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WALKER v. SAN FRANCISCO UNIFIED SCH. DIST.

April 1, 1991

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; LAURO F. CAVAZOS, as Secretary of the United States Department of Education, Defendants, and DEBORAH MARTIN; JACOB PEREA; and BARBARA PEREA, Intervenor-Defendants



The opinion of the court was delivered by: ORRICK

 WILLIAM H. ORRICK, UNITED STATES DISTRICT JUDGE

 Plaintiffs, resident California state and federal taxpayers, filed a declaratory relief action against defendants *fn1" 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, 20 U.S.C. §§ 3801 et seq., *fn2" violates the Establishment Clause of the First Amendment to the Constitution of the United States.

 On June 6, 1990, this Court issued an Opinion and Order granting defendants' motion for summary judgment with respect to all causes of action challenging the constitutionality of Chapter 2. Walker v. San Francisco Unified School Dist., 741 F. Supp. 1386 (N.D. Cal. 1990).

 I.

 Chapter 1 provides funds for remedial education services to educationally deprived children who reside in low-income areas regardless of whether they attend public, private nonsectarian, or private sectarian schools. Under Chapter 1, Congress provides financial assistance in the form of grants to local educational agencies to meet the special needs of educationally deprived children at the preschool, elementary, and secondary school levels from areas where low-income families are concentrated.

 The local educational agency ("LEA") applying for such a grant must provide assurance to the Secretary of the United States Department of Education ("Secretary") that it will provide the necessary services to children attending both public and private schools on an equal basis. In developing specific programs, the LEA is required to consult with appropriate private school representatives to ensure proper implementation of the program. 20 U.S.C. § 2727(a). The final decision, however, rests solely with the LEA.

 The funds used for Chapter 1 may not be used to meet the "needs of the private school" or the "general needs of children in the private school." 34 C.F.R. § 200.53(b). Additionally, Chapter 1 funds may be used only for services that supplement, and in no way supplant, services that otherwise would be provided from nongovernmental sources.

 Prior to 1985, the San Francisco Unified School District ("District") provided Chapter 1 services to children attending private sectarian schools in classrooms located on the campuses of the religious schools. In 1985, in the case of Aguilar v. Felton, 473 U.S. 402, 87 L. Ed. 2d 290, 105 S. Ct. 3232 (1985), the Supreme Court held that this practice violates the Establishment Clause of the First Amendment.

 In response to Aguilar, the District sought alternative ways to provide Chapter 1 services to children attending sectarian schools without running afoul of the First Amendment. After much debate and consultation among the District and religious school officials, *fn3" the District began providing Chapter 1 services to religious school children in mobile vans that the District purchased specifically for the purpose of providing Chapter 1 services to children attending sectarian schools.

 In providing Chapter 1 services to religious school children, the District, in all but a few instances, parks the vans on public property or private property unaffiliated with the religious institution whose children are receiving the services at the time. Defendants' Memorandum in Support of Motion for Summary Judgment on Chapter 1, filed Aug. 24, 1990, Exh. B, Declaration of Junius Camp ("Camp Declaration"). In four instances, however, due to safety concerns or the unavailability of nearby parking locations, the mobile units are parked on private school property. Camp Declaration at para. 5.

 It is undisputed that the mobile classrooms are under the complete control of the District and are used solely to provide Chapter 1 services. None of the classrooms contain any religious symbols, and all are clearly marked as property of the District. In addition, the teachers providing the remedial services are employees of the District and teach only secular subjects such as remedial reading and mathematics.

 As noted above, funding for Chapter 1 services is provided by the federal government. Pursuant to regulations promulgated by the Secretary, all reasonable and necessary administrative costs of providing Chapter 1 services to both public and private schools are taken "off-the-top" of the entire allocation. 34 C.F.R. § 200.52(a)(2). In attempting to comply with this regulation, the District classifies the cost of purchasing the mobile units as administrative costs and deducts the cost "off-the-top" of the entire allocation.

 Plaintiffs' objections to the current Chapter 1 program can be broken down into the following distinct complaints: (1) placing mobile classrooms adjacent to parochial school property has the primary effect of aiding religion because it creates a "symbolic union" of church and state, provides a direct benefit to the parochial schools, or results in excessive entanglements between church and state; (2) placing the mobile classrooms on religious school property creates the primary effect of aiding religion either because it creates a "symbolic union" of church and state or because it results in excessive entanglements between church and state; (3) the "off-the-top" allocation of the costs of the mobile classrooms results in an inequitable benefit to those children attending parochial schools to the detriment of those children attending public schools; (4) the equal expenditure provision, the by-pass provision and the requirement that the LEA consult with private school officials in implementing any program, give the religious school officials an impermissible "veto" power over the implementation of Chapter 1; (5) the above requirements unconstitutionally lead to an excessive entanglement between church and state; and (6) the leasing of property from religious organizations to provide Chapter 1 services constitutes impermissible direct aid to religion and also leads to excessive entanglement between church and state. The Court will discuss each of these contentions in turn.

 II.

 In determining whether a statute or governmental practice violates the Establishment Clause, the starting point is the three-prong test first enunciated in Lemon v. Kurtzman, 403 U.S. 602, 29 L. Ed. 2d 745, 91 S. Ct. 2105 (1971). To be permissible under this test, the law or practice in question must (1) have a secular purpose, (2) have a primary or principal effect that neither advances nor inhibits religion, and (3) not foster excessive entanglements with religion. Id. at 612-13. For the reasons discussed infra, applying this test to the facts of this case leads the Court to conclude that the challenged implementation of Chapter 1 passes constitutional muster in all but two respects. *fn4"

 A.

 There is no question that Chapter 1 seeks to accomplish a valid secular purpose. The stated purpose of Chapter 1 is "to improve the educational opportunities of educationally deprived children by helping such children succeed in the regular program of the local educational agency, attain grade-level proficiency, and improve achievement in basic and more advanced skills." 20 U.S.C. § 2701(b). This clearly is a sufficiently secular purpose to satisfy the purpose prong of the Lemon test. Indeed, plaintiffs do not argue otherwise.

 B.

 In their complaint, plaintiffs allege that using mobile classrooms parked in close proximity to the parochial schools "has the effect of directly promoting religion and substantially advancing the primary religious mission of the sectarian schools." Plaintiffs' Second Amended Complaint, filed Nov. 17, 1987, at para. 43. Plaintiffs' argument is premised on what it considers to be a "symbolic union" between church and state that arises out of the close proximity between the parochial schools and the location of the mobile classrooms. For the reasons discussed below, the Court finds this argument unpersuasive and contrary to relevant Supreme Court precedent.

 As support for their position, plaintiffs rely heavily 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). In Grand Rapids, the Court, among other things, invalidated a program that allowed public school teachers to teach certain courses in the parochial schools. The Court found the program unconstitutional because it had the effect of promoting religion in three ways. First, the Court found that "the state-paid instructors, influenced by the pervasively sectarian nature of the religious schools in which they work, may subtly or overtly indoctrinate the students in particular religious tenets at public expense." Id. at 397. Second, the Court held that "the symbolic union of church and state inherent in the provision of secular, state-provided instruction in the religious school buildings threatens to convey a message of state support for religion to students and to the general public." Id. Third, the Court found that "the programs in effect subsidize the religious functions of the parochial schools by taking over a substantial portion of their responsibility for teaching secular subjects." Id. As the Court will show, however, none of these factors are present in the case at bar.

 The first way in which the Court felt that the program in Grand Rapids had the effect of promoting religion was the danger that state-paid instructors, having been influenced by the pervasively sectarian nature of the religious schools in which they work, would inculcate religious beliefs in their students. The rationale behind this holding was the Court's belief that "teachers in such a [pervasively sectarian] atmosphere may well subtly (or overtly) conform their instruction to the environment in which they teach, while students will perceive the instruction provided in the context of the dominantly religious message of the institution, thus reinforcing the indoctrinating effect." Id. at 388.

 Here, however, the remedial services being offered under Chapter 1 are not being conducted in a pervasively sectarian atmosphere. Instead of teaching in the religious school classrooms, a practice found unconstitutional in Aguilar, the classes are being taught in classrooms owned and operated by the public schools. The Court upheld a similar practice in Wolman v. Walter, 433 U.S. 229, 53 L. Ed. 2d 714, 97 S. Ct. 2593 (1976).

 In Wolman v. Walter, the Court upheld a state statute that provided therapeutic, guidance, and remedial services for students identified as having a need for specialized attention. These services were to be provided in the public schools, in public centers, or in mobile units located off the nonpublic premises. Id. at 244 n. 12. The Court found nothing impermissible in this practice so long as the services were provided at sites that were "'neither physically nor educationally identified with the functions of the nonpublic school.'" Id. at 246-47 (quoting Wolman v. Essex, 417 F. Supp. 1113, 1123 (N.D. Ohio ...


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