just very likely save the private school some money?

Stanley Geller: It saves the private schools a tremendous amount of money.

I didn't argue that--

Unidentified Justice: Even if the private schools would never put on a course like this, it nevertheless would save them money, because--

Stanley Geller: --In the case of remedial instruction particularly so.

Unidentified Justice: --But even if they do nothing--

Stanley Geller: What you are doing is taking the worst students out of the classes and allowing all of the regular students to move forward.

Unidentified Justice: --Well, I would think if there is X number of hours a week that you used to have a private school teacher to teach, if you no longer have to have a private school teacher to teach those hours, you perhaps can get by with a smaller staff.

Stanley Geller: I--

Unidentified Justice: There is no evidence of that?

Stanley Geller: --It is possible.

There is no evidence of that, Your Honor, but I don't think that you need any evidence to know and to decide that when you... just from the very purpose and the nature of the statute and the program itself, you are taking the worst students out of their regular classes and you are teaching them so that they will be able to go back into those classes and keep up with the classes.

Justice Sandra Day O'connor: Well, Mr. Geller--

Stanley Geller: You are not only aiding the teacher there, but in respect of those students you are aiding the teacher with respect to every other student in the regular classroom.

Justice Sandra Day O'connor: --Mr. Geller, maybe I don't understand the program.

I thought it just took selected students out of some classes under the Title 1 program, and was not in fact reducing the number of teachers required in the private school to do that.

Stanley Geller: I didn't say that.

Justice Sandra Day O'connor: I thought it was taking selected students and giving them some remedial programs.

Stanley Geller: Absolutely, Your Honor.

Justice Sandra Day O'connor: Now, is that correct?

Stanley Geller: That's correct.

And Justice White--

Justice Sandra Day O'connor: It is not reducing the number of teachers required?

Stanley Geller: --It does not reduce the number of teachers, and if it did that, the government as it is doing in the Kentucky case might go after the religious schools and try to get the money back.

I wasn't suggesting that, but that is not the only aid that this kind of program gives to the religious schools.

It is not merely a question that it enables them to reduce their number of teachers, and we don't say so, but it gives great--

Justice Sandra Day O'connor: Mr. Geller, how do you think that the program is generally perceived by the community at large?

Is it perceived as a program to aid disadvantaged children, or a program perceived as aiding religious schools?

Stanley Geller: --I will tell you how I think of that.

When you tell anybody in New York City today, are you aware that for the last 18 years there are public school teachers teaching on the premises of private, religious schools, they are aghast, and there is rarely a person that does not conceive of that as being aid to the religious schools and their mission.

Unidentified Justice: Your answer is, it just isn't perceived at all, either way.

0 [Generallaughter.]

Stanley Geller: It is not perceived... oh, Your Honor, by the parents whose children are going to the religious schools, it is perceived as a program which aids needy children.

By the parents whose children are going to public schools, of course it is perceived as aiding needy children.

But what the vast, vast majority of the citizens of New York City do not know is that public school teachers are the ones who are carrying the program to the religious schools, and if you ask me how they perceive it on the basis of my experience, I tell you they perceive it as using their tax dollars to support a religious school with a religious mission, and they are aghast when they are told about it.

Of course, the parents in each type of school know about the program, but they don't know about the program in the other schools, and they really don't know how it is being carried out.

Unidentified Justice: Mr. Geller, before the noon bell rings, I want to ask you this.

If this case is reversed and the ruling is against you, can the Court make that reversal without overruling Meek against Pittenger in your estimation?

Stanley Geller: I don't think so, Your Honor.

I really don't think so, because I don't think that you have... and that was my main point when I began.

I don't think that you have any facts in this record that can prove to you that the majority was wrong in Meek against Pittenger when it worried about the potential, because there has been no real surveillance.

Unidentified Justice: So that's for the Court to be candid in reversing, it must overrule Meek against Pittenger.

Stanley Geller: I would say, Your Honor, that it would in effect be overruling Meek against Pittenger or, if I may, I think it would be... it would err respectfully in this sense, if it took this record and said that this record was proof that the Court had been wrong in Meek against Pittenger in deciding the statute in that case and in numerous other cases facially, because you have no experience, you have no experience in this case other than an experience which is necessarily based on reliance on the good faith and professionalism of the teachers, which was rejected in Meek, and there is nothing in this record that shows you that you have any more reason to rely on the good faith and professionalism of the teachers and guidance counselors in this case than in Meek.

Chief Justice Warren E. Burger: Your time has expired now, Mr. Geller.

Stanley Geller: Thank you.

Chief Justice Warren E. Burger: Do you have anything further?

ORAL ARGUMENT OF REX F. LEE, ESQ., ON BEHALF OF THE APPELLANTS -- REBUTTAL

Rex E. Lee: Just two brief points, Mr. Chief Justice.

The first is that we have been exposed to a proposed First Amendment jurisprudence that is nothing less than astounding and that would completely turn on their heads these propositions that I had always assumed to be fundamental, that Constitution are presumed to be constitutional, that plaintiffs have the burden of proof, that findings are controlling unless clearly erroneous and cannot be overcome by speculation.

My second point responds to Mr. Geller's suggestion that Congress may change its mind if this Court were to affirm, and to revoke the determination that it has now made or three occasions that these funds should be equal, equally available, those who do and those who do not exercise their constitutional right to send their children to private schools.

And I submit that if that were to be the case, and Congress were to be told that it has no option other than to do that, that that result would be even less consonant with the religion clauses, less consonant with basic separation of powers principles, and the kinds of judgments that ought to be left to Congress, and would be an outrage to principles of basic fairness, particularly given the fact that we are dealing here with a Congressional determination that has been made by a legislative body that has been held to have a wide discretion with respect to its spending power, and that the choice to attend a religious school is itself constitutionally protected.

So that the parents in poverty areas are put really to this option.

They must either give up their right to a religious education or forfeit an equitable and equal share in this program that is purely secular and is purely directed at creating educational equality and has proven to be so successful.

It would be the ultimate constitutional irony if the religion clauses were the source of a rule which put the parents of private school children to that option.

Thank you.

Chief Justice Warren E. Burger: Thank you, gentlemen.

The case is submitted.

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