struck down laws that provided direct and substantial advancement of the parochial schools.
In both Meek v. Pittenger, 421 U.S. 349, 44 L. Ed. 2d 217, 95 S. Ct. 1753 (1975) and Wolman v. Walter, the Court held unconstitutional state programs providing loans of instructional materials and equipment to parochial schools on the ground that "the programs advanced the 'primary, religion-oriented educational function of the sectarian school.'" Grand Rapids, 473 U.S. at 395 (quoting Meek, 421 U.S. at 364). The Court in Grand Rapids went on to hold that providing educational services to parochial schools fell into category two and constituted an impermissible direct subsidy.
Here, defendants argue that providing Chapter 1 services to parochial schools does not constitute direct aid because the funds expended are used to finance secular activities that the religious schools would not otherwise fund themselves. While the Court in Grand Rapids rejected a similar argument, differences in the two programs at issue lead this Court to conclude that defendants are correct.
In Grand Rapids, the Court's rejection of an argument similar to the one proffered by defendants here was based on three factors. First, the Court felt that there was no way of knowing whether the religious schools would have provided some or all of the courses offered in the challenged program. Second, although the precise subjects may have been new to the participating schools, their general subject matter was undoubtedly a part of the curriculum in the past. Third, the Court felt that accepting defendants' argument would permit the public schools gradually to take over the entire secular curriculum of the religious schools. Id. at 395-96. It was this last factor that the Court felt was most important.
Here, Chapter 1 services are not the type that ordinarily would be provided by the religious schools. Although the services are educational in nature, they are provided only to those children that have special educational needs and come from impoverished families. In this respect, the services are more akin to the type of general welfare services that the Supreme Court has allowed to be provided to parochial school children. See, Wolman v. Walter, 433 U.S. at 244-246. Furthermore, by the express terms of Chapter 1, Chapter 1 money is not to be used to supplant services that otherwise are available from nonfederal sources. 20 U.S.C. § 2728(b); 34 C.F.R. §§ 200.44, 200.53(a). The Court, therefore, finds, as did the court in Pulido that the use of mobile classrooms to provide Chapter 1 services to parochial school children confers only an incidental benefit on the parochial schools and does not have the primary effect of aiding religion.
Plaintiffs next challenge the Districts's attempt to implement Chapter 1 by providing services to children attending sectarian schools in vans parked on parochial school property. As noted above, because of logistical or safety problems in locating the vans on public property immediately adjacent to the parochial schools, the District was forced to place the vans on the grounds of the parochial schools in four instances. With the exception of a few crucial differences, the analysis of this issue is identical to the one just completed with respect to the provision of Chapter 1 services in vans located immediately adjacent to parochial schools. The crucial question is whether the fact that the mobile classroom is parked on religious property makes the classroom a less neutral site or creates a stronger symbolic link between church and state than does parking the vans on public property immediately adjacent to the parochial school.
In finding that placing the mobile classrooms on religious school grounds does create an impermissible symbolic union between church and state, the Court notes, as Judge Stevens did in Pulido, that "while the risk of people perceiving a link between the private schools and the mobile units may be less than when services were provided inside the parochial schools themselves, students receiving [Chapter 1] services are still receiving those services on private school grounds." 728 F. Supp. at 591. Furthermore, it is doubtful that an elementary school child who merely goes from one building on campus to another would "discern the crucial difference between the religious school classes and the 'public school classes' even if the latter were successfully kept free of religious indoctrination." Grand Rapids, 473 U.S. at 391. Also, the public at large might easily conclude from the presence of District property on religious school grounds that the two are engaged in a cooperative effort.
As noted above, Judge Stevens in Pulido opted for a bright line rule in deciding that whether the mobile classroom was parked on or off campus was dispositive. While to some this might seem an arbitrary exercise of judicial line-drawing, the Court believes, as did Judge Stevens, that this method is much preferred to the alternative. For drawing the distinction at the property line of the school campus alleviates the necessity of the Court having to engage in the even more arbitrary exercise of having to determine just how far from the private school campus the vans have to be located in order to be considered a neutral site. There is enough uncertainty prevalent in this area of the law without adding to that uncertainty by having to determine how far is far enough. Furthermore, the decision to draw the line at the property boundary finds some support in dictum contained in Justice O'Connor's dissent in Aguilar. In her dissent, Justice O'Connor stated that "children who attend parochial schools may also continue to benefit from Title I programs offered off the premises of their schools -- possibly in portable classrooms just over the edge of school property." 473 U.S. at 430-31 (O'Connor, J., dissenting).
Therefore, the Court finds that placing the mobile classrooms on private school property violates the Establishment Clause. Because plaintiffs have not filed a cross-motion for summary judgment, however, all the Court can do now is deny defendants' motion on this issue.
Plaintiffs next challenge the District's practice of taking the cost of obtaining the mobile classrooms "off the top" of its entire Chapter 1 budget, a practice required under the regulations promulgated by the Secretary. Plaintiffs allege that this practice violates the Establishment Clause by providing more money to the parochial school children than to the public school children when the expenditures are compared on a per child basis. Plaintiffs note that Pulido, the only published case to decide this issue, found the "off-the-top" allocation system unconstitutional. But for the reasons discussed below, the Court declines to follow Pulido, and reaches the opposite conclusion, i.e., that taking the expenses of providing the mobile vans "off the top" is fully constitutional.
There is no question that the practice of deducting the costs of the mobile units off the top of all monies allocated for Chapter 1 services has the effect of decreasing the amount of services the children in the programs receive. Many courts, however, have held that the Constitution does not require absolute equality of expenditures between public and parochial schools. See, Members of Jamestown School Committee v. Schmidt, 699 F.2d 1, 9 (1st Cir. 1983). So long as the costs are not so disproportionate as to become apparent that the program is merely a ruse to confer a benefit to the parochial school children, the program will not be struck down merely because the costs of administering the program do not fall equally on all parties. Id. at 10.
The major problem with plaintiffs' argument is that they erroneously focus on the provision of the mobile classrooms as the benefit of the Chapter 1 program, rather than on the true benefit, which is remedial education services being provided to poor children who are in desperate need of such services. The mobile classrooms are just a means of providing these services. In fact, if the costs of the mobile units were deducted only from the portion of funds earmarked for children attending parochial schools, those children would be receiving substantially less "educational" services than were the children in the public schools. This would then be in violation of Chapter 1 itself, which requires that the services available to children be comparable, a provision explicitly upheld in Wheeler v. Barrera, 417 U.S. 402, 41 L. Ed. 2d 159, 94 S. Ct. 2274 (1973).
Furthermore, when the Court compares the expenditures made in acquiring the mobile units with total expenditures for the entire Chapter 1 program, the Court is hard pressed to conclude that the program is just a ruse to confer a benefit on the parochial schools.
In the 1986-87 school year, the District spent approximately $ 368,000 in acquiring seven mobile classrooms, while the overall expenditures on Chapter 1 services were in excess of $ 6 million. Thus, only a little over five percent of the entire budget was spent on acquiring mobile classrooms. Not surprisingly, this percentage has dwindled even further in recent years as the need to acquire mobile vans has lessened. In fact, in the past two school years the District did not purchase any new vans. The only expenses incurred in conjunction with the mobile classrooms was some $ 82,000 for maintenance, while the combined expenditures for the overall program for these years was nearly $ 15 million. Therefore, while it is true that it costs more to administer Chapter 1 services to children attending parochial schools, given these numbers, the Court concludes that the disparity is not so great as to constitute a ruse to provide a direct benefit to the parochial schools.
The Court recognizes that this conclusion is contrary to the conclusion reached in Pulido. But, as the Court will attempt to show, it believes the Pulido decision was incorrectly decided.
In finding the off-the-top method of allocating funds for the purchase of the mobile classrooms unconstitutional, Judge Stevens concluded in Pulido that:
While it is constitutional to use public funds to provide for the remedial education of public school students the Constitution does not require, and indeed this court finds that it forbids, the taking of federal funds from public school students in order to allow the services to be provided to private school students.
728 F. Supp. at 586-87. There is one inconsistency in this conclusion, however, that leads this Court to reject it.
When read literally, Judge Stevens opinion would necessarily bar the government from using any federal funds to finance Chapter 1 services in parochial schools, a proposition implicitly rejected in Wheeler. The last clause of the quoted passage states that the Constitution prohibits "the taking of federal funds from public school students in order to allow the services to be provided to private school students." Pulido, 728 F. Supp. at 587. The fallacy in this argument is that any federal money spent on providing services to parochial school children necessarily takes funds away from children attending public schools. Even if the costs of the vans were deducted only from funds earmarked for parochial school children, a proposition that would arguably violate the comparable services provision of Chapter 1, the effect is still using federal funds to provide remedial services to parochial school children. Yet Judge Stevens himself upheld the practice of providing services to parochial school children through the use of mobile classrooms parked off the premises of the parochial schools.
For the reasons discussed above, the Court parts company with Judge Stevens and finds that taking the costs of providing Chapter 1 services to parochial school children through the use of mobile vans "off the top" is fully constitutional.
In their complaint, plaintiffs allege that the by-pass provision, the equal expenditure provision, and the requirement that the LEA and the private school officials consult each other in implementing any Chapter 1 program combine to give the religious officials an impermissible "veto" over implementation of the program. Plaintiffs further allege that the religious officials used this "veto" power to gain the type of program they desired. Defendants counter that while the by-pass provision and the consultation requirement do give the religious school officials a say in implementing the Chapter 1 program, the provisions in no way give the religious school officials any power to veto the program.
Plaintiffs' contention was expressly rejected in Wheeler, where the Court noted that:
The Act places ultimate responsibility and control with the public agency, and the overall program is not to be defeated simply because the private school refuses to participate unless the aid is offered in the particular form it requests. The private school may refuse to participate if the local program does not meet with its approval. But the result of this would then be that the private school's eligible children, the direct and intended beneficiaries of the Act, would lose. The Act, however, does not give the private school a veto power over the program selected by the local agency.
417 U.S. at 424 (emphasis added). The only difference between Chapter 1 before the Wheeler Court and Chapter 1 before this Court relevant to this discussion is that the original Act did not contain a by-pass provision. The by-pass provision, however, does not shift responsibility over the program to the religious school officials.
The by-pass provision, 20 U.S.C. § 2727(b), provides generally that if the Secretary determines that an LEA has failed to provide services to private school children in an equitable manner, then arrangements must be made to have such services furnished in the proper manner. It is difficult to conceive how this provision, which vests final decision making authority in the Secretary, can be read to grant to the religious schools a "veto" over implementation of the Chapter 1 program. Therefore, the Court concludes that the decision in Wheeler, that Chapter 1 does not give the private school a veto over the program, retains its vitality.
As an adjunct to their veto argument, plaintiffs contend that the procedures set forth in Chapter 1 for implementing the program have led to political divisiveness along religious lines and have created excessive entanglements between church and state. In fact, plaintiffs spend some seventeen pages of their factual recitation, and submit some 125 exhibits, chronicling the efforts undertaken by all parties to implement the present Chapter 1 program.
As noted in Lemon, a law is deemed to foster excessive entanglements if it requires comprehensive, discriminating, and continuing state surveillance to ensure that the principles embodied in the Establishment Clause are respected. 403 U.S. at 619. Here, the initial decision on how to implement the Chapter 1 program undoubtedly involved a great deal of entanglement between church and state. But these entanglements were the result of the unusual circumstances present in trying to develop a new program in the wake of the decision in Aguilar. Therefore, there is nothing to suggest that these entanglements will be continuing now that a program has been implemented.
Plaintiffs also contend that Chapter 1 creates excessive entanglements through the need for administrative cooperation between the public school officials providing the services and the religious school officials receiving them. This contention is more troubling.
To support their position, plaintiffs point out that the Aguilar Court stated that:
"The administrative cooperation that is required to maintain the educational program at issue here entangles church and state in still another way that infringes interests at the heart of the Establishment Clause. Administrative personnel of the public and parochial school systems must work together in resolving matters related to schedules, classroom assignments, problems that arise in the implementation of the program, requests for additional services, and the dissemination of information regarding the program. Furthermore, the program necessitates 'frequent contacts between the regular and the remedial teachers (or other professionals), in which each side reports on individual student needs, problems encountered, and results achieved.'"