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.
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.
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.
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.
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.
The School is best characterized as a nonsectarian school that receives both private and public funds. Given the nonsectarian nature of the School, the Establishment Clause is not even implicated by the use of public funds or the District's involvement at the School.
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.
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.
Plaintiffs' reliance on School District of the City of Grand Rapids v. Ball, 473 U.S. 373, 87 L. Ed. 2d 267, 105 S. Ct. 3216 (1984), to support its view that the primary effect of the District's involvement in the School is to advance religion is misplaced. In Grand Rapids, the Court noted that forty of the forty-one schools that had received the government funds at issue were sectarian in character:
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.
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, the need for the state to monitor the aid is "substantially reduced." Id. at 762.
In this case, the District controls the School's operations by regularly forwarding WAD's and Curriculum Guides to the School. The WADs set forth District policies, school calendars, District-sponsored educational programs, and teacher training classes. The Curriculum Guides include course materials and reference sources. There is no indication that public funds have been used for any nonsecular purpose. Because neither the School nor the Mount are pervasively sectarian, the involvement of the District in the School does not lead to excessive entanglement between church and state. Defendants have satisfied the third prong of the Lemon test.
As part of their argument with respect to excessive entanglement, plaintiffs argue that the District has unlawfully delegated its powers to the Mount. In an attempt to make out an argument of improper delegation of government authority, plaintiffs cite Larkin v. Grendel's Den, Inc., 459 U.S. 116, 74 L. Ed. 2d 297, 103 S. Ct. 505 (1982), a case in which the Court found that Massachusetts had unlawfully vested authority in churches by creating a statute prohibiting alcoholic beverage licensing to premises in the proximity of a church, if the church objects. Plaintiffs cite Larkin for the proposition that:
The core rationale underlying the Establishment Clause is preventing "a fusion of governmental and religious functions" . . . . The Framers did not set up a system of government in which important, discretionary governmental powers would be delegated to or shared with religious institutions.