WILLIAM J. BENNETT, SECRETARY OF THE UNITED STATES DEPARTMENT OF EDUCATION, ET AL., APPELLANTS V. G. HUGH WAMBLE, ET AL. No. 84-1355 In the Supreme Court of the United States October Term, 1984 On Appeal From The United States District Court For The Western District of Missouri Jurisdictional Statement PARTIES TO THE PROCEEDING In addition to the Secretary of Education, several former subordinate federal officials were named as defendants in the court below. Also named as defendants were the Blue Hills Home Corporation and John P. Cole, Executive Director of the Blue Hills Home Corporation. Dempster and Pauline Ferguson, Eddie and Bernice Jimmons, Neal and Rose Plantz, Delores Snipes, Robert and Rebecca Torry, Leon and Rita Vanderfeltz, and Raphael and Hope Zapien intervened as defendants in the district court. G. Hugh Wamble was the original plaintiff in the district court. Verline Cobbins, Alma V. Burt, Helen M. Hardiman, Odessa Hill, Mae Bell Washington, Dorothy H. McDonald, Bernether Macklin, Frank Calcote, Russel M. Bradly, Walter A. Reed, Robert G. Parsons, Jr., Roy A. Dickie, William C. Heck, Jr. Clarence E. Shockly, Clinton Smith, Mack E. McCorkle, John A. Souris, Clyde Morton, Lee Shearer, Paule H. Linhardt, August Trost, Roy E. Willey, Forrest F. McBaine, Carl C. Desmond, Lyle Kenneth Vale, W. Carter Durbin, Jack C. Collister, Eldon J. Cusic, Jack Furlong, Dennis Hammontree, Thomas C. Hurt, Paul K. Kawakami, Jim S. Noel, Stanley A. Pearson, Duane C. Purdy, Larry McCrory, Joseph E. Sheets, Jr., Joseph E. Stewart, and Marcus W. Doughty intervened as plaintiffs in the district court. TABLE OF CONTENTS Opinion below Jurisdiction Constitutional, statutory, and regulatory provisions involved Statement The question is substantial Conclusion App. A App. B App. C App. D OPINION BELOW The opinion of the district court (App., infra, 1a-38a) is reported at 598 F. Supp. 1356. JURISDICTION The order of the district court (App., infra, 1a-38a) was entered on November 28, 1984. The judgment of the district court (App., infra, at 39a-42a) was entered on December 3, 1984. A notice of appeal (App., infra 43a-44a) was filed on December 24, 1984. The jurisdiction of this Court is invoked under 28 U.S.C. 1252. /1/ CONSTITUTIONAL, STATUTORY, AND REGULATORY PROVISIONS INVOLVED The relevant constitutional, statutory and regulatory provisions are set out at App., infra, at 45a-68a. QUESTION PRESENTED Whether Title I of the Elementary and Secondary Education Act of 1954, which authorizes federal funding of remedial education for educationally deprived children (in public or private schools) in low-income areas, violates the Establishment Clause of the First Amendment insofar as it authorizes the funding of secular remedial classes taught by employees of an independent contractor, under agreement with the Department of Education, on the premises of religiously affiliated private schools. STATEMENT 1. This case, like Aguilar v. Felton, juris, postponed, No. 84-237 (Oct. 9, 1984), is a challenge to the constitutionality of federally-funded remedial educational services provided to educationally disadvantaged private school children living in economically depressed areas, on the premises of the schools they regularly attend, pursuant to Title I of the Elementary and Secondary Education Act of 1965, 20 U.S.C. 2701 et seq. /2/ The legal and educational background of the Title I program is set out in detail in our brief in Aguilar (at 2-8). At issue here is the Title I program as administered in Missouri. The Missouri program, unlike the New York City program at issue in Aguilar and that in most other states, is administered by an independent contractor pursuant to an agreement with the Department of Education, in accordance with the statutory and regulatory "bypass" provisions (App., infra, 10a; see 20 U.S.C. 2740(b), 3806(b); 34 C.F.R. 200.80). Title I teachers providing remedial services in Missouri private schools are not employees of the local public school districts, but of an educational services contractor, the Blue Hills Home Corporation (BHHC). Funding for the program is provided directly by the United States Department of Education, and is deducted from the Title I funds otherwise available to the State. In all other relevant respects, the rules, regulations, programs, and procedures are the same as those in New York and other parts of the country. The early history of Title I services for private school children in Missouri is recounted in Wheeler v. Barrera, 417 U.S. 402 (1974). In Wheeler, private school parents successfully challenged Missouri's failure to provide comparable Title I services to eligible private school children (see App., infra, 6a-7a). This Court in Wheeler concluded that the State had, indeed, failed to provide comparable services to eligible nonpublic school students, as Title I requires (20 U.S.C. 2740(a)), and remanded the case for formulation of a suitable Title I plan. See 417 U.S. at 427-428. The Court declined to decide whether the remedy preferred by the plaintiffs -- on-premises remedial instruction for private school students -- would comport with the Establishment Clause. It noted that alternatives other than on-premises instruction were available, and that if on-premises instruction were adopted on remand, "the First Amendment implications may vary according to the precise contours of the plan that is formulated" (id. at 426). The Court commented (ibid.): For example, a program whereby a former parochial school teacher is paid with Title I funds to teach full time in a parochial school undoubtedly would present quite different problems than if a public school teacher, solely under public school control, is sent into a parochial school to teach special remedial courses a few hours a week. Later in 1974, Congress, concluding that the then-existing mechanism for enforcement of the nonpublic school student participation requirement (disapproval of grant applications or withholding of funds under 20 U.S.C. (1976 ed.) 241f(b), 241j, was not adequate (S. Rep. 93-763, 93d Cong., 2d Sess. 29-30 (1974)), enacted a new provision requiring the Secretary (then the Commissioner) to supply services to eligible nonpublic school students in instances where the local educational agency was unable or unwilling to do so. See 20 U.S.C. 2740(b), 3806(b). /3/ A state plan approved by the district court on remand also proved unsatisfactory (Barrera v. Wheeler, 531 F.2d 402 (8th Cir. 1976)), and representatives of several parochial schools in Missouri -- relying on the new bypass provision -- petitioned the Commissioner to implement a bypass in their state (App., infra, at 8a). In response, the Commissioner conducted an extensive investigation of four Missouri local school districts. At that time, children attending private schools in Missouri received Title I services before or after regular school hours, unlike the children enrolled in public schools, who received on-premises Title I instruction and other services during the regular school day. At the time of the initial investigation and bypass determinations, services were generally provided on private school premises, but outside of regular school hours. Subsequently, however, after the Missouri Supreme Court decision in Mallory v. Barrera, 544 S.W. 2d 556 (Mo. 1975), Title I services ceased to be provided on the premises of religiously affiliated schools even outside of regular school hours. The results of the Commissioner's investigation showed that Missouri nonpublic school students were being poorly served under Title I as compared to public school students, in violation of the Act's requirement that private school children be provided services "on an equitable basis" (20 U.S.C. 2740(b)(2), 380(b)(2)). As a result of the conditions under which the Title I services were offered, the number of private school children participating in Title I services had dropped to one-half the number of previous participants (App., infra, 8a). This was because of "student and teacher fatigue, conflicts with after school activities, late home arrival, parental concern for safety, students' conception that the after hours program was punishment, and conflicts with family obligations" (id. at 9a-10a; see Br. for the Secretary of Education in Aguilar, supra, at 1-11 n.9). Even those students who attended did not receive comparable services because of fatigue or lack of concentration and the difficulty of hiring a sufficient number of qualified specialists to provide services after the regular school day. Ibid. Moreover, the investigation revealed that fully 40% of the Title I budget for Missouri nonpublic school children was consumed by noninstructional costs (e.g., transportation and rental of facilities) and only 31.2% was spent on teachers' salaries (App., infra, 10a). By contrast, 72.8% of the budget for public school children was allocated for teachers' salaries (ibid.). On the basis of this investigative report, the Commissioner concluded on July 22, 1976, that institution of a bypass was warranted (App., infra, 10a). /4/ After soliciting bids for the provision of Title I services to nonpublic school children by an independent contractor, the Secretary entered into various contracts with the Blue Hills Home Corporation (BHHC), which were consolidated under a single statewide contract by the summer of 1980 (ibid.). This consolidated contract expired in July 1982; and a new statewide contract was entered with BHHC for the 1982-1983 school year (ibid.). The bypass contract is funded out of Title I sums withheld from the state and affected local school district (see 20 U.S.C. 2740(b)(3)(A), 3806(b)(3)(A)), and no funds are provided, directly or indirectly, to nonpublic school authorities (App., infra, 12a). According to the findings of the district court, at the time of the initial contract BHHC "appeared to be a religiously affiliated organization" (App., infra, 11a). However, the court found, by the time of the second contract BHHC "had changed its apparent character," severed its religious ties, and was brought into conformity with religious neutrality requirements (id. at 11a, 12a, 13a, 19a-20a). Under its contract with the Secretary of Education, BHHC is required to provide to eligible nonpublic school students Title I services comparable to those provided to public school children (App., infra, 12a). Accordingly, these educational services are offered on the premises of the nonpublic schools, most of which are religiously affiliated. The services include supplemental instruction in remedial reading, mathematics and language skills. Ibid. All courses are strictly supplemental to the regular curriculum of the private school, and do not supplant the school's regular offerings. See generally Bell v. Kentucky, cert. granted, No. 83-1798 (Oct. 1, 1984); 34 C.F.R. 200.72. Remedial assistance is usually provided on an individual or small group basis, with students "pulled out" of their regular classes once or several times a week for that purpose. /5/ Measures are taken by BHHC to assure religious neutrality in the provision of these on-premises Title I services (App., infra, 12a-13a). BHHC teachers are not deliberately placed in a school matching their own religion; indeed, 79% of the BHHC teachers were assigned to schools with religious affiliation different from their own. Id. at 11a. The evidence showed that BHHC teachers refrain from religious discussion and instruct students who bring up related topics to discuss them with appropriate personnel (id. at 13a). According to the district court, "there is no evidence that any BHHC teacher has advanced religious ideologies in accomplishing Title I instruction" (id. at 26a). BHHC supervisors inspect the on-premises Title I classroom facilities to ensure that religious symbols are not present; Title I teachers are monitored and trained solely by BHHC supervisors; and extensive oral instructions are given to ensure that BHHC Title I personnel fully understand and adhere to their purely secular role in delivering Title I services (id. at 13a & n.7). The nonpublic school authorites exercise no control over the Title I program, the teachers, or the curriculum (id. at 13a). Program materials are used solely for Title I purposes (ibid.). Administrative contacts between the federal government or BHHC and private school authorities are of a limited nature, concerning scheduling, administration, and consultation about educational progress of Title I students (App., infra, 14a). In addition, since 1980, BHHC has obtained assurances from non-public school authorities concerning the suitability of the Title I facilities (ibid.). 2. This action was filed in the United States District Court for the Western District of Missouri in April 1977 by appellee Dr. G. Hugh Wamble, an individual taxpayer. He named as defendants the Commissioner (now Secretary) of Education, certain subordinate federal officials, and BHHC (App., infra, 3a). Subsequently, 32 other federal taxpayers and seven parents of eligible Title I public school students intervened as plaintiffs; and 13 parents of eligible Title I parochial school students intervened as defendants (ibid.). Appellees challenged the provision of Title I services to students attending private, religiously affiliated schools on four grounds: (1) that the statute authorizing funding for this program was unconstitutional on its face; (2) that the Commissioner's decision to invoke the statutory bypass provisions in Missouri was improper; (3) that the independent contractor selected by the government, BHHC, was not suitable because of its allegedly religious character; and (4) that the provision of Title I services on the premises of parochial schools is necessarily unconstitutional because it fosters excessive government entanglement with religion in violation of the Establishment Clause of the First Amendment (App., infra, 4a, 18a-20a). The district court (App., infra, 18a-20a) rejected appellees' first three lines of argument. The court held that Title I is constitutional on its face, in reliance on Wheeler v. Barrera, supra, "because it may be administered within the confines of the Constitution" (App., infra, 18a). The court upheld the Commissioner's (now the Secretary's) decision to invoke the bypass in Missouri, finding that the decision "was supported by a history of imbalanced Title I services for Missouri's nonpublic school students, by substantial evidence gathered by the USDOE investigating team and by a consideration of the relevant facts" (id. at 19a). Finally, the court concluded that any challenge to the religious character of BHHC is now "moot" because of the changes in BHHC under the second contract (id. at 19a-20a). However, the district court held (App., infra, 4a-5a, 38a) that the Title I bypass program in Missouri is unconstitutional as currently administered. In so holding, the district court expressly adopted the analysis of the Second Circuit in Felton v. Secretary, United States Department of Education, 739 F.2d 48 (2d Cir. 1984), juris. postponed sub nom. Aguilar v. Felton, No. 84-237 (Oct. 9, 1984), which the district court found to be "strikingly similar in its facts and issues to the case at bar" (App., infra, 2a n.1). Applying the three part test of Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971), the district court concluded that the Title I program "serves a purely secular and nondiscriminatory legislative end" (App., infra 25a). Moreover, the court found that "there is no evidence that any BHHC teacher has advanced religious ideologies in accomplishing Title I instruction" (id. at 26a) and that "the nonpublic schools are not relieved of any financial responsibility" by the program (ibid.). However, the court ultimately found itself unable to make the "'metaphysical judgments'" necessary to resolve the question whether the program -- though having the "primary" effect of benefitting children -- might also have "the direct and immediate effect of advancing religion." App., infra, 27a, quoting Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 783-784 n.39 (1973). Accordingly, the court's holding of unconstitutionality rested solely on the "excessive entanglement" prong of the Lemon test. Much like the court of appeals in Aguilar v. Felton, supra, the district court did not find it necessary to identify any specific instances in which the on-premises Title I program had in fact resulted in an untoward entanglement between religious and governmental officials. Rather, the court held (App., infra, 32a-33a (emphasis in original)), that "(i)nstruction conducted on the premises of pervasively sectarian institutions * * * creates in Missouri an unacceptable risk that teachers here will foster religion and the corresponding necessity for excessively entangling surveillance." While noting that its "holding (is) based on (the court's) finding that the Title I rooms are not truly religiously neutral" (id. at 33a n.13), the court concluded that "(r)eligious neutrality cannot exist on the premises of a pervasively sectarian institution" (id. at 34a). Accordingly, the Title I contractor in Missouri failed to perform what the court characterized as "a nearly impossible task" -- that of "reviewing both the content and the total environment of instruction to determine that whatever is transmitted adheres to the restrictions imposed by the statute and by the Constitution" (id. at 32a). Having declared that "the Title I bypass as currently administered in Missouri on the premises of religiously affiliated schools violates the First Amendment" (App., infra, 38a), the district court "permanently enjoined" the program's "further administration in that manner" (ibid.). The court, however, stayed its injunction sua sponte "pending disposition by the Supreme Court of (Aguilar)" (ibid.). THE QUESTION IS SUBSTANTIAL This case is one of several suits that have challenged the constitutionality of the federal Title I program insofar as it provides public funding for secular remedial educational services on the premises of religiously affiliated schools. See Aguilar, supra; National Coalition for Public Education & Religious Liberty v. Harris, 489 F. Supp. 1248 (S.D.N.Y.), appeal dismissed for want of juris., 449 L(B) (W.D. Ky. filed Oct. 1, 1980). Cf. School District of Grand Rapids v. Ball, cert. granted, No. 83-990 (Feb. 27, 1984) (Establishment Clause challenge to state-funded programs providing secular, nonsubstitutionary courses to private school students on the premises of their own schools). The decision below, if not reversed, will frustrate a congressional judgment of long standing that otherwise eligible public and private school students should receive equitable and comparable remedial assistance from Title I, without discrimination on the basis of their constitutionally protected choice to attend a religiously affiliated nonpublic school. The decision enjoins implementation of the Title I program through the only means found by the Secretary and other responsible education professionals to be educationally sound in this context -- instruction on the premises of a child's own school, during regular school hours. The losers are the educationally and economically disadvantaged children, in both public and private schools, who will bear the cost of converting the program to a more expensive, less educationally effective, method of operation. The issue is substantial for the same reasons here as it was in Aguilar. Here, the district court, like the Second Circuit in Aguilar, has based its constitutional holding not on an assessment of the extensive factual record decumenting the actual operation of the program at issue, but on a priori suppositions about the risks of allowing publicly paid employees to teach in nonpublic schools. But this Court's decisions do not establish a per se rule absolutely forbidding publicly paid employees from providing remedial instruction on the premises of religiously oriented schools. See Br. for the Secretary of Education in Aguilar, supra, at 39-41, Aguilar, supra. The facts of this case furnish no basis for concluding that the federal Title I bypass program in Missouri fosters a constitutionally impermissible degree of entanglement between church and state or violates the Establishment Clause in any other way. Indeed, the district court itself concluded that the BHHC teachers had not advanced "religious ideologies" in their Title I classes and that the religiously affiliated schools involved were not relieved by the prorgram of "any financial responsibilities." Given this record -- and the total absence of any evidence that the "surveillance" or "monitoring" required to bring it about has been excessive or intrusive -- the court evidently reached its conclusions not on the basis of the facts, but in spite of the facts. In any event, the constitutional issue presented by this case is virtually identical to that now before this Court in Aguilar; and it is closely related to the issue presented in Grand Rapids. The district court below described Aguilar as "strikingly similar in its facts and issues" and expressly adopted the analysis of the Second Circuit in Aguilar (App., infra, 2a). /6/ Like the Second Circuit, the district court here relied primarily on the conclusion that an on-premises program must, as a matter of law, violate the Establishment Clause because of a supposed unavoidable potential for fostering excessive government entanglement with religion. Our position in Aguilar, however, is that to hold a major statutory program unconstitutional (especially one so vital to the national goal of promoting equal opportunity through improved basic education for disadvantages children), a federal court must (at the least) identify some significant concrete instance in which one of the interests protected by the Constitution has in fact been infringed. The district court has not done so here, and its factual findings strongly suggest that there has been no actual constitutional infringement. Accordingly, notwithstanding any factual or legal distinctions there may be between this case and Aguilar, it is quite clear that this Court's decision in Aguilar (as well as its decision in Grand Rapids) will have a direct bearing on the outcome here. Therefore, because Aguilar has already been briefed and argued and is likely to be decided by the end of this Term, there is no reason to litigate this case further on the merits until the Court decides Aguilar. Once Aguilar has been decided, the Court could probably dispose of this case in summary fashion in light of the decision in Aguilar. CONCLUSION This appeal should be held for disposition in light of Aguilar v. Felton, Nos. 84-237. In the alternative, probable jurisdiction should be noted. Respectfully submitted. REX E. LEE Solicitor General RICHARD K. WILLARD Acting Assistant Attorney General CHARLES FRIED Deputy Solicitor General MICHAEL W. McCONNELL Assistant to the Solicitor General ANTHONY J. STEINMEYER MICHAEL JAY SINGER Attorneys Department of Justice Washington, D.C. 20530 (202) 633-2217 FEBRUARY 1985 /1/ The question of jurisdiction under 28 U.S.C. 1252 in this case is identical to that in Aguilar v. Felton, No. 84-237, notwithstanding the fact that this case comes to the Court from a district court, while Aguilar came from a court of appeals. In Aguilar, the Court, on October 9, 1984, postponed further consideration of jurisdiction to the hearing on the merits. In our brief in Aguilar (at 20-22), we argued that appellate jurisdiction lay in this Court under 28 U.S.C. 1252, and appellees did not take issue with that position. We incorporate that jurisdictional argument herein by reference. We have provided a copy of our brief in Aguilar to appellees. To protect our appeal rights in the event this Court should decide that it lacks jurisdiction under 28 U.S.C. 1252, we have filed a notice of appeal to the United States Court of Appeals for the Eighth Circuit. On February 7, 1985, the Eighty Circuit issued an order holding this case in abeyance pending this Court's disposition of Aguilar. /2/ Effective July 1, 1982, Title I was superseded by Chapter 1 of the Education Consolidation and Improvement Act of 1981, 20 U.S.C. 3801 et seq. Chapter 1 continues to provide federal financial assistance to meet the special educational needs of the educationally deprived children served under Title I while, at the same time, eliminating burdensome and unnecessary federal supervision, direction, and control. See 20 U.S.C. 3801. Although Chapter 1 generally contains fewer and less restrictive program requirements than Title I, the provisions concerning the participation of children in private schools are virtually identical. Compare 20 U.S.C. 2740 (former Title I provision) with 20 U.S.C. 3806 (current Chapter 1 provision). Moreover, Chapter 1, at 20 U.S.C. 3803, expressly incorporates by reference several sections from Title I, as follows: 20 U.S.C. 2711-2713, 2721-2722, 2761-2763, 2771-2772, 2781-2783, 2791-2792, 2841-2844, 2851-2854. Because there are no material differences between the two statutes with respect to the issues in this litigation, and because the declaratory and injunctive relief ordered by the district court (see App., infra, 38a) is not affected by the changes made by Chapter 1, this case is not moot. See, e.g., Schall v. Martin, No. 82-1248 (June 4, 1984), slip op. 2 n.2. Like the district court, we will continue to refer to the program as "Title I." /3/ The statute recognizes that, in some jurisdictions, the provision of comparable Title I services to parochial school students might be "prohibited by (state or local) law" (20 U.S.C. 2740(b), 3806(b)). The Missouri Commissioner of Education concluded that an on-premises program of Title I services for parochial school students would violate the Missouri constitution (App., infra, 8a-9a) -- a conclusion that was sustained in September 1975 by a Jackson County circuit court (id. at 10a) and, in December 1976, by the state supreme court (ibid.). See Mallory v. Barrera, 544 S.W.2D 556 (Mo. 1975). /4/ The bypass was initially instituted only in the four local school districts investigated (App., infra, 10a). On the basis of additional investigations, however, additional bypass arrangements were made, eventually resulting in bypasses of 53 Missouri districts. /5/ The district court expressly accepted the "conclusion that in the administration of this program the nonpublic schools are not relieved of any financial responsibility" (App., infra, 26a). /6/ The main factual distinction between this case and Aguilar is that this case involves a bypass program under 20 U.S.C. 2740(b), 3806(b), whereas the Title I program in Aguilar relies on regular public school teachers to provide on-premises services to nonpublic school students. We do not believe this distinction has any bearing on the constitutional issue. APPENDIX