FRIENDLY, Circuit Judge:
The venerated language of the First Amendment provides that
Title I of the Elementary and Secondary Education Act of 1965 ("the Act"), 20 U.S.C. § 2701 et seq.,
We have no doubt that the program here under scrutiny has done much good and that, apart from the Establishment Clause, the City could reasonably have regarded it as the most effective way to carry out the purposes of the Act. We likewise have no doubt that the City has made sincere and largely successful efforts to prevent the public school teachers and other professionals whom it sends into religious schools from giving sectarian instruction or otherwise fostering religion. However, we hold that the Establishment Clause, as it has been interpreted by the Supreme Court in Public Funds for Public Schools v. Marburger, 358 F.Supp. 29 (D.N.J.1973), aff'd mem., 417 U.S. 961, 94 S.Ct. 3163,
The Facts and the Proceedings in the District Courts
The Act provides for annual Congressional appropriations for programs proposed by local educational agencies ("LEAs") and approved by state education agencies ("SEAs"), 20 U.S.C. § 2731. All programs are administered solely by the LEA in the particular area and are staffed entirely with the LEA's employees. 20 U.S.C. § 2734(m); 45 C.F.R. §§ 116.42, 116a.23(f). To be eligible for Title I funds, a program must satisfy certain statutory criteria that are designed to assure that the Act's purposes are advanced. For example, Title I funds may be provided only to children who meet the dual eligibility requirement of (1) educational deprivation, defined as below age-level performance, and (2) residence in an area designated by the LEA, in accordance with Title I regulations, as having a high concentration of children from low-income families. 20 U.S.C. §§ 2722, 2732-34. Federal financing is available only for programs that will supplement, rather than supplant, non-federally funded programs that would have been available in the absence of Title I funds. 20 U.S.C. §§ 2734(f), 2736(c).
20 U.S.C. § 2740(a) provides:
Regulations issued by the Secretary require that each LEA provide services designed to meet the needs of educationally deprived children who attend private schools, see 45 C.F.R. § 116a.23. Going somewhat beyond the statute, the regulations provide that the types of services to be provided shall be determined "on a basis comparable to that used in providing for the participation of public school children." Id.
The City's initial Title I program for nonpublic school students required them to travel to public schools after regular school hours to receive remedial services from public school employees. When attendance lagged, the Board transferred some Title I services to nonpublic schools after regular school hours while maintaining other services at off-premises sites. Attendance, however, remained poor. The reasons assigned for the failure of the programs were that both students and teachers were tired, that there was concern about the safety of the children traveling home after dark or in inclement weather, and that communication between Title I teachers and other professionals and the regular classroom teachers of the nonpublic schools was virtually impossible. A solution whereby nonpublic school students could participate with public school students in programs conducted at public schools during the regular school day was rejected in part because of doubts whether under Art. XI, § 3, of the New York Constitution
Meanwhile, on August 11, 1978, this action for declaratory and injunctive relief with respect to the City's plan was brought by six federal taxpayers, see Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), in the District Court for the Eastern District of New York but was stayed pending the final determination of the PEARL case. Four individuals whose children attend nonpublic schools in the City and receive remedial educational assistance under Title I, represented by the same counsel who had represented the parent intervenors in PEARL, were permitted to intervene as defendants. The parties stipulated that the case was to be decided upon the record in PEARL, along with certain affidavits supplementing those previously filed. Judge Neaher, agreeing with the three-judge court in PEARL, granted defendants' motion for summary judgment and dismissed the complaint. Plaintiffs did not dispute the correctness of defendants' assertions about the basic facts, as distinguished from interlarded conclusions, insofar as such facts could be within the knowledge of the witnesses and affiants, and we have drawn and will continue to draw upon the various statements and affidavits, particularly the defendants' Statement of Material Facts Not In Dispute under former Rule 9(g) of the Eastern District, generally without particularizing the source.
Under the City's program the Board provides nonpublic school students — primarily, as we have stated, students enrolled in religious schools — with five types of remedial services: remedial reading, reading skills centers, remedial mathematics, English as a second language, and clinical and guidance services. No form of remedial service is provided with Title I funds if it is being provided by the nonpublic schools. The first four types of services are described in the margin.
The teachers and other professionals engaged in the City's nonpublic school program are, with the exception of some physicians under special contract, regular salaried employees of the Board who have applied for such assignments. Religion is not a factor in the assignment. Determination of which nonpublic schools a teacher or other professional shall serve is made by the administrators of the City's Bureau of Nonpublic School Reimbursable Services. The amount of time that a particular teacher or other professional will spend at any one nonpublic school is determined by the number of students eligible for the Title I program and the needs of such students. During the 1981-82 school year, some 78% of all Title I teachers and other professionals spent less than five days a week in the same public school and worked in more than one; children in 180 of the 231 nonpublic schools with Title I services received these from itinerant teachers; all non-teacher professionals were itinerant. Affidavits of a considerable number of teachers demonstrate that a large majority work in nonpublic schools with religious affiliations different from their own.
Instructions issued to the teachers and other professionals by the Bureau of Nonpublic School Reimbursable Services emphasize their accountability to their Title I supervisor and their nonaccountability to any nonpublic school official. They are solely responsible for the selection of students for the program and are to take all necessary steps to assure that materials and equipment provided for Title I activities are used only therein. They are not to engage in team-teaching or other cooperative instructional activities with nonpublic school teachers, to become involved with religious activities of the nonpublic schools or to introduce any "religious matter" into their teaching. While it is deemed necessary for the Title I teacher to confer with the regular classroom teachers of the nonpublic schools concerning the students' needs and progress in that classroom environment, the Title I teachers are instructed to confine these consultations to mutual professional concerns about the students' educational needs and not to engage in any discussion of matters of a religious nature.
The Title I teachers and other professionals are subject to the supervision of field supervisors, each of whom is ordinarily responsible for 22 Title I teachers and attempts to make at least one unannounced visit per month. The field supervisors are in turn supervised by program coordinators. While they too make occasional unannounced visits, a principal method of carrying out their responsibilities is through monthly in-service training sessions, frequently held on days when the public schools are in session but the nonpublic schools are observing a religious holiday. Defendants emphasize the absence of any recorded complaint by a Title I teacher of interference by nonpublic school authorities or of any reports by supervisors that teachers have engaged in religious activity.
Teaching materials and equipment used in the Title I program are selected by City employees. The teaching materials are not to duplicate materials used in regular classroom instruction or to have any religious content. All such equipment and materials are labeled as property of the Board for use in the Title I program, are locked in storage and filing cabinets when not in use and are subject to an annual inventory.
Before approving the assignment of Title I teachers or other professionals to a nonpublic school, an administrator of the Board's Office of Special Projects informs the principal of applicable federal, state
Administrative contacts between the Board's Office of Special Projects and nonpublic school officials are said to be of a routine character, falling into three general categories — the Board's dissemination of information, its processing of requests for services by the nonpublic schools, and its annually requesting information needed for a survey of the workings of the program. While there have been criticisms of nonpublic school principals by the Board and vice versa, none of them has turned on matters of religion.
Defendants' statement of the facts concerning the operation of the Title I program in nonpublic schools may be summarized by quoting an observation from a 1971 report by the United States Office of Education: "Title I creates the unusual situation in which an educational program may operate within the private school structure but be totally removed from the administrative control and responsibility of the private school." United States Office of Education (USOE) Program Guide No. 44 (1968), reproduced in Title I ESEA, Participation of Private School Children, A Handbook for State and Local Officials, U.S. Department of Health, Education and Welfare, Publication No. (OE) 72-62, p. 8 (1971).
1) The Supreme Court's decisions with respect to government aid to religious schools
Although the briefs have included a generous sampling of the Supreme Court's decisions in regard to the Establishment Clause, there are a sufficient number dealing with the problem of government aid to religious schools and, indeed, with the very problem here presented — the sending of public school teachers and other professionals into such schools to engage in remedial teaching and to provide clinical and guidance services — that we think it best to confine ourselves largely to these decisions, with particular emphasis on the latter. In a field that has been so thoroughly ploughed by the Supreme Court, the function of an inferior federal court is not to make an independent interpretation of the constitutional text or to engage in creative distinctions but to do its best to follow what the Court has said. We have thought it necessary to analyze the Court's relevant pronouncements at some length, and generally in chronological order, since our reading of many of them differs materially from that of the three-judge court in PEARL, supra, 489 F.Supp. 1248.
The starting point of modern Establishment Clause jurisprudence on state aid to parochial schools is Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947). There, after a thorough exposition of the history and purpose of the Establishment Clause by Justice Black, a bare majority of the Court held that the clause was not violated by a state's spending tax-raised funds to reimburse parents of parochial school pupils for their children's bus fares as part of a general program under which it paid the fares of pupils attending public and other non-profit schools; Justice Black thought that such action "approache[d] the verge" of the state's constitutional power, 330 U.S. at 16, 67 S.Ct. at 511. Four Justices, in two eloquent dissents by Justices Jackson and Rutledge, believed it went over the verge.
A score of years later, the Court moved the verge a considerable distance in Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968), where it sustained a New York law requiring local
The Court returned to the subject in Lemon v. Kurtzman and its companion case, Earley v. DiCenso, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). Chief Justice Burger pointed out, as had Justice Rutledge in his dissent in Everson, that the Establishment Clause prohibits not simply the establishment of a state church but any law "respecting" an establishment of religion, and that "[a] given law might not establish a state religion but nevertheless be one `respecting' that end in the sense of being a step that could lead to such establishment and hence offend the First Amendment." 403 U.S. at 612, 91 S.Ct. at 2111 (emphasis in original). He continued, in what has become an oft-quoted passage, 403 U.S. at 612-13, 91 S.Ct. at 2111:
Excessive entanglement was found to exist in a Rhode Island statute providing for up to a 15% salary supplement to teachers in nonpublic schools in which the average per-pupil expenditure on secular education was below the average in public schools, conditioned on the teachers' giving only courses offered in the public schools, using only materials used in the public schools and agreeing not to teach courses in religion. Excessive entanglement was found also in a Pennsylvania statute authorizing the state's "purchase" of certain "secular educational services" from nonpublic schools, such purchase being restricted to courses in specified subjects, with the textbooks and materials to be approved by the state and with no payment to be made for any course containing any subject matter reflecting religious teachings or the morals or forms of worship of any sect.
The Court said, with respect to the Rhode Island statute, 403 U.S. at 619, 91 S.Ct. at 2114:
The Pennsylvania statute suffered from the same defect, exacerbated by the fact that it provided state financial aid directly to the sectarian schools, an arrangement "`pregnant with involvement'" between church and state. 403 U.S. at 622, 91 S.Ct. at 2115 (quoting Walz v. Tax Commission, 397 U.S. 664, 675, 90 S.Ct. 1409, 1414, 25 L.Ed.2d 697 (1970)). The Court spoke also of "[a] broader base of entanglement" inherent in "the divisive political potential of these state programs", and said that this potential was aggravated "by the need for continuing annual appropriations and the
On the same day as Lemon, the Court decided Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1972). A bare majority sustained, with one qualification, provisions of the Higher Education Facilities Act of 1963, which authorized federal grants to institutions of higher education, which the Court construed as including church-related institutions, for the construction of facilities other than those used for sectarian instruction, for religious worship, or primarily in connection with the program of a school or department of divinity. The statutory restrictions were to be enforced by the Office of Education primarily by way of on-site inspections. This result, seemingly at odds with that in Lemon, rested in large part on the Court's conclusion, 403 U.S. at 685, 91 S.Ct. at 2099, that "[t]here are generally significant differences between the religious aspects of church-related institutions of higher learning and parochial elementary and secondary schools." Quoting from Walz v. Tax Commission, 397 U.S. 664, 671, 90 S.Ct. 1409, 1412, 25 L.Ed.2d 697 (1970) (sustaining tax exemptions to religious organizations), the Court said that the "affirmative if not dominant policy" of the instruction in pre-college church schools is "to assure future adherents to a particular faith by having control of their total education at an early age", whereas Congress might well have thought that college students were less impressionable and less susceptible to religious indoctrination. The Court noted that, by nature, "college and postgraduate courses tend to limit the opportunities for sectarian influence by virtue of their own internal disciplines", and that "[m]any church-related colleges and universities are characterized by a high degree of academic freedom and seek to evoke free and critical responses from their students", 403 U.S. at 686, 91 S.Ct. at 2099 (footnote omitted). The evidence showed that the four schools there in question, while governed by Catholic religious organizations and having predominantly Catholic faculties and student bodies, admitted non-Catholics as students and gave faculty appointments to non-Catholics. None required students to attend religious services and, although all four required students to take theology courses, the parties had stipulated that these were taught according to the academic requirements of the subject matter, covered a range of human religious experiences, and made no attempt to indoctrinate students or to proselytize. Since religious indoctrination was not a substantial purpose or activity of these church-related colleges and universities, there was less likelihood than in primary and secondary schools that religion would permeate the area of secular education. The inspections "necessary to ascertain that the facilities are devoted to secular education" were therefore characterized as "minimal", 403 U.S. at 687, 91 S.Ct. at 2100. Emphasis was also placed on the fact that the Government was subsidizing buildings, not — as in Lemon — teachers, who "are not necessarily religiously neutral", and that the Government aid was "a one-time, single-purpose grant", 403 U.S. at 687-88, 91 S.Ct. at 2100. Finally, the Court observed that these factors, plus the diverse and
Tilton was followed, again with respect to a college, by a differently composed Court, this time by a vote of 6-3, in Hunt v. McNair, 413 U.S. 734, 93 S.Ct. 2868, 37 L.Ed.2d 923 (1973).
He went on to say, much as the Chief Justice had done in Lemon, that
413 U.S. at 797-98, 93 S.Ct. at 2977-78 (footnotes omitted). The Court followed Nyquist in two more cases decided that day. In Sloan v. Lemon, 413 U.S. 825, 93 S.Ct. 2982, 37 L.Ed.2d 939 (1973), it invalidated a similar Pennsylvania tuition reimbursement scheme. In Levett v. Committee for Public Education & Religious Liberty, 413 U.S. 472, 93 S.Ct. 2814, 37 L.Ed.2d 736 (1973), in an opinion by the Chief Justice, it applied Nyquist to invalidate another New York program under
It is with this background that we come to the four cases in which the Court has considered programs such as that here sub judice.
Wheeler v. Barrera, 417 U.S. 402, 94 S.Ct. 2274, 41 L.Ed.2d 159 (1974), was the first case in which the Court gave plenary consideration to the application of Title I of the Act to parochial schools.
The Court, in an opinion by Justice Blackmun, considered the case to present two issues: "First, whether Title I requires the assignment of publicly employed teachers to provide remedial instruction during regular school hours on the premises of private schools attended by Title I eligible students, and, second, whether that requirement, if it exists, contravenes the First Amendment." 417 U.S. at 415, 94 S.Ct. at 2282. The Court answered the first question by saying that Title I permitted but did not require such assignment. The Court declined to pass on the second issue since no order had been entered requiring "public school teachers paid with Title I funds [to be sent] into parochial schools to teach remedial courses", 417 U.S. at 426, 94 S.Ct. at 2287. The Court went on to say:
Id. (emphasis supplied).
We think Wheeler has little bearing on the present case. It shows only that a majority of the Court regarded the question of the constitutionality of sending public school teachers into parochial schools to perform Title I programs to be debatable, with Justice Douglas indicating a clear preference for a holding of unconstitutionality, Justice White indicating a clear preference for a holding of constitutionality, and Justice Powell voicing "serious misgivings" in regard to constitutionality.
In fact, at that very time the Court had under advisement a case substantially raising the constitutional issue bypassed in Wheeler and decided it summarily on the side of unconstitutionality only a week later, Public Funds for Public Schools v. Marburger, 417 U.S. 961, 94 S.Ct. 3163, 41 L.Ed.2d 1134 (1974), aff'g mem. 358 F.Supp. 29 (D.N.J.1973).
We come then to Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975), the most pertinent to this case of all the Court's Establishment Clause decisions. In Part V of the plurality opinion, written by Justice Stewart for himself, Justice Blackmun and Justice Powell, and concurred in by Justice Brennan for himself, Justice Douglas and Justice Marshall
The teaching and other services were to be provided in the nonpublic schools by personnel drawn from a division of the public school system that had been established to provide similar services to public school children. A divided three-judge district court, see 374 F.Supp. 639 (E.D.Pa.1974), had sustained this against an attack on entanglement grounds on the basis that continuing supervision of the personnel providing auxiliary services would not be necessary to guarantee that a member of the auxiliary-service staff had not "succumb[ed] to sectarianization of his or her professional work", 374 F.Supp. at 657. Justice Stewart began by finding that this was error, see 421 U.S. at 369-70, 95 S.Ct. at 1765, citing Earley v. DiCenso, the companion
421 U.S. at 372, 95 S.Ct. at 1766.
The last of the four cases relating to government funding of auxiliary services
Taking first the on-premises diagnostic services, Justice Blackmun began by agreeing with the finding of the district court that the danger that the diagnostic speech and hearing staff or the psychological diagnostician might engage in the impermissible inculcation of religion was "insubstantial". 433 U.S. at 242, 97 S.Ct. at 2602. He perceived no sufficient basis for distinguishing these diagnostic services from the portions of the statute funding physician's, nursing, dental and optometric services in nonpublic schools — services of the sort that the Court had approved in Lemon, supra, 403 U.S. at 616-17, 91 S.Ct. at 2113, and which the Wolman plaintiffs had not challenged. He recognized the binding authority of Meek but distinguished the role of the diagnostician from that of the teacher or guidance counselor in that it "does not
The plaintiffs' attack on the portions of the statute funding off-premises therapeutic services was limited to the situation in which such services were not provided to public and nonpublic school students simultaneously. This, plaintiffs contended, created a risk that sectarian pupils might be isolated and the public employees tempted to "tailor [their] approach to reflect and reinforce the ideological view of the sectarian school attended by the children", thereby directly aiding the sectarian institution. 433 U.S. at 246, 97 S.Ct. at 2604. Justice Blackmun answered by construing the statute, as had the district court, "to authorize services only on sites that are `neither physically nor educationally identified with the functions of the nonpublic school'", with the result that "the services are to be offered under circumstances that reflect their religious neutrality", 433 U.S. at 246-47, 97 S.Ct. at 2604-05 — precisely the opposite of the situation here presented. He conceded that Meek had "acknowledged the danger that publicly employed personnel who provide services analogous to those at issue here might transmit religious instruction and advance religious beliefs in their activities." But he noted that the Court had emphasized in Meek
433 U.S. at 247, 97 S.Ct. at 2605. Accordingly, he held that "[s]o long as these types of services are offered at truly religiously neutral locations, the danger perceived in Meek does not arise", even when the students are exclusively sectarian pupils, since "[t]he influence on a therapist's behavior that is exerted by the fact that he serves a sectarian pupil is qualitatively different from the influence of the pervasive atmosphere of a religious institution." Id. He added that there would be no excessive entanglement since "[i]t can hardly be said that the supervision of public employees performing public functions on public property creates an excessive entanglement between church and state." 433 U.S. at 248, 97 S.Ct. at 2605 (emphasis supplied).
Justice Blackmun's defense of the diagnostic and therapeutic provisions of the statute occupied, respectively, Parts V and VI of his opinion. The Chief Justice and Justices Stewart, Marshall, Powell and Stevens joined in Part V, relating to diagnostic services; the Chief Justice and Justices Stewart, Powell and Stevens joined in Part VI, relating to therapeutic services.
This analysis of the Court's decisions concerning public aid to religious school leads inescapably to the conclusion that public funds can be used to afford remedial instruction or related counseling services to students in religious elementary and secondary schools only if such instruction or services are afforded at a neutral site off the premises of the religious school. The Supreme Court's Establishment Clause jurisprudence from Everson to Wolman has been entirely consistent on the point that whatever forms of state aid may be given to religious elementary and secondary schools, these must not create a risk, sufficiently significant to require policing, that public school personnel will act, even unwittingly, to foster religion. Teachers and those who provide clinical and guidance services of the sort here at issue are engaged in occupations in which the performance of one's duties may be subtly and all too easily influenced by a sectarian milieu.
2) Appellees' attempted distinction based on the working of New York City's plan
Appellees' principal basis for urging us to sustain the validity of the program here at issue is that the position taken by the Court in Meek, as reaffirmed and refined in Wolman, must yield to the considerable evidence concerning the actual working of the City's provision of on-premises remedial instruction and guidance services. Analysis will show that this evidence, even if taken at face value, goes mainly to appellees' contention that New York City's plan has not advanced religion, and a complete and sufficient answer, as already pointed out, is that Meek did not rest on a conclusion that Act 194 had actually fostered religion but rather on a conclusion that, in order to be sure that it would not, Pennsylvania would be required to monitor its operation so closely as to violate the entanglement test, and we place our decision on that ground without need to decide whether New York City's program fails Lemon's "primary effect" test. However, in the interest of completeness and in deference to the three-judge court in PEARL and the district judge here, we shall state other reasons for finding appellees' argument to be flawed.
First, as regards their contention that Title I has not fostered religion, appellees experience the difficulty always confronted by one having to prove a negative. Even if the evidence were still more extensive than it is, it could not dispel the possibility that in some significant number of instances a public school teacher has succumbed to, or indeed embraced, the religious influences that bear on anyone offering instruction or guidance in rooms that are part and parcel of a religious school, although religious symbols and artifacts have been removed therefrom.
Second, in resisting the charge that Title I has led, or may lead, to a fostering of religion, the appellees' arguments too often invoke "mosts" and averages. Thus, we are told that there is little risk because 78% of all Title I teachers and other professionals spent less than five days a week in the same public school and worked in more than one. From the perspective of the Establishment Clause, however, it is more important that 22% did work five days a week in the same school, thereby becoming regular components of the religious school's teaching complement, with the special vulnerability to religious influence that this entails. We are likewise unmoved by the statistic that children in 180 of the 231 nonpublic schools receiving Title I services got them from itinerant teachers or professionals. The more significant statistic is that children in 51 nonpublic schools received remedial instruction from public school teachers who were regularly in such schools. Similarly, the fact that a large majority of the public school teachers and other professionals work in nonpublic schools with religious affiliations different from their own does not avoid the conclusion that many of them work — some five days a week — in schools having the same religious affiliation, with consequent enhancement of the danger that the religious atmosphere of the school will penetrate into the remedial instruction or other services.
Third, the whole basis of appellees' argument, namely, that no harm has been proved to have been done in the past is a fundamentally wrong approach to the problem of public aid to religious schools. There is no guarantee that what seems to have been an enlightened approach by the City and the Board to the administration of its plan for sending public school personnel into religious schools will continue. Yet taxpayers like these plaintiffs, who are interested in the preservation of the Establishment Clause and on whom and whose organizations the burden of enforcement in cases like these largely rests, cannot reasonably be expected to mount perpetual guard. In our view, the Court has been wise in relying upon its reasoned apprehension of potentials rather than sanctioning case-by-case determinations of the precise level of risk of fostering religion, since such an empirical approach would inevitably lead to increased litigation in an area where some degree of certainty is needed to prevent constant controversy. Justice Blackmun may have been unduly sanguine when he stated in Roemer, supra, 426 U.S. at 754, 96 S.Ct. at 2348, that "there is little room for further refinement of the principles governing public aid to church-affiliated public schools." But there could be no greater step away from the goal of reasonable certainty than to adopt a rule that the validity of a program should hinge on its precise workings from year to year.
Fourth, any breach of the principle of Meek that the line is to be drawn at sending public school teachers and other professionals into religious schools could have consequences going far beyond the program at issue here. We see no principled basis for limiting the position urged by appellees to remedial instruction or clinical and guidance services. One can readily think of other subjects — ranging from chemistry, physics, and mathematics to physical education and arts and crafts — where it would be easy to devise courses as
Fifth, appellees' arguments ignore the symbolic significance of the regular appearance of public school teachers in religious schools. More than twenty years ago, the Court elucidated the "neutrality" test toward religion as stemming "from a recognition of the teachings of history that powerful sects or groups might bring about a fusion of governmental and religious functions or a concert or dependency of one upon the other to the end that official support of the State or Federal Government would be placed behind the tenets of one or of all orthodoxies." Abington School District v. Schempp, 374 U.S. 203, 222, 83 S.Ct. 1560, 1571, 10 L.Ed.2d 844 (1963). Quite recently the Court has said, "the mere appearance of a joint exercise of legislative authority by Church and State provides a significant symbolic benefit to religion in the minds of some by reason of the power conferred." Larkin v. Grendel's Den, Inc., 459 U.S. 116, 103 S.Ct. 505, 74 L.Ed.2d 297, 306 (1982). Under the City's plan public school teachers are, so far as appearance is concerned, a regular adjunct of the religious school. They pace the same halls, use
3) Appellees' argument that the City's religious schools are not predominantly religious
Another distinction sought to be drawn by appellees is that the religious schools here in question are not of the same sort as those in Meek. In order to prevail on the entanglement issue on this basis, appellees would have to sustain the position that the schools are so nearly secular that significant surveillance is not required. No such position can be sustained.
The argument takes off from the fact that the complaint in Meek alleged that the schools there in question were of the sort described in the margin.
With respect to the facts, we take the affidavit of Monsignor Healy as making the most complete statement of appellees' position. Although the affidavit is persuasive that many, perhaps most, of the schools in the Archdiocese of New York receiving Title I assistance do not exhibit all the characteristics listed in the Meek complaint, a careful reading discloses that many of the schools have many of the characteristics and some may have all. Indeed, the picture that emerges is of a system in which religious considerations play a key role in the selection of students and teachers, and which has as its substantial purpose the inculcation of religious values.
However, as stated above, we need not go so far. When the Court struck down Act 194, relating to state provision of "auxiliary services", it relied on entanglement grounds. What mattered, therefore, was the risk that public employees would consciously or unconsciously foster religion, and the entangling prophylaxis that efforts to prevent this would entail. Hence it was enough that the teachers and other professionals employed under Act 194 were "performing educational services in schools in which education is an integral part of the dominant sectarian mission and in which an atmosphere dedicated to the advancement of religious belief is constantly maintained."
Beyond this, the kind of inquiry suggested by appellees is neither possible nor permissible. There is no indication that the City has ever made any inquiry into the precise degree of religiosity of each of the religious schools into which Title I personnel are sent and it would be expecting altogether too much of these six plaintiffs or their counterparts in a subsequent case to do so. Furthermore, conditions change. One archbishop of New York or bishop of Brooklyn may be content to maintain an atmosphere only moderately dedicated to the advancement of religious belief; his successor may require more. For the City to maintain a constant watch on the religious content of the schools would constitute another aspect of the "entanglement" which the Establishment Clause forbids.
We recognize that the picture of the schools' secular character painted in the affidavits bears some resemblance to that of the religiously affiliated colleges that figured in Roemer v. Maryland Public Works Board, supra note 13, 426 U.S. 736, 755-56, 96 S.Ct. 2337, 2349, 49 L.Ed.2d 179. The similarity, however, is far from complete, as a comparison with the schools described by Monsignor Healy makes clear. Although the Court held that they were not "pervasively sectarian" for purpose of Lemon's "primary effect" test, none of the four colleges in Roemer received funds from or made reports to the Catholic church; here some of the Catholic schools do receive such funds and all are under the supervision of the diocese. In Roemer attendance at Catholic religious exercises was not required; here it is. In Roemer there was no "actual college policy" of beginning the classes with prayer; here there is a uniform practice of beginning or ending the school day or a particular class with prayer. In Roemer the student bodies were "chosen without regard to religion"; here Catholics are preferred. Still more important are the differentiating factors with respect to entanglement. Here, as in Lemon but not in Roemer, we are dealing with elementary and secondary schooling; the aided schools are under the general supervision of the Roman Catholic diocese; and each school has a local Catholic parish that assumes ultimate financial responsibility for it. According to the Roemer Court, these and other factors make "impossible what is crucial to nonentangling aid programs: the ability of the State to identify and subsidize separate secular functions carried out at the school, without on-the-site inspections being necessary to prevent diversion of the funds to sectarian purposes", 426 U.S. at 765, 96 S.Ct. at 2353. See also Tilton v. Richardson, supra, 403 U.S. 672, 687, 91 S.Ct. 2091, 2100, 29 L.Ed.2d 790 (finding only "minimal", nonentangling surveillance necessary in case of sectarian colleges which did not have religious indoctrination as their substantial purpose).
4) Other arguments
Finally we shall deal briefly with other arguments made by appellees, although the short answer to all of them is that they bear on the question of "primary effect", not on the entanglement issue which was central to the Court's decision in Meek and to our decision here.
A second argument is that the Title I program affords aid to the children rather than the schools. This is subject to three answers, any one of them sufficient. The first is that the same argument could have been made in Meek. The second is that the aid here, to wit, the provision of teachers and other professionals, is furnished to the school on its application, although the ultimate beneficiary may be the student. The third is what the Court said in Nyquist, supra, 413 U.S. at 785-86, 93 S.Ct. at 2971-72, and in Wolman, supra, 433 U.S. at 250, 97 S.Ct. at 2606.
Finally, appellees, particularly relying on the recent decision in Lynch v. Donnelly, ___ U.S. ___, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984), argue that Title I involves no unconstitutional advancement of religion because the Government's assuming the burden of remedial instruction in religious schools is only "indirect", "remote" or "incidental" advancement. But this argument again ignores that Meek did not rely on the second prong of the Lemon test, to wit, benefit to religion, but on the third, excessive entanglement.
As said by then District Judge Higginbotham, dissenting from the portion of the decision of the three-judge court in Meek v. Pittenger, supra, 374 F.Supp. 639, 663, which affirmed the constitutionality of Pennsylvania's provision of auxiliary services in religious schools, "there is a tugging appeal to one's humanitarian feelings and interest over the difficulties which will confront nonpublic schools" if New York City's long-standing plan for implementing Title I by sending remedial teachers and counselors into religious schools is invalidated. These schools may well be unwilling or unable to pay for such auxiliary services with their own resources. While other ways of using Title I funds for the benefit of students in religious schools can be found, these, as shown in Wolman, are almost certain to be less effective, more costly, or both. This is a hard case, and hard cases, like great cases, as Justice Holmes reminded us in Northern Securities Company v. United States, 193 U.S. 197, 400-01, 24 S.Ct. 436, 486-87, 48 L.Ed. 679 (1904) (dissenting opinion), can make bad law. We fully understand and appreciate why the three-judge court in PEARL and the district judge here struggled to find constitutional justification for a program
However, efficiency was not the objective of the framers of the Bill of Rights; they aimed to restrain government from certain acts which legislative majorities had determined to be wise. See Stanley v. Illinois, 405 U.S. 645, 656, 92 S.Ct. 1208, 1215, 31 L.Ed.2d 551 (1972) ("But the Constitution recognizes higher values than speed and efficiency."). Our task here, while difficult, is easier than was Judge Higginbotham's. He wrote before the Supreme Court had decided Meek; we write thereafter. As we have repeatedly said, nothing in this extensive record shows that the surveillance under New York City's plan is significantly different from that contemplated by the Meek Court, and we must reiterate that this portion of Meek was decided on the ground of entanglement, not aid to religion. We cannot escape the conviction that, despite the attempted distinctions, appellees are really asking us to say that Meek was wrongly decided — that the majority, although expressly addressing the issue, see 421 U.S. at 371, 95 S.Ct. at 1766, did not adequately appreciate the difference between the surveillance of religious school teachers condemned in Lemon and the surveillance of public school teachers in religious schools condemned in Meek. Whatever the merits of that argument may or may not be, we are nevertheless bound by the Meek decision, see Hutto v. Davis, 454 U.S. 370, 375, 102 S.Ct. 703, 706, 70 L.Ed.2d 556 (1982). Moreover, we have identified some considerations beyond those discussed in Meek which seem to us to call for its result.
We therefore reverse the order of the district court granting summary judgment to appellees and direct it to enter judgment granting appellants' cross-motion for a judgment declaring that New York City's plan violates the Establishment Clause and an appropriate injunction. The district court should afford sufficient time for the City to propose and the Secretary to approve an alternative plan. For our part we shall stay the issuance of the mandate until thirty days after the final disposition of any timely petition for rehearing or suggestion for rehearing en banc, in order to enable appellees, if they remain aggrieved, to petition the Supreme Court for certiorari (or, if they should consider this appropriate, to appeal under 28 U.S.C. § 1252), and, if such a petition be filed and/or such an appeal be taken, until the final disposition thereof.
This language, as shown by n. 18, was a paraphrase of the Senate Report, not a holding of constitutionality.
Justice White, also concurring, said, 417 U.S. at 429, 94 S.Ct. at 2289, that he was
Justice Douglas, dissenting, id., thought the Court should have decided that none of the proposed forms of aid to parochial schools was constitutional.
Justices White and Rehnquist furnished the majority by reiterating and amplifying the views expressed in the former's dissent in Lemon and the latter's dissent in Meek. Justices Brennan and Marshall dissented on the grounds set forth in the former's separate opinion in Lemon. Justice Stewart's dissent made particular point of the fact that theology courses were a compulsory part of the curriculum and that the findings of the district court with respect to the nature of the instruction in those courses differed radically from those in Tilton, and the noncategorical nature of the grants; he also agreed with the views of Justices Brennan and Stevens. 426 U.S. at 773-75, 96 S.Ct. at 2357-58. The latter's dissent expressed agreement with Justice Brennan's views; he "would add emphasis to the pernicious tendency of a state subsidy to tempt religious schools to compromise their religious mission without wholly abandoning it." 426 U.S. at 775, 96 S.Ct. at 2358.
For our purposes the most important thing about Roemer is Justice Blackmun's reaffirmation and explication of Meek. Referring to the portion of that opinion relating to "auxiliary services" ("remedial instruction, counseling and testing, and speech and hearing therapy"), he said, 426 U.S. at 754, 96 S.Ct. at 2348.
He added, id.:
Justice Stevens dissented from portions of the opinion that had sustained various parts of the statute. He expressed preference for abandoning the three-part test of Lemon and returning to Justice Black's shorter formulation in Everson, supra, 330 U.S. at 16, 67 S.Ct. at 511. He conceded, however, that "[t]he State can plainly provide public health services to children attending nonpublic schools", and thought that "[t]he diagnostic and therapeutic services described in Parts V and VI of the Court's opinion may fall into this category". Hence, although having "some misgivings", he was "not prepared to hold this part of the statute invalid on its face." 433 U.S. at 266, 97 S.Ct. at 2615. Of course, the therapeutic services described in Part VI of the opinion were to be furnished only on public premises.
421 U.S. at 356, 95 S.Ct. at 1758. See also the rather similar list in the opinion of the three-judge court quoted in Nyquist, supra, 413 U.S. at 767-68, 93 S.Ct. at 2962-63.
Monsignor Healy conceded that "[a] concern for religion and religious values has always been central to the Catholic philosophy of education" and that "the concern for religion and religious values ... is central to the philosophy of Catholic schools", although he maintained that this "in no way dilutes or distorts the content of what would be considered secular, as opposed to religious education courses." The religious education in the schools "reflects a concern that students receive, in their normal educational setting, an exposure to the teachings of the Roman Catholic Church and Christianity in general," although it was asserted that none of the schools "compel[s]" its students to believe anything. Noting that the New York Catholic schools in Nyquist and Levitt, which, after all, included the very ones here involved, were said to have "as a substantial purpose the inculcation of religious values", Nyquist, 413 U.S. at 768, 93 S.Ct. at 2963, he objected to the connotation in the word "inculcate", which, in his view, suggested "an effort to induce students to accept ideas or values through coercion". He admitted, however, that "[o]ur schools have as a central concern that students be aware of Catholic values", although he added that students were intended to "examine these values critically." "The emphasis in the religious education classes in the overwhelming majority of the schools ... is on the teachings of Christianity as the Roman Catholic Church formulates them," although "[n]o effort is made in the religious education courses ... to compel any student to accept as valid or to adhere to the beliefs of the Roman Catholic Church" (emphasis supplied). The Archdiocesan schools require the attendance of pupils at "religious activities." These typically consist of a prayer at the beginning or end of the school day, but, "[i]n addition, during regular school hours on an occasional basis most schools will schedule more formal liturgical observances, such as attendance at Mass by a class or the entire school." While we thus accept Monsignor Healy's statement that the schools of the Archdiosese do not "compel obedience to the doctrines and dogmas of the Roman Catholic Church" or otherwise "seek to coerce the conscience", this is by no means inconsistent with their having as their substantial purpose the "inculcation" of religious values, see Nyquist, supra, 413 U.S. at 768, 93 S.Ct. at 2963. To say that the schools "inculcate" such values is only to say that they earnestly seek to instill or implant them — which need not imply coercion. Cf. Webster's New International Dictionary 1261 (2d ed. 1959) (inculcate: "[t]o teach and impress by frequent repetitions or admonitions"). The fact that New York's Catholic schools do not try to compel students to espouse a particular creed hardly removes them from the class of institutions maintaining "an atmosphere dedicated to the advancement of religious belief", Meek v. Pittenger, supra, 421 U.S. at 371, 95 S.Ct. at 1766.