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WALKER v. SAN FRANCISCO UNIFIED SCH. DIST.

June 5, 1990

ALBERT C. WALKER; ROBERTA WALKER, LEON ILNICKI; JUANITA ILNICKI, JOHN C. SOSO; JACKLYN C. SOSO; MARGARET SMITH, ALYCE CROSDALE, and BETTY SANDS, Plaintiffs,
v.
SAN FRANCISCO UNIFIED SCHOOL DISTRICT, City and County of San Francisco, State of California; BOARD OF EDUCATION OF THE SAN FRANCISCO UNIFIED SCHOOL DISTRICT, City and County of San Francisco, State of California; RAMON CORTINES, Superintendent of Schools, San Francisco Unified School District; WILLIAM HONIG, as California Superintendent of Public Instruction; CALIFORNIA DEPARTMENT OF EDUCATION; CALIFORNIA STATE BOARD OF EDUCATION; JOHN R. QUINN, Archbishop of the Archdiocese of San Francisco, individually and as a Corporation Sole; ARCHDIOCESE OF SAN FRANCISCO; MT. ST. JOSEPH-ST. ELIZABETH; LAURO F. CAVAZOS, as Secretary of the United States Department of Education, 1 Defendants and DEBORAH MARTIN; JACOB PEREA; and BARBARA PEREA, Intervenor-Defendants



The opinion of the court was delivered by: ORRICK

 Plaintiffs, resident California state and federal taxpayers, filed a declaratory relief action against defendants *fn2" alleging that the manner in which remedial educational services are provided to students attending sectarian schools in the San Francisco Unified School District, pursuant to Chapters 1 and 2 of the Education Consolidation and Improvement Act of 1981 ("ECIA"), 20 U.S.C. §§ 3801 et seq.,3 violates the Establishment Clause of the First Amendment to the Constitution of the United States. *fn4"

 The parties filed two sets of cross-motions for summary judgment. The first set of cross-motions addresses the question of whether the San Francisco Unified School District's involvement in and use of Chapter 1 negligent and delinquent funds, as well as California General Education Funds, *fn5" at Simpatico School, violates the Establishment Clause of the Constitution of the United States as well as the prohibition in the Constitution of the State of California against the use of state funds to aid any religious group or institution. The second set of cross-motions addresses the question of whether Chapter 2 is unconstitutional on its face, or as implemented in the San Francisco Unified School District.

 After consideration of the briefs, the numerous declarations, and documentary evidence filed by the parties, and hearing oral argument, for the reasons set forth herein, the Court grants defendants' motion for summary judgment with respect to Simpatico School, grants defendants' motion for summary judgment with respect to Chapter 2, and denies plaintiffs' motions with respect to Simpatico School and Chapter 2. The Court discusses the claims and arguments of the parties with respect to each motion separately, beginning with Simpatico School.

 I.

 A.

 1.

 Simpatico School ("School) occupies the second floor of a building located at 100 Masonic Street in San Francisco that serves as a residential home for pregnant teenage girls. The residential home is one of three "group homes" run by defendant Mount St. Elizabeth-St. Josephs ("Mount"), a nonprofit charitable corporation organized under California law. The Mount is affiliated with the Daughters of Charity of St. Vincent de Paul, a religious organization.

 The Mount provides residential care and psychological counseling to girls who are pregnant, or have emotional and educational disabilities, or both. Some of the girls are committed to the Mount's care by the Department of Social Services and by Probation Departments of counties throughout Northern California. Others are referred by public and private agencies and voluntarily choose to reside at the Mount. The Mount also provides infant care for children of resident girls.

 The girls who attend the School do so because of emotional and psychological handicaps that make it impossible for them to leave the closed-campus environment of the School to attend classes at a San Francisco Unified District ("District") school. Many of the girls were placed in the Mount program because of problems they experienced at their previous open-campus schools. Others, being pregnant and unmarried, are at the Mount to obtain support needed to cope with their pregnancies in an environment where their conditions are not stigmatizing.

 2.

 The School program is conducted Monday through Friday, from 8:45 a.m. to 2:45 p.m. There are presently eight staff members. Five of the employees, who include the Director of Education ("Director") and four teachers, are paid by the Mount. One teacher is paid by the District with General Education Funds for Special Service Centers. One paraprofessional is paid from Chapter 1 negligent and delinquent funds. 20 U.S.C. § 2801. One clerk typist, who works three hours per day, is paid for one hour with Chapter 1 funds, 20 U.S.C. § 2801, and for two hours by the Mount.

 The curriculum mirrors that of the District and is entirely secular. The School does not offer instruction in theology of any faith, either before or after school hours, and it does not require obedience of the girls to doctrines of a particular faith. Teaching religious values is not a part of the curriculum. Only secular books are used. The teachers teach according to objective, secular academic standards. The School sponsors no religious activities, and does not require the girls to attend religious activities. There are no prayers during classes and no prayers during graduation ceremonies. The classrooms are free of sectarian symbols. There are no religious restrictions on the admission of girls and religious criteria play no role in determining who is employed at the School. None of the teachers are members of a religious order. The girls have diverse religious preferences, if they have them at all. The percentage of girls who expressly declared an affiliation with the Roman Catholic Church averaged thirty-three percent during the 1985-88 period. During that same period forty percent of the students expressed no religious preference. Other faiths represented in significant numbers include Baptists and Methodists.

 The School receives no funding from the Daughters of Charity, the Catholic Church, defendant Archdiocese of San Francisco, or from any other religious organization. All funds come from the state, community fund raising, grants, and foundations. The School is not controlled by any religious group, nor does it have as one of its objectives the inculcation of any religion.

 3.

 The District controls all essential operations of the School, and determines the curriculum, academic schedule, number of class hours, and holidays. It ensures that the instruction is consistent with its curriculum requirements by regularly forwarding Weekly Administrator's Directives ("WADs") and Curriculum Guides to the School. The WADs and Curriculum Guides set forth in great detail descriptions of the classes that must be offered and the requirements students must satisfy to graduate.

 The District makes the assignment of District teachers to the School, and evaluates their performance, in cooperation with the Director of the School. As part of the teachers' training, they learn that they are not to advance the religious beliefs of any particular religion. District rules that apply to the School direct that no sectarian or denominational doctrine be taught.

 The School orders its textbooks from a list of state-approved textbooks provided by the District. Educational materials purchased with District funds are purchased directly from the District. Teachers at the School are free to use the District's Teachers Professional Library, to borrow District instructional materials, and to consult with District teachers on work-related issues.

 The School subscribes to high school graduation requirements set by the District, which provide that students are to complete a set number of credits before graduating. The students graduating at the high school level receive diplomas identical to those received by District students.

 The Director of the School performs a role similar to that of a principal at District schools. She is charged with ensuring that the District's curriculum requirements, as set forth in the WADs and Curriculum Guides, are followed. She assists in the District's evaluation of the teachers assigned to the School, just as District principals do. The standards used by the Director in evaluating teachers are found in the Handbook for Performance Appraisal System provided by California's Civil Service Commission. The Director's salary is paid by the Mount, and she reports to both the District and the Mount.

 4.

 As noted above, the central purpose of the Mount is secular, namely, to make available residential care and psychological counseling to girls who are pregnant, or who have emotional and educational disabilities, or both. The legal character of the Mount is purely secular. Its articles of incorporation set forth no religious purposes. They provide, in part, that the "specific and primary and exclusive purposes for which [the Mount] is formed and organized are for charitable purposes." Supporting Exhibits of Defendant Mount St. Joseph-St. Elizabeth, Vol. I, Articles of Incorporation, Article II, filed Nov. 18, 1989. All funding for the Mount comes from the state, community fund raising, grants, and foundations. It receives no funding from any religious organization, including the Daughters of Charity, the Roman Catholic Church, or the Archdiocese of San Francisco.

 Religious activities that go on at the Mount are optional and the girls rarely attend. These activities have been made available pursuant to Title XXII, California Code of Regulations § 80072(5), which provides that children residing at institutions like the Mount are free to attend religious services and to have visits from a spiritual advisor of their choice.

 There are several religious symbols at the Mount but, with the exception of a statue in the garden, they are confined to the administration wing and the corridor connecting this wing to the building housing the School. The girls do not pass these symbols in order to get from their rooms to the School.

 The directors and corporate members of the Mount are members of the Daughters of Charity. The Executive Director of the Mount is appointed by the corporate members. The Executive Director need not be a member of any religious order or of any religion.

 5.

 The Daughters of Charity are a separate legal entity from the Mount and have no involvement in the operation of the School. Pursuant to an agreement with the Mount, the Daughters of Charity live in a residential facility attached to a building in which the School is located. This facility is strictly off limits to the girls who reside at the Mount. The Mount has an agreement with the Daughters of Charity whereby it has agreed to hire qualified Daughters of Charity sisters to work at the Mount at prevailing rates.

 At the present time, the only sisters employed by the Mount provide nursing care for the girls, the girl's babies, and the cocaine-addicted babies placed at the Mount, or work in the Mount's administration.

  B.

 1.

 In Lemon v. Kurtzman, 403 U.S. 602, 29 L. Ed. 2d 745, 91 S. Ct. 2105 (1971), the Supreme Court considered a constitutional challenge to a state statute authorizing expenditures of public funds at a nonpublic, church-affiliated school. The Court stated that:

 
Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education v. Allen, 392 U.S. 236, 243, 20 L. Ed. 2d 1060, 88 S. Ct. 1923 (1968); finally, the statute must not foster "an excessive government entanglement with religion. Walz [ v. Tax Commission, 397 U.S. 664, 674, 25 L. Ed. 2d 697, 90 S. Ct. 1409]."

 Id. at 612-13.

 The three tests identified by the Supreme Court in Lemon for evaluating the constitutionality of governmental actions under the Establishment Clause have come to be known as the three-prong Lemon test.

 In the present case, there is no dispute that the government involvement in the School has a secular legislative purpose. Only the second and third prongs of the Lemon test are in dispute.

 2.

 Analysis of the second and third prongs of the Lemon test generally begins with the question of whether the benefiting institution can be characterized as "pervasively sectarian." If an institution is deemed to be "pervasively sectarian," then it will almost always be determined that the primary effect of the aid will be to advance religion. But when the benefiting institution is found not to be "pervasively sectarian," when considering the "primary effect" of the government aid, it is presumed that the aid will be used in compliance with the Constitution. Roemer v. Board of Public Works of Maryland, 426 U.S. 736, 760, 49 L. Ed. 2d 179, 96 S. Ct. 2337 (1976); Bowen v. Kendrick, 487 U.S. 589, 108 S. Ct. 2562, 101 L. Ed. 2d 520 (1988).

 An institution is pervasively sectarian if it is an institution "in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission . . .," Hunt v. McNair, 413 U.S. 734, 743, 37 L. Ed. 2d 923, 93 S. Ct. 2868 (1973), or if it is an institution "'so permeated with religion that the secular side cannot be separated from the sectarian.'" Roemer, 426 U.S. at 759, citing Roemer v. Board of Public Works of Maryland, 387 F. Supp. 1282 at 1293 (D. Md. 1974).

 In Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 37 L. Ed. 2d 948, 93 S. Ct. 2955 (1973), the Supreme Court relied on a profile adopted by the district court of pervasively sectarian institutions. According to this profile, such an institution is one that (1) imposes religious restrictions on admissions, (2) requires attendance of pupils at religious activities, (3) requires obedience by students to the doctrines of a particular faith, (4) requires pupils to attend instruction in the theology of a particular faith, (5) is an integral part of the religious mission of a sponsoring church, (6) has as an integral substantial purpose the inculcation of religious values, (7) imposes religious restrictions on faculty appointments, and (8) imposes religious restrictions on what or how the faculty may teach. Id. at 767-68.

 The School does not have any of these characteristics. As noted above, and repeated for emphasis, the School imposes no religious restriction on admissions, does not require attendance at religious activities, does not require obedience of students to the doctrine of a particular faith, does not provide theological instruction, does not inculcate religious values, and imposes no religious restrictions on faculty appointments or on what or how the faculty may teach.

 Legal analysis on these motions could stop here. Plaintiffs, however, have argued that the focus of the Court should be on the Mount as a whole rather than on the School alone. The public funds and District involvement are directed solely at the School. The School is the benefiting institution in this case. Therefore, the Court's focus is correctly on the School itself.

 Even if the Court viewed the Mount as the benefiting institution, however, considering the nature of the Mount as a whole, it could not be characterized as a "pervasively sectarian" institution. The Mount's purposes are primarily charitable, not religious. It does not have as an integral part of its mission the inculcation of religious values. It imposes no religious restrictions on the admission of the girls who live or the persons who work at the Mount.

 Plaintiff's allegations of Establishment Clause violation rest solely on the fact that the School is affiliated with the Mount and that the Mount is affiliated with the Daughters of Charity. No one disputes the fact that the Daughters of Charity are a religious organization. The issue before the Court, however, is whether the benefiting institution is pervasively sectarian. The Supreme Court has observed that "it is not enough to show that the recipient of a challenged grant is affiliated with a religious institution or that it is 'religiously inspired'" in order to find a First Amendment violation. Kendrick, 108 S. Ct. at 2580. In fact, in Kendrick, the Court noted that "this Court has never held that religious institutions are disabled by the First Amendment from participating in publicly sponsored social welfare programs." Id. at 2574. The Court went on to discuss with approval a case decided in 1899, Bradfield v. Roberts, 175 U.S. 291, 44 L. Ed. 168, 20 S. Ct. 121, in which the Court upheld an agreement between the Commissioner of the District of Columbia and a religiously-affiliated hospital whereby the federal government would pay for the construction of a new building on the grounds of the hospital. The Kendrick Court recounted that in Bradfield :

 
The Court refused to hold that the mere fact that the hospital was "conducted under the auspices of the Roman Catholic Church" was sufficient to alter the purely secular legal character of the corporation, particularly in the absence of any allegation that the hospital discriminated on the basis of religion or operated in any way inconsistent with its secular charter.

 Kendrick, 108 S. Ct. at 2575 (citation omitted), quoting Bradfield, 175 U.S. at 298.

 The School is the benefiting institution in this case. It is nonsectarian. The District is in no way involved with the Daughters of Charity. The Daughters of Charity are not involved in the operation of the School. The educational process at the School is purely secular.

 Even if the Court were to view the Mount as the benefiting institution, the mere fact that the School is located at the Mount and it is affiliated with the Daughters of Charity is not enough to make government funding of an otherwise secular school program unconstitutional.

 3.

 Once it is established that a given institution is not pervasively sectarian, the only issue under the second prong of the Lemon test is whether the aid "funds a specifically religious activity in an otherwise substantially secular setting," Hunt, 413 U.S. at 743, or is "extended only to 'the secular side.'" Roemer, 426 U.S. at 759. There is no question of material fact that the funds supplied to the School are used for secular purposes.

 Given the nonsectarian nature of the School, there is no doubt that the primary effect of public aid to the school is to advance a secular purpose. The District's involvement in the School satisfies the second prong of the Lemon test.

 
The schools of course vary from one another, but substantial evidence suggests that they share deep religious purposes. For instance, the Parents Handbook of one Catholic school states the goals of Catholic educations as "[a] God oriented environment which permeates the total educational program," "a Christian atmosphere which guides and encourages participation in the church's commitment to social justice," and "a continuous development of knowledge of Catholic faith, its traditions, teachings and theology."

 Id. at 379.

 This is the type of religious inculcation that is conspicuously absent at the School.

 Plaintiffs' discussion of Americans United for Separation of Church & State v. Porter, 485 F. Supp. 432 (W.D. Mich. 1980), is irrelevant for the same reason. Plaintiffs own recitation of the facts in Porter indicate that the school involved there was "parochial." The significant point with respect to this case is that the School is not a parochial school. It is a religiously neutral institution located on the premises of a charitable and religiously-affiliated organization.

 4.

 As with the second prong or "primary effect" aspect of the Lemon test, the third prong or "excessive entanglement" aspect requires the Court to give primary consideration to the question of whether the benefiting institution is pervasively sectarian. As discussed above, neither the School nor the Mount are pervasively sectarian.

 In Roemer, the Supreme Court observed that when an institution is pervasively sectarian, it is impossible for the state to identify and subsidize separate secular functions without monitoring the use of that aid. 426 U.S. at 765. On the other hand, the Court has also noted that when an institution is not pervasively sectarian, ...


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