helms v. picard 347 · tionality under the first amendment of three louisiana and one federal...

347HELMS v. PICARDCite as 151 F.3d 347 (5th Cir. 1998)

Mary L. HELMS, individually and as nextfriend of Amy T. Helms; Amy T. Helms,a minor; Marie L. Schneider, Plaintiffs–Appellants–Cross Appellees–Appellees,

v.

Cecil J. PICARD, Louisiana Superinten-dent of Public Education; KennethDuncan, Louisiana State Treasurer;Louisiana State Board of Elementaryand Secondary Education; JeffersonParish School Board System; Elton La-gasse, Superintendent of the JeffersonParish School System; Laurie E. Roll-ing, President and member of the Jeffer-son Parish School Board; Libby Moran,Vice President and member of the Jef-ferson Parish School Board; RobertWolfe, member of the Jefferson ParishSchool Board; Barry Bordelon, memberof the Jefferson Parish School Board;O.H. Guidry, member of the JeffersonParish School Board; Cedric Floyd,member of the Jefferson Parish SchoolBoard; Polly Thomas, member of theJefferson Parish School Board; GeneKatsanis, member of the Jefferson Par-ish School Board; Martin Marino, mem-ber of the Jefferson Parish SchoolBoard, Defendants–Appellees–Cross Ap-pellants,

and

Richard W. Riley, Secretary of the UnitedStates Department of Education; Unit-ed States Department of Education, De-fendants–Appellees,

and

Special Education Services Corporation,Defendant–Appellant,

and

Guy Mitchell; Jan Mitchell; Eugene Cer-ise; Kathy Cerise, Intervenor Defen-

dants–Appellees–Cross Appellants.

No. 97–30231.

United States Court of Appeals,Fifth Circuit.

Aug. 17, 1998.

Action was brought challenging constitu-tionality under the First Amendment of

three Louisiana and one federal school aidprograms as applied to parochial schools inJefferson Parish, Louisiana. The UnitedStates District Court for the Eastern Districtof Louisiana, Frederick J.R. Heebe, J., 856F.Supp. 1102, held that special education pro-gram, as applied, violated EstablishmentClause, but that parish transportation pro-gram did not. The District Court, MarcelLivaudais, J., upheld Chapter 2 program. Onappeal, the Court of Appeals, Duhe, CircuitJudge, held that: (1) the Supreme Court hasnot abandoned, nor even fundamentallychanged, the Lemon test used to evaluatewhether government aid violates the Estab-lishment Clause; (2) Louisiana’s program ofspecial education and related services forexceptional children, provided in part by full-time public school teachers in classrooms inparochial schools, as applied in JeffersonParish, does not violate the EstablishmentClause; (3) Chapter 2 of Title I of the Ele-mentary and Secondary Education Act of1965, and its Louisiana counterpart, are un-constitutional under the EstablishmentClause as applied in Jefferson Parish; and (4)agreement between school board and private,nonprofit corporation, whose ‘‘members’’were parents of children attending six paro-chial schools, to provide funds for the trans-portation of nonpublic school children to andfrom those school did not violate the Estab-lishment Clause.

Reversed and rendered in part and af-firmed in part.

1. Constitutional Law O84.5(4.1)

Government aid that directly aids theeducational function of religious schools isvalid if it meets the following requirements:(1) aid is neutral, that is, it is made availablegenerally without regard to the sectarian-nonsectarian, public-nonpublic nature of theinstitution benefited; (2) any money that ulti-mately goes to religious institutions does soonly as a result of the genuinely independentand private choices of individuals; and (3) theaid cannot indirectly finance religious edu-cation by relieving the sectarian school of

348 151 FEDERAL REPORTER, 3d SERIES

costs it otherwise would have borne in edu-cating its students. U.S.C.A. Const.Amend.1.

2. Constitutional Law O84.5(4.1)

When assessing whether a governmentaid program that benefits the educationalfunction of religious schools has the imper-missible effect of advancing religion, the cri-teria by which that aid is allocated are rele-vant in two distinct ways: whether any use ofthe aid to indoctrinate religion can be attrib-uted to the state, and, whether the criteriathemselves create a financial incentive to un-dertake religious indoctrination. U.S.C.A.Const.Amend. 1.

3. Constitutional Law O84.1

Factors used to assess whether an en-tanglement of government with religion isexcessive, which are similar to those used toexamine effect of government aid, include (1)the character and purposes of the institutionsbenefited, (2) the nature of the aid that theState provides, and (3) the resulting relation-ship between the government and religiousauthority. U.S.C.A. Const.Amend. 1.

4. Schools O7

Evidence demonstrating the insufficien-cy of a particular monitoring system is re-quired before court will conclude that publicteachers on parochial school grounds are im-permissibly inculcating religion. U.S.C.A.Const.Amend. 1.

5. Constitutional Law O84.1

Supreme Court has not abandoned, noreven fundamentally changed, the Lemon testused to evaluate whether government aidviolates the Establishment Clause; the firstprong of Lemon, which asks whether a stat-ute has a secular legislative purpose, remainsunchanged, but the Court has somewhat al-tered its understanding of the criteria usedto assess whether aid to religion has animpermissible effect, by abandoning three ofthe assumptions which underlay that prong,and has expressly recognized that the ‘‘en-tanglement’’ prong of Lemon is more proper-ly addressed as an aspect of the ‘‘effects’’prong. U.S.C.A. Const.Amend. 1.

6. Constitutional Law O84.1Test used to evaluate whether govern-

ment aid violates the Establishment Clausehas two prongs: the first prong asks whethera statute has a secular legislative purpose,and the second asks whether the aid has theeffect of advancing religion, under the threecriteria of whether the aid results in govern-mental indoctrination, whether the aid de-fines its recipients by reference to religion,and whether the aid creates an excessiveentanglement. U.S.C.A. Const.Amend. 1.

7. Constitutional Law O84.5(4.1) Schools O7

For purposes of determining whetherthere is violation of the EstablishmentClause by Louisiana’s program of special ed-ucation and related services for exceptionalchildren, provided in part by public schoolteachers in classrooms in parochial schools,equitable provision of such services is a secu-lar legislative purpose. U.S.C.A. Const.Amend. 1; LSA–R.S. 17:1941, 17:1942.

8. Constitutional Law O84.1Government may not participate in the

indoctrination of religion. U.S.C.A. Const.Amend. 1.

9. Constitutional Law O84.5(4.1)Mere presence of a publicly paid teacher

on sectarian school premises does not giverise to the presumption that those teacherswill inculcate religion in their students.U.S.C.A. Const.Amend. 1.


Louisiana’s program of special educationand related services for exceptional children,provided in part by full-time public schoolteachers in classrooms in parochial schools,as applied in Jefferson Parish, does not re-sult in government indoctrination of religion,in violation of the Establishment Clause;there is no evidence that any special edu-cation teachers have ever attempted to indoc-trinate their students, while there was somemonitoring of the teachers by parochialschool principals and there were administra-tive ties of teachers to the parochial schools,state had not abdicated its review of thesubstance of the special education instruc-


tion, and only the state has the legal duty toprovide an appropriate, free, publicly sup-ported education to every exceptional child.U.S.C.A. Const.Amend. 1; LSA–R.S.17:1941, 17:1943(2, 4), 17:1944(A)(1).

11. Constitutional Law O84.5(5) Schools O7

Tuition and the surcharge paid by par-ents of parochial school students to supple-ment salaries of publicly-employed specialeducation teachers working at those schools,to equalize the salaries of special educationteachers working in nonpublic schools tothose of special education teachers workingin public schools, could not be regarded asdirect economic benefit to those schools, inviolation of Establishment Clause, absentshowing that school makes a profit on eachstudent, that without the special educationprogram the child would have gone to schoolelsewhere, and that the school then wouldhave been unable to fill that child’s spot.U.S.C.A. Const.Amend. 1.


Louisiana’s program of special educationand related services for exceptional children,provided in part by full-time public schoolteachers in classrooms in parochial schools,as applied in Jefferson Parish, does not se-lect its beneficiaries so as create a financialincentive to undertake religious indoctrina-tion, in violation of the Establishment Clause;program selects its aid beneficiaries based onneutral, secular criteria of the exceptionalityof the child and the number of exceptionalstudents enrolled in parish and in its individ-ual school districts. U.S.C.A. Const.Amend.1; LSA–R.S. 17:1941–17:1956.


Louisiana’s program of special educationand related services for exceptional children,provided in part by full-time public schoolteachers in classrooms in parochial schools,as applied in Jefferson Parish, does not cre-ate or necessitate excessive entanglement, inviolation of the Establishment Clause; therewas no showing that monitoring system in-volving occasional visits by employees of pub-

lic school board system was insufficient toprevent or to detect inculcation of religion.U.S.C.A. Const.Amend. 1; LSA–R.S.17:1941–17:1956.

14. Constitutional Law O84.5(4.1, 5) Schools O3

Chapter 2 of Title I of the Elementaryand Secondary Education Act of 1965, and itsLouisiana counterpart, are unconstitutionalunder the Establishment Clause as applied inJefferson Parish, Louisiana, to the extentthat either program permits the loaning ofeducational or instructional equipment to sec-tarian schools; invalidity encompasses suchitems as filmstrip projectors, overhead pro-jectors, television sets, motion picture projec-tors, video cassette recorders, video camcord-ers, computers, printers, phonographs, andslide projectors, as well as the furnishing oflibrary books by the State, even from pre-screened lists. U.S.C.A. Const.Amend. 1;Elementary and Secondary Education of1965, §§ 6102, 6301(b)(2), 6401(b), 6402(a)(1),(c)(1), as amended, 20 U.S.C.A. §§ 7312,7351(b)(2), 7371(b), 7372(a)(1), (c)(1); LSA–R.S. 17:351, 17:352.

15. Constitutional Law O84.5(5)Library books are not ‘‘textbooks’’ with-

in principle that state may, without violatingEstablishment Clause, lend free textbooks toparochial schools. U.S.C.A. Const.Amend. 1.

See publication Words and Phrasesfor other judicial constructions and def-initions.

16. Constitutional Law O84.5(5) Schools O159.5(2)

Agreement between school board andprivate, non-profit corporation, whose ‘‘mem-bers’’ were parents of children attending sixparochial schools, to provide funds for thetransportation of nonpublic school children toand from those schools did not violate theEstablishment Clause, where allocation offunds to the corporation was simply one partof a broader, general program by which theState and parish provided a secular, nonin-structional service to sectarian and nonsecta-rian schoolchildren alike, and the corporationfocused on the six schools at issue becausethey had been excluded from local fundingdue to cuts in transportation funds from the


state. U.S.C.A.. Const.Amend. 1; LSA–R.S.17:158.

Lee Fox Boothby, Boothby & Yingst,Washington, DC, for Plaintiffs–Appellants–Cross–Appellees–Appellees.

Patricia Ann Dean, Andrew Tanner Kar-ron, Arnold & Porter, Washington, DC, Wil-liam Thomas D’Zurilla, Gordon, Arata,McCollam & Duplantis, New Orleans, LA,for Intervenor–Defendants–Appellees–Cross–Appellants.

Drake Stephen Cutini, Howard S. Scher,Matthew Miles Collette, U.S. Dept. of Jus-tice, Washington, DC, for Defendants–Appel-lees.

Jack A. Grant, Andree Hunter Greenleaf,Grant & Barrow, Gretna, LA, for Defen-dants–Appellees–Cross–Appellants except Pi-card, Duncan, and Louisiana State Bd. ofElementary and Secondary Educ.

David Glen Sanders, Asst. Atty. Gen., Ba-ton Rouge, LA, for Defendants–Appellees–Cross–Appellants Picard, Duncan and Louisi-ana State Bd. of Elementary and SecondaryEduc.

Marshall Beil, Catherine A. Rogers, Ross& Hardies, New York City, for Amicus Curi-ae National Committee for Public Educ. andReligious Liberty.

Marjorie Ruth Esman, New Orleans, LA,Kenneth M. Dreifach, Morrison & Foerster,New York City, for Amicus Curiae AmericanCivil Liberties Union and Anti-DefamationLeague.

Thomas A. Rayer, Sr., Denechaud & Dene-chaud, New Orleans, LA, for Defendant–Ap-pellant.

Appeals from the United States DistrictCourt for the Eastern District of Louisiana.

Before DUHiE, BENAVIDES andSTEWART, Circuit Judges.

DUHiE, Circuit Judge:

I.

This case requires us to find our way inthe vast, perplexing desert of EstablishmentClause jurisprudence. Plaintiffs, as taxpay-ers, sued Defendant Jefferson Parish SchoolBoard et al., claiming that three state andone federal school aid programs were uncon-stitutional as applied in Jefferson Parish,Louisiana.1 The District Court initiallygranted Plaintiffs’ motion for summary judg-ment on some issues. The court then con-ducted a bench trial on the remaining issuesand rendered judgment. When the case wasreassigned due to the district judge’s retire-ment, the new judge reversed some of thecourt’s earlier rulings. All told, the partiesspent some thirteen years in district courtbefore reaching this Court. During thattime the sand dunes have shifted.

II.

Plaintiffs first challenge Louisiana’s specialeducation program, codified at LA.REV.STAT.

ANN. § 17:1941–1956 (West 1982 & WestSupp.1998), as administered in Jefferson Par-ish, under the Establishment Clause. Aftera bench trial, the district court ruled that thespecial education program was unconstitu-tional as applied, because it had the imper-missible effect of advancing religion and be-cause the monitoring necessary to preventsuch an effect would result in excessive en-tanglement between church and state. SeeHelms v. Cody, 856 F.Supp. 1102, 1121(E.D.La.1994) (‘‘Helms’’).

A.

‘‘It is and shall be the duty of state, cityand parish public school systems of the stateof Louisiana to provide an appropriate, free,publicly supported education to every excep-tional child who is a resident therein.’’ LA.

REV.STAT.ANN. § 17:1941 (‘‘special educationstatute’’).2 Louisiana law defines ‘‘special ed-

1. The challenged aid programs and the proce-dural history of the case are more fully developedinfra.

2. An ‘‘exceptional child’’ is one who is

mentally disabled, gifted and talented, hardof hearing, deaf, speech impaired, severe lan-guage disordered, visually impaired, emotion-ally disturbed, orthopedically impaired, hos-pital/homebound, other health impaired,


ucation’’ as ‘‘any program of instruction with-in the preschool, elementary, and secondaryschool structures of the state, specificallydesigned to provide for different learningstyles of exceptional children.’’ LA.REV.STAT.

ANN. § 17:1943(4)(West Supp.1998). Specialeducation programs are administered by theState Department of Education (‘‘the Depart-ment’’) at the state level, and by parish orcity school boards at the parish or city levels;at those lower levels, the Department pro-vides ‘‘only general supervision and monitor-ing.’’ LA.REV.STAT.ANN. § 17:1944(A)(1)(West Supp.1998).3

The district court found that state fundsfor special education programs are allocatedto the Jefferson Parish Public School System(‘‘JPPSS’’) ‘‘based on the number of excep-tional children served by employees of thelocal school board, consistent with state-re-quired pupil/teacher ratios for the provisionof services to students with particular excep-tionalities.’’ Helms, 856 F.Supp. at 1110.The court also found that ‘‘[t]he public schoolsystem receives federal monies based on the‘child count’ of special education studentsenrolled at both public and nonpublicschools.’’ Id.

The Department or city/parish schoolboards are authorized to ‘‘enter into a pur-chase of services agreement with any otherpublic or nonpublic school, agency or institu-tion to provide free appropriate education toexceptional children in need of special edu-cation and related servicesTTTT’’ LA.REV.

STAT.ANN. § 17:1949–50 (West 1982). Pursu-ant to that authority, the Jefferson ParishSchool Board (‘‘JPSB’’) contracted with theSpecial Education Services Corporation(‘‘SESC’’) to provide special education ser-vices by public school teachers at private

schools operated under the authority of theArchdiocese of New Orleans.4 The districtcourt found that at the time of trial the soleemployee of SESC (its executive director JanJanz) was also a paid employee of the Officeof Special Education for the Archdiocese ofNew Orleans; additionally, the members ofthe SESC were

[t]he respective Presidents of the Archdio-cesan School Board and Diocesan SchoolBoard of the Roman Catholic Archdioceseof New Orleans, and the Roman CatholicDiocese of Lafayette, Baton Rouge, Hou-ma–Thibodeaux, and Lake Charles, and arepresentative to be appointed by theBishop of the Diocese of Alexandria–Shreveport, respectively.

Helms, 856 F.Supp. at 1108. The court thusconcluded that SESC was a ‘‘religiously-affili-ated corporation.’’ Id.

The availability of special education ser-vices on the premises of nonpublic schools inJefferson Parish caused a ‘‘dramatic escala-tion of requests for special-education teach-ers and aides by the approved nonpublicschoolsTTTT’’ Helms, 856 F.Supp. at 1108.Wary that such a trend might funnel off toomany students and teachers to privateschools, in 1982 the JPSB formed a commit-tee comprised of its staff and staff from theArchdiocese of New Orleans to study theproblem. The committee issued a reportrecommending, inter alia, (1) that state fund-ing for teachers and aides working in non-public schools be capped at its 1982–83 levels(excluding teachers covered under the con-tractual agreement for 1982–83 with SESC);(2) that, beginning with the 1983–84 academicyear, ‘‘the total local costs for any new posi-tions or vacancies for teachers or teacher

learning disabled, which includes attentiondeficit disordered and dyslexia, traumaticbrain injured, or autistic, and as a resultmay require special education or services.

LA.REV.STAT.ANN. § 17:1943(2)(West Supp.1998).We will note any provisions of the special edu-cation statute that have been amended since thetime of trial and whether those amendmentshave any bearing on the questions before us.

3. Additionally, the office of special education ser-vices within the Department provides ‘‘generalsupervision and monitoring of all education pro-grams for exceptional children conducted within

the state.’’ LA.REV.STAT.ANN. § 17:1944(A)(2)(West Supp.1998).

4. SESC was established as a Louisiana nonprofitcorporation in 1981. It was organized for thepurpose of ‘‘assist[ing] students who are havingacademic and behavior problems to cope in theschool environment.’’ Although SESC was origi-nally funded with $1.65 million by the 1982Legislature, the District Court found that since atleast 1987, SESC has not received any fundsfrom the State of Louisiana or any other govern-mental body. See Helms, 856 F.Supp. at 1108.


aides will be borne by the Catholic schools towhich these persons are assigned’’; and (3)that the Archdiocese would be able to estab-lish new special education classes at itsschools, but that ‘‘the total local costs TTT

[would] be the responsibility of the individualschools.’’ Id. at 1109. The JPSB approvedthe report.

The JPSB/SESC contract for the 1989–90school year provided that the JPSB wouldhire up to 14 special education teachers andup to 5 teacher assistants. These teachersand assistants were assigned to ChinchubaInstitute for the Deaf and eight parochialschools.5 Under the contract, the classroomswere to be provided by SESC at no cost tothe JPSB. The special education programsconducted in those classrooms would be su-pervised by both the JPSB and the adminis-trator of SESC.

Pursuant to the contract, SESC billed theJPSB for the cost of the special educationteachers and teacher assistants provided tothe nine nonpublic schools. For the fiscalyear 1989–90, that cost was estimated to beapproximately $149,583.00. The salary of aspecial education teacher, one facet of thosecosts, consists of (1) money from the ‘‘mini-mum foundation’’ program (i.e., money thatcomes to Jefferson Parish from the State);and (2) the local salary supplement. In thepublic schools, the JPSB pays the local salarysupplement. By contrast, in the nonpublicschools the SESC agreed to pay the supple-ment. Since 1987, SESC has been funded bycontributions from the participating nonpub-lic schools. The parents of special educationstudents attending these nonpublic schoolspay a supplemental fee to SESC, in additionto tuition they would normally pay. SeeHelms, 856 F.Supp. at 1117.

Jefferson Parish special education teachersin both public and nonpublic schools are sub-ject to the same Collective Bargaining

Agreement. A clause in the 1989–90 agree-ment states that ‘‘[p]ositions in special edu-cation classes which are provided in nonpub-lic schools and are a duplication of servicesprovided by the Jefferson Parish PublicSchool System shall be filled only after allspecial education positions in the JeffersonParish Public School System have been filledby certified special education teachers.’’ SeeHelms, 856 F.Supp. at 1110 (emphasis add-ed). Notably, however, an exception to thatclause states that ‘‘[t]he Board shall not in-voluntarily transfer special education teach-ers assigned to nonpublic schools prior to the1983–84 school session unless pupil-teacherratio changes reduce teacher needs.’’ Id. at1110–11. The district court found that thisexception functions as a ‘‘compromise agree-ment involving public school teachers provid-ing special education services at nonpublicschools.’’ Id. at 1111 (internal quotes omit-ted). Twelve of the fourteen special edu-cation teachers currently employed by theJefferson Parish Public School System andproviding services at nonpublic schools arethere by reason of the exception in the Col-lective Bargaining Agreement (‘‘the grandfa-ther provision’’). Id.

Pursuant to State regulations, the JPSBand SESC entered into an ‘‘interagencyagreement,’’ to be effective for one year fromJuly 1, 1989, the stated purpose of which wasto ‘‘formalize the cooperation and to identifythe responsibilities’’ of the two entities re-garding the special education program. SeeHelms, 856 F.Supp. at 1113. The inter-agency agreement does not specifically pro-vide for monitoring to determine whether thespecial education teacher engages in eitherreligious discussion or conduct. The contractonly provides that the principal of the non-public school ‘‘will ensure that the policiesand procedures of the [JPSB] will be fol-lowed in all areas of cooperative effort.’’ Id.6

The State, however, conducts inspections of

5. The eight parochial schools were ImmaculateConception High School, Archbishop RummelHigh School, St. Agnes Elementary School, St.Angela Elementary School, St. Benilde Elemen-tary School, St. Christopher Elementary School,St. Francis Xavier Elementary School, and St.Mary Magdalen Elementary School.

6. Nonpublic school principals are also contractu-ally bound to ‘‘enforce, apply, and follow all[JPSB] personnel policies and procedures, in-cluding but not limited to the Collective Bargain-ing Agreement, the Teacher Evaluation Program,and the Teacher Assistant Evaluation Program,in the ‘management and supervision of the teach-ers’ employed by the JPPSS.’’ Helms, 856F.Supp. at 1114.


randomly selected special education pro-grams once every three years; these inspec-tions include a thorough review of students’school records and interviews with teachersand principals. Id. at 1114.

The teaching responsibilities of eachJPPSS special education teacher are de-scribed in the Individualized Education Pro-gram (‘‘IEP’’) of each of the teacher’s stu-dents. An IEP describes each child’s entirespecial education curriculum. State regula-tions mandate that ‘‘[t]he responsibility forthe development of each initial IEP restswith the [public] school system’s special edu-cation supervisor.’’ Helms, 856 F.Supp. at1114. Religious instruction is not describedin the IEP, nor do church or religious offi-cials have any authority whatsoever over thecontent of the IEP. Id. Moreover, specialeducation teachers must and do teach onlywhat is outlined in the IEP. Id.

The District Court specifically found that:‘‘[t]he JPPSS special education teachers atnonpublic schools do not teach religion’’ Id.;‘‘[t]he special education classrooms are usedonly for special education instruction’’ Id.;and that ‘‘JPPSS special education teachersat the eight Catholic schools are not requiredto attend any religious services.’’ Id.

Special education teachers teach in self-contained or resource classrooms within eachCatholic school’s facility. JPPSS requires allspecial education classrooms to be ‘‘located inthe center of the school’’ to make it easier forstudents to get to their classroom. To thatend, most classrooms are located in the mainschool building or on the main school cam-pus.7 No sign or other special designationindicates that the special education classroomor area used is a public school classroom orarea. See Helms, 856 F.Supp. at 1115.

Nonpublic school principals may assignJPPSS special education teachers non-teach-ing custodial duties involving oversight ofstudent safety and behavior—such as lunchduty or bus duty—only in a manner consis-tent with the Collective Bargaining Agree-ment. Pursuant to that agreement, the spe-cial education teachers may also be required

to attend faculty meetings no more frequent-ly than once per month, for one hour. Seeid. at 1114.

The JPSB/SESC contract states that‘‘[t]eacher evaluation in the nonpublic schoolsfalls under the auspices of the [JPPSS];therefore, the nonpublic schools must followall policies and procedures of the [JPPSS]governing teacher evaluation.’’ The contractalso stipulates that in the nonpublic schools,principals and special education teachersshall participate in evaluation and specialeducation policies and procedures. See id. at1115. The principal of the nonpublic schoolis the ‘‘supervisor and ‘formal evaluator’ ofthe special education teachers in that school.’’See id. at 1117. The record indicates thatthe principal, through actual classroom ob-servation of the special education teachersand through interviews, performs limitedevaluations of the teachers’ ‘‘teaching abili-ties’’ and ‘‘classroom management skills.’’The record also indicates the principal’s su-pervisory role is strictly circumscribed byJPPSS. There is no evidence demonstratingthat the principals have supervisory authori-ty over the content of the special educationprogram.

The District Court made the followingfindings regarding Mary L. Cerise, a JPPSSspecial education teacher at St. Angela Meri-ci. Prior to her employment as a specialeducation teacher by JPPSS, Cerise was em-ployed by St. Angela Merici for approximate-ly ten years as an elementary educationteacher. Now, however, she informs her stu-dents that she is a JPPSS employee; parentsbecome aware of her employment when theysign the child’s IEP. In testifying about hercontacts with the principal at St. AngelaMerici, Cerise indicated that ‘‘during the dayhe often walks in and out of the classrooms.’’Cerise also testified that the principal washer immediate supervisor in that ‘‘[h]is posi-tion is to see that [she] implement[s] theprogram as outlined on the [IEP] and that[she is] carrying out the instructional objec-tives and trying to meet the needs of each

7. The one noted exception is at St. Christopher’sElementary School, where the special education

classroom is located in a portable unit.


child that is in [her] care.’’ See Helms, 856F.Supp. at 1116.

Prior to Cerise’s tenure, an employee ofJPPSS would regularly monitor Cerise’s filesand classroom activities at the school. Sinceher tenure, however, no state employee hasmonitored her classroom; instead, she writesdown everything she does in the IEP, whichis sent to an ‘‘IEP specialist’’ and then re-turned to her with accompanying commen-tary. The IEP specialist, Barbara Cavallino,a JPPSS employee, did not visit St. AngelaMerici during the 1989–90 school year, butdid visit once during the previous year. Cer-ise’s contact with the IEP specialist is nor-mally by telephone and occurs whenever shehas an ‘‘academically or IEP-related’’ ques-tion that she wants clarified. See id.

In addition to the student report cardsissued by the parochial school, Cerise mustcomplete a progress report which is requiredby the JPPSS for every special educationstudent. Cerise attends faculty meetings atSt. Angela Merici on a monthly basis. Sheattended one general workshop for all specialeducation teachers sponsored by the JPPSSat the beginning of the 1989–90 school year.See id.

Jan Janz, the sole employee and executivedirector of SESC, has ‘‘general supervision’’of the special education program provided onnonpublic school premises by the JPSB/SESC contract. She visits the special edu-cation classrooms and monitors the evalua-tions and the IEPs of the special educationstudents that are on file. Janz testified thatshe did not specifically monitor for religioussymbols in the special education classrooms,but that if she observed a religious symbol inthe classrooms, she ‘‘would ask that theyremove it.’’ Barbara Turner Windhorst, thedirector of special education from June of1982 to January of 1987, was not aware ofany JPPSS policy which required the di-rector of special education to observe wheth-er religious symbols were present in thespecial education classrooms. She did notinvestigate for the presence of religious sym-bols, nor did she recall whether any religioussymbols were present in the special edu-cation classrooms. The State of Louisianahas no policy that requires its employees to

inspect the special education classrooms forsuch symbols. See id. at 1117.

JacLynn Welsch, a volunteer teacher’s as-sistant to Jean Douglass (a JPPSS specialeducation teacher also at St. Angela Merici),testified that Douglass taught special edu-cation classes to upper grades in a partiallypartitioned classroom. The classroom alsoserves as the special education room for an-other teacher. Welsch testified that there isa crucifix in the room. See id. at 1116.

The district court ended its fact-findingswith the following conclusions:

(1) ‘‘[S]pecial education teachers employedby the [JPSB] provide special edu-cation services on the premises of paro-chial schools’’;

(2) ‘‘[T]here was no financial incentive forthe parents of special education stu-dents to choose a nonpublic school. Infact it is undisputed that the studentswould have received special educationat no cost in the public schools. In-stead, the parents of special educationstudents elected to pay an extracharge, in addition to the regular tu-ition, in order for their children toattend a parochial school’’;

(3) ‘‘The State of Louisiana is presentlydisbursing funds to Jefferson Parish toprovide special education services to allqualified children in Jefferson Parish,whether they attend public or nonpub-lic schools’’;

(4) ‘‘[N]o state, federal, or Jefferson Par-ish funds are paid directly to SESC orto the parochial schools. Rather,SESC contributes monies to the[JPSB] to help pay for the salaries ofthe JPPSS special education teacherslocated at the parochial schools.SESC receives its monies from the in-dividual schools providing the specialeducation services’’;

(5) ‘‘[T]he parochial schools have receiveda direct economic benefit by furnishingspecial education services on theirpremises. The parochial schools re-ceive tuition and a special educationsurcharge from the special educationstudents, yet they are not responsible


for the full salaries of the JPPSS spe-cial education teachers. The JPPSSspecial education teachers are paid bythe [JPSB] with funds primarily ob-tained from the State of Louisiana andsupplemented by the parochial schoolsthrough SESC’’;

(6) ‘‘[I]f the special education serviceswere not provided at the nonpublicschools, those special education stu-dents would be compelled to attendpublic schools which provide the neces-sary services at no charge to the par-ents. Thus, the nonpublic schoolswould be deprived of an economic ben-efit, that is, the tuition and the specialeducation surcharge received from thespecial education students.’’

Helms, 856 F.Supp. at 1117–18.

B.

The district court began its conclusions oflaw by holding that the eight Catholic schoolsat issue here are ‘‘pervasively sectarian.’’Helms, 856 F.Supp. at 1118, quoting Bowenv. Kendrick, 487 U.S. 589, 610, 108 S.Ct.2562, 101 L.Ed.2d 520 (1988). Regarding thefamiliar three-part test of Lemon v. Kurtz-man, 403 U.S. 602, 612–13, 91 S.Ct. 2105, 29L.Ed.2d 745 (1971), the court observed that‘‘even though Lemon has not been overruled,its continuing vitality appears to be in ques-tion.’’ Helms, 856 F.Supp. at 1118, citingLamb’s Chapel v. Center Moriches UnionFree School Dist., 508 U.S. 384, 113 S.Ct.2141, 2148 n. 7, 124 L.Ed.2d 352 (1993).

Thus, the court relied primarily on theanalysis used in the Supreme Court’s (then)most-recent Establishment Clause case, Zo-brest v. Catalina Foothills School Dist., 509U.S. 1, 113 S.Ct. 2462, 125 L.Ed.2d 1 (1993).Zobrest held that the Establishment Clausedoes not bar a school district from furnishingan exceptional child with a sign-language in-terpreter at a parochial school ‘‘in order tofacilitate his education.’’ Zobrest, 509 U.S. at14, 113 S.Ct. 2462. The district court fol-lowed the Zobrest analysis and asked wheth-er the Louisiana special education program,as applied in Jefferson Parish, more closelyresembled the school aid programs foundconstitutional in Mueller v. Allen, 463 U.S.

388, 103 S.Ct. 3062, 77 L.Ed.2d 721 (1983),and Witters v. Washington Dep’t of Servicesfor the Blind, 474 U.S. 481, 106 S.Ct. 748, 88L.Ed.2d 846 (1986), or instead more closelyresembled the school aid programs struckdown in Meek v. Pittenger, 421 U.S. 349, 95S.Ct. 1753, 44 L.Ed.2d 217 (1975), and SchoolDist. of Grand Rapids v. Ball, 473 U.S. 373,105 S.Ct. 3216, 87 L.Ed.2d 267 (1985). SeeHelms, 856 F.Supp. at 1118–19, citing Zo-brest, 509 U.S. at 7–14, 113 S.Ct. 2462.

Ultimately, the court found that ‘‘the situa-tion in the instant case more closely resem-bles Meek and Ball, rather than Mueller andWitters.’’ Helms, 856 F.Supp. at 1120–21.In the court’s view, the provision of specialeducation services on parochial school prem-ises, where the teachers are paid by a combi-nation of State and SESC funds, amounted to‘‘assistance TTT given directly to the schoolsthemselves, and not indirectly through theparents or students.’’ Id. Quoting fromMeek, the court thus concluded that theJPPSS special education teachers were ‘‘per-forming educational services in schools inwhich education is an integral part of thedominant sectarian mission and in which anatmosphere dedicated to the advancement ofreligious belief is constantly maintained.’’Id. at 1121, quoting Meek, 421 U.S. at 371, 95S.Ct. 1753. Further, the court found thatthe continuing surveillance necessary to in-sure that teachers would not inculcate reli-gion ‘‘could result in administrative entangle-ment between the parochial schools and theState and Jefferson Parish.’’ Helms, 856F.Supp. at 1121, citing Meek, 421 U.S. at 372,95 S.Ct. 1753. Consequently, the court feltitself ‘‘compelled to find that the special edu-cation statute, LA.REV.STAT.ANN. §§ 17:1941–1956, which allows state-paid teachers toteach on the premises of pervasively sectari-an institutions, violates the EstablishmentClause as applied.’’ Helms, 856 F.Supp. at1121.

C.

1.

When we view the deceptively simple


words of the Establishment Clause 8 throughthe prism of the Supreme Court cases inter-preting them, the view is not crystal clear.Indeed, when the Supreme Court itself ad-mits that it ‘‘can only dimly perceive the linesof demarcation in this extraordinarily sensi-tive area of constitutional law,’’ as a CircuitCourt bound by the High Court’s command-ments we must proceed in fear and trem-bling. See Lemon, 403 U.S. at 612, 91 S.Ct.2105, quoted with approval in Mueller, 463U.S. at 393, 103 S.Ct. 3062, and Committeefor Public Education v. Nyquist, 413 U.S.756, 761, 93 S.Ct. 2955, 37 L.Ed.2d 948(1973).

That said, we begin by observing that theSupreme Court’s most recent sermon in thisarea, Agostini v. Felton, ––– U.S. ––––, 117S.Ct. 1997, 138 L.Ed.2d 391 (1997), whichwas not available to the district court, mustcontrol the outcome here, as it presents afactual situation closely analogous to ourown. See discussion infra. Agostini over-ruled a portion of Ball, supra, a case onwhich the District Court relied. See Agosti-ni, at ––––, 117 S.Ct. at 2016, overrulingAguilar v. Felton, 473 U.S. 402, 105 S.Ct.3232, 87 L.Ed.2d 290 (1985), and overrulingin part School District of City of GrandRapids v. Ball, 473 U.S. 373, 105 S.Ct. 3248,87 L.Ed.2d 267 (1985). The crucial questionbefore us is whether Agostini mandates adifferent result than that reached by thedistrict court. We hold that it does.

Agostini considered the constitutionality ofTitle I of the Elementary and SecondaryEducation Act of 1965, 79 Stat. 27, as modi-fied, 20 U.S.C. § 6301 et seq. (‘‘Title I’’).Title I channels federal funds, through theStates, to ‘‘Local Educational Agencies’’(‘‘LEAs’’), which in turn spend the funds toprovide remedial education, guidance and jobcounseling to eligible students. See Agosti-ni, at ––––, 117 S.Ct at 2003. An eligiblestudent is one who resides within the attend-ance boundaries of a school located in a low-income area and who is failing, or is at risk offailing, the State’s student performance stan-dards. Id. at –––– – ––––, 117 S.Ct. at 2003–

04. Title I requires that funds be madeavailable equitably to all eligible children,whether they attend public or privateschools. Id. at ––––, 117 S.Ct. at 2004.

When an LEA provides Title I services tochildren attending private schools, those ser-vices are subject to heightened constraints.For example, Title I services may be provid-ed only to eligible private school studentsand, unlike at public schools, those servicestherefore cannot be provided on a ‘‘school-wide’’ basis. See id. Additionally, the LEAmust retain complete control over Title Ifunds and must retain title to all materialsused in conjunction with Title I services. Id.The LEA also must provide those servicesthrough public employees or other personsindependent of the private school and anyreligious institution. Id. Importantly, the Ti-tle I services themselves must be ‘‘secular,neutral, and nonideological,’’ and must ‘‘sup-plement, and in no case supplant, the level ofservices’’ already provided by the privateschool. Id.

The LEA in Agostini, the Board of Edu-cation of the City of New York, struggled forover a decade attempting to provide Title Iservices to private school students within itsjurisdiction. See Agostini, at ––––, 117 S.Ct.at 2004. After unsuccessful experiments in-volving the off-campus provision of services,the Board of Education implemented theplan that invoked the wrath of the Agostiniplaintiffs:

That plan called for the provision of Title Iservices on private school premises duringschool hours. Under the plan, only publicemployees could serve as Title I instruc-tors and counselors. Assignments to pri-vate schools were made on a voluntarybasis and without regard to the religiousaffiliation of the employee or the wishes ofthe private school. [A] large majority ofTitle I teachers worked in nonpublicschools with religious affiliations differentfrom their own. The vast majority of TitleI teachers also moved among the privateschools, spending fewer than five days aweek at the same school.

8. ‘‘Congress shall make no law respecting anestablishment of religionTTTT’’ U.S. CONST.

amend. I.


Agostini, at ––––, 117 S.Ct. at 2004 (citationsomitted). As an additional safeguard, publicemployees providing Title I services on pri-vate school premises ‘‘would be given a de-tailed set of written and oral instructionsemphasizing the secular purpose of Title Iand setting out the rules to be followed toensure that this purpose was not compro-mised.’’ Id. Consultations with a student’sregular classroom teacher were limited to‘‘mutual professional concerns regarding thestudent’s education.’’ Id. at ––––, 117 S.Ct.at 2005. Finally, ‘‘a publicly employed fieldsupervisor was to attempt to make at leastone unannounced visit to each teacher’sclassroom every month.’’ Id.

In 1987 six federal taxpayers sued claimingthat the Board’s Title I program violated theEstablishment Clause. At the conclusion ofthe dispute’s first lap through the Federalcourt system, the Supreme Court affirmedthe decision of the Second Circuit, holdingthat the program was unconstitutional be-cause it ‘‘necessitated an ‘excessive entangle-ment of church and state in the administra-tion of [Title I] benefits.’ ’’ Agostini, at ––––,117 S.Ct. at 2005, quoting Aguilar, 473 U.S.at 414, 105 S.Ct. 3232. Consequently, onremand the district court permanently en-joined the Board of Education from allowingState-funded ‘‘public school teachers andguidance counselors to provide teaching ser-vices on the premises of sectarian schoolswithin New York City.’’ Agostini, at ––––,117 S.Ct. at 2005.

In 1995, the Board, together with a groupof parents of parochial school children enti-tled to Title I services, moved the DistrictCourt under Federal Rule of Civil Procedure60(b), seeking relief from the permanent in-junction on the grounds that the ‘‘decisionallaw [had] changed to make legal what the[injunction] was designed to prevent.’’ Id. at––––, 117 S.Ct. at 2006, quoting Rufo v.Inmates of Suffolk County Jail, 502 U.S. 367,388, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992).Both the district court and the Second Cir-cuit denied relief, but the Supreme Courtreversed and vacated the injunction. Agosti-ni, at ––––, 117 S.Ct. at 2019.

The central question before the Court inAgostini was ‘‘whether Aguilar [had] been

eroded by [the Court’s] subsequent Estab-lishment Clause cases.’’ Id. at ––––, 117S.Ct. at 2008. To answer it, the Court firsthad to discuss the underpinnings of Aguilarand its companion case, Ball:

Distilled to essentials, the Court’s conclu-sion that the Shared Time program in Ballhad the impermissible effect of advancingreligion rested on three assumptions: (i)any public employee who works on thepremises of a religious school is presumedto inculcate religion in her work; (ii) thepresence of public employees on privateschool premises creates a symbolic unionbetween church and state; and, (iii) anyand all public aid that directly aids theeducational function of religious schoolsimpermissibly finances religious indoctri-nation, even if the aid reaches such schoolsas a consequence of private decisionmak-ing. Additionally, in Aguilar there was afourth assumption: that New York City’sTitle I program necessitated an excessiveentanglement with religion because publicemployees who teach on the premises ofreligious schools must be closely monitoredto ensure that they do not inculcate reli-gion.

Agostini, at ––––, 117 S.Ct. at 2010. TheCourt then proceeded to demonstrate how itsintervening decisions had ‘‘undermined theassumptions upon which Ball and Aguilarrelied.’’ Id.

While the Court reaffirmed the bedrockprinciple that ‘‘government inculcation of re-ligious beliefs has the impermissible effect ofadvancing religion,’’ the Court found thatcases subsequent to Aguilar had ‘‘modified intwo significant respects the approach [it]use[s] to assess indoctrination.’’ Agostini, at––––, 117 S.Ct. at 2010. The first sea-changethe Court noted in its indoctrination analysiswas that it had:

abandoned the presumption erected inMeek and Ball that the placement of publicschool employees on parochial schoolgrounds inevitably results in the impermis-sible effect of state-sponsored indoctrina-tion or constitutes a symbolic union be-tween government and religion.

Id., citing Zobrest, 509 U.S. at 13, 113 S.Ct.2462. No longer, then, would a public em-


ployee on sectarian school property ‘‘be pre-sumed to inculcate religion in the students,’’without evidence to the contrary. Agostini,at ––––, 117 S.Ct. at 2011; see also id. at––––, 117 S.Ct. at 2012 (‘‘Certainly, no evi-dence has ever shown that any New YorkCity Title I instructor teaching on parochialschool premises attempted to inculcate reli-gion in students.’’). Nor would the merepresence of a public employee on the premis-es of a religious school ‘‘create[ ] an imper-missible ‘symbolic link’ between governmentand religion.’’ Id. at ––––, 117 S.Ct. at 2011.The Court thus demolished with one swiftstroke the first two assumptions upon whichBall had stood. See id. at ––––, 117 S.Ct. at2010.

[1] The second ‘‘significant’’ alterationthe Court noted was that it had ‘‘departedfrom the rule relied on in Ball that all gov-ernment aid that directly aids the educationalfunction of religious schools is invalid.’’ Id.at ––––, 117 S.Ct. at 2011 (emphasis added).The Court, however, was somewhat crypticabout how one might distinguish betweenvalid and invalid government aid that ‘‘direct-ly aids the educational function of religiousschools.’’ From the Court’s reliance on Zo-brest, supra, and also on Witters v. Washing-ton Dept. of Services for the Blind, 474 U.S.481, 106 S.Ct. 748, 88 L.Ed.2d 846 (1986),however, we can glean the kinds of require-ments the Court might demand of such aid.First, it was crucial in the Court’s view thatany aid be neutral—that is, that any aid be‘‘made available generally without regard tothe sectarian-nonsectarian, public-nonpublicnature of the institution benefited.’’ Agosti-ni, at ––––, 117 S.Ct. at 2011, quoting Wit-ters, 474 U.S. at 487, 106 S.Ct. 748. Second,the Court required that ‘‘any money thatultimately went to religious institutions didso ‘only as a result of the genuinely indepen-dent and private choices of’ individuals.’’Agostini, at –––– – ––––, 117 S.Ct. at 2011–12, quoting Witters, 474 U.S. at 487, 106S.Ct. 748. Relative to the second require-ment, the Court noted that an aid program’seligibility criteria may ensure that the aidflows to sectarian institutions only as a ‘‘re-

sult of the private decision of individual par-ents’’ (i.e., if the aid is given based on factorsunrelated to religion, the fact that some aidis channeled to religious schools is a functionof the parents’ decision to send their childrento such schools and therefore ‘‘[can] not beattributed to state decisionmaking.’’). Agos-tini, at ––––, 117 S.Ct. at 2012, citing Zo-brest, 509 U.S. at 10, 113 S.Ct. 2462. Finally,the aid cannot ‘‘indirectly finance religiouseducation by ‘reliev[ing] the sectarianschoo[l] of costs [it] otherwise would haveborne in educating [its] students.’ ’’ Agosti-ni, at ––––, 117 S.Ct. at 2012, citing Zobrest,509 U.S. at 12, 113 S.Ct. 2462.9

[2] The criteria by which an aid programidentifies its beneficiaries may, in the Court’sview, advance religion in another way: ‘‘thecriteria might themselves have the effect ofadvancing religion by creating a financialincentive to undertake religious indoctrina-tion.’’ Agostini, at ––––, 117 S.Ct. at 2014,citing Witters, 474 U.S. at 488, 106 S.Ct. 748,and Zobrest, 509 U.S. at 10, 113 S.Ct. 2462.The Court provided a test for determiningwhether aid criteria create such an incentive:

This incentive is not present, however,when the aid is allocated on the basis ofneutral, secular criteria that neither favornor disfavor religion, and is made availableto both religious and secular beneficiarieson a nondiscriminatory basis. Under suchcircumstances, the aid is less likely to havethe effect of advancing religion.

Agostini, at ––––, 117 S.Ct. at 2014, citingWidmar v. Vincent, 454 U.S. 263, 102 S.Ct.269, 70 L.Ed.2d 440 (1981). When assessingwhether an aid program has the impermissi-ble effect of advancing religion, then, thecriteria by which that aid is allocated arerelevant in two distinct ways: whether anyuse of the aid to indoctrinate religion can beattributed to the state, and, whether thecriteria themselves create a financial incen-tive to undertake religious indoctrination.See Agostini, at ––––, 117 S.Ct. at 2014.

[3] The Court in Agostini expresslytreated the ‘‘entanglement’’ prong (often re-

9. The Court also observed that whether the aid isprovided to one student, as it was in Zobrest, orto several students at once, as it was in Agostini,

‘‘is not constitutionally significant.’’ Agostini, at––––, 117 S.Ct. at 2013.


garded as the third prong—see, e.g., Mueller,463 U.S. at 394, 103 S.Ct. 3062) of the Lemontest as ‘‘an aspect of the inquiry into a stat-ute’s effect.’’ Agostini, at ––––, 117 S.Ct. at2015, citing Walz v. Tax Com’n of the City ofNew York, 397 U.S. 664, 674, 90 S.Ct. 1409,25 L.Ed.2d 697 (1970). The Court did soobserving that, regardless how it had charac-terized the ‘‘entanglement’’ inquiry in priorcases, ‘‘the factors we use to assess whetheran entanglement is ‘excessive’ are similar tothe factors we use to examine ‘effect.’ ’’Agostini, at ––––, 117 S.Ct. at 2015. Thosefactors include (1) ‘‘the character and pur-poses of the institutions benefited,’’ (2) ‘‘thenature of the aid that the State provides,’’and, (3) ‘‘the resulting relationship betweenthe government and religious authority.’’ Id.

The Court emphasized that not every en-tanglement between government and religionoffends the Constitution:

Not all entanglements, of course, have theeffect of advancing or inhibiting religion.Interaction between church and state isinevitable, and we have always toleratedsome level of involvement between the two.Entanglement must be ‘‘excessive’’ beforeit runs afoul of the Establishment Clause.

Agostini, at ––––, 117 S.Ct. at 2015 (citationsomitted). The Aguilar Court found that theBoard’s Title I program fostered excessiveentanglement for three reasons: (1) ‘‘the pro-gram would require pervasive monitoring bypublic employees to ensure that Title I em-ployees did not inculcate religion’’; (2) ‘‘theprogram required administrative cooperationbetween the Board and parochial schools’’;and, (3) ‘‘the program might increase thedangers of political divisiveness.’’ Id., citingAguilar, 473 U.S. at 413–14, 105 S.Ct. 3232(internal quotes omitted). The AgostiniCourt began, however, by observing that thelast two grounds cannot, in and of them-selves, create an excessive entanglement,since ‘‘[t]hey are present no matter whereTitle I services are offered, and no court hasheld that Title I services cannot be offeredoff-campus.’’ Agostini, at ––––, 117 S.Ct. at2015.

[4] More importantly, the Court re-marked that, since it had abandoned theassumption that public employees on sectari-

an school premises will inevitably inculcatereligion,

we must also discard the assumption thatpervasive monitoring of Title I teachers isrequired. There is no suggestion in therecord before us that unannounced monthlyvisits of public supervisors are insufficientto prevent or to detect inculcation of reli-gion by public employees. Moreover, wehave not found excessive entanglement incases in which States imposed far moreonerous burdens on religious institutionsthan the monitoring system at issue here.

Agostini, at ––––, 117 S.Ct. at 2016, referringto Bowen, 487 U.S. at 615–17, 108 S.Ct. 2562(emphasis added). Thus, the Court will nowrequire evidence demonstrating the insuffi-ciency of a particular monitoring system be-fore it will conclude that public teachers onparochial school grounds are impermissiblyinculcating religion.

The Court concluded with the followinglanguage:

To summarize, New York City’s Title Iprogram does not run afoul of any of thethree criteria we currently use to evaluatewhether government aid has the effect ofadvancing religion: it does not result ingovernmental indoctrination; define its re-cipients by reference to religion; or createan excessive entanglement.

Agostini, at ––––, 117 S.Ct. at 2016. TheCourt then stated its holding:

We therefore hold that a federally fundedprogram providing supplemental, remedialinstruction to disadvantaged children on aneutral basis is not invalid under the Es-tablishment Clause when such instructionis given on the premises of sectarianschools by government employees pursu-ant to a program containing safeguardssuch as those present here. The sameconsiderations that justify this holding re-quire us to conclude that this carefullyconstrained program also cannot reason-ably be viewed as an endorsement of reli-gion. Accordingly, we must acknowledgethat Aguilar, as well as the portion of Ball


addressing Grand Rapids’ Shared Timeprogram, are no longer good law.

Id (emphasis added).

2.

For our purposes, Agostini is as importantfor what it did not hold as for what it did.As the emphasized language at the end of thelast section shows, Agostini only overruledthat part of Ball dealing with the SharedTime program. See also Agostini, at ––––,117 S.Ct. at 2016 (‘‘TTT overruling Aguilarand those portions of Ball inconsistent withour more recent decisions.’’). Agostini ex-plicitly left intact that part of Ball whichstruck down the Community Education pro-gram. See id.; see also Agostini, at –––– n.1, 117 S.Ct. at 2019 n. 1 (Souter, J., dissent-ing). We believe that contrasting the twoprograms in Ball will further illuminate themeaning of Agostini, for while the SharedTime program is constitutional under Agosti-ni, presumably the Community Educationprogram is not.

The Shared Time program offered classesduring the regular schooldays that were‘‘supplementary’’ to State-required core cur-riculum courses.10 See Ball, 473 U.S. at 375,105 S.Ct. 3216. By contrast, the CommunityEducation program offered courses to chil-dren and adults that commenced after theregular schooldays. Id. at 376, 105 S.Ct.3216.11 Courses offered included Arts andCrafts, Home Economics, Spanish, Gymnas-tics, Yearbook Production, Christmas Artsand Crafts, Drama, Newspaper, Humanities,Chess, Model Building, and Nature Apprecia-tion. Id. at 376–77, 105 S.Ct. 3216. TheCourt did not indicate that the CommunityEducation courses were intended to be ‘‘sup-plementary’’ to core curriculum subjects.There was evidence that both Shared Timeand Community Education courses taught atnonpublic schools were also available, per-haps in a different format, in public schools.Id.

The Ball Court noted that ‘‘[b]oth pro-grams [were] administered similarly.’’ Id.at 377, 105 S.Ct. 3216. For example, non-public school administrators decided whichcourses to offer, based on a list of coursesprovided by the Director of the program, apublic school employee. Id. Nonpublic ad-ministrators also decided which classroomswould be used for the programs, subject toinspection of the facilities by the same Di-rector. Id. The public school system‘‘leased’’ the classrooms from the nonpublicschools for a nominal weekly charge. Id.The leased classrooms had to be free of anyreligious symbols, although religious symbols‘‘[could] be present in the adjoining hall-ways, corridors, and other facilities used inconnection with the program.’’ Id. at 378,105 S.Ct. 3216. The program teacher wasrequired to post a sign outside the class-room stating that it was a ‘‘public schoolclassroom.’’ Id.

The most important difference betweenthe two programs was the status of theirteachers. See id. at 387, 105 S.Ct. 3216.The Shared Time teachers were ‘‘full-timeemployees of the public schools.’’ Id. at 376,105 S.Ct. 3216. In stark contrast,

Community Education teachers are part-time public school employees. (TTT) Be-cause a well-known teacher is necessary toattract the requisite number of students,the School District accords a preference inhiring to instructors already teachingwithin the school. Thus, virtually everyCommunity education course conductedon facilities leased from nonpublic schoolshas an instructor otherwise employed fulltime by the same nonpublic school.

Ball, 473 U.S. at 377, 105 S.Ct. 3216 (empha-sis added). While it is true that approxi-mately 10% of the Shared Time teachers‘‘previously taught in nonpublic schools, andmany of those had been assigned to the samenonpublic school where they were previouslyemployed,’’ no Shared Time teachers wereconcurrent employees of both the nonpublic

10. For example, the Shared Time program offerscourses such as ‘‘remedial’’ and ‘‘enrichment’’mathematics, reading, art, music, and physicaleducation. Id.

11. The appeal in Ball ‘‘involved only SharedTime classes at the elementary level, CommunityEducation classes at the elementary level, andthe remedial mathematics Shared Time Programat the secondary level.’’ Id. at 376 n. 1, 105S.Ct. 3216.


schools and the public school system. See id.at 376, 105 S.Ct. 3216.

Although the Ball majority invalidatedboth programs, its discussion of the Commu-nity Education program focused on the dualroles of that program’s teachers:

These [Community Education] instructors,many of whom no doubt teach in the reli-gious school precisely because they areadherents of the controlling denominationand want to serve their religious communi-ty zealously, are expected during the regu-lar schooldays to inculcate their studentswith the tenets and beliefs of their particu-lar religious faiths. Yet the premise of the[Community Education] program is thatthose instructors can put aside their reli-gious convictions and engage in entirelysecular Community Education instructionas soon as the schooldays is over. More-over, they are expected to do so before thesame religious school students and in thesame religious school classrooms that theyemployed to advance religious purposesduring the ‘‘official’’ schooldays. Nonethe-less, as petitioners themselves asserted,Community Education classes are not spe-cifically monitored for religious content.

Ball, 473 U.S. at 386–87, 105 S.Ct. 3216.Given the ‘‘conflict of functions inhere[nt] inthe situation,’’ the Court found ‘‘a substantialrisk that, overtly or subtly, the religious mes-sage [the teachers] are expected to conveyduring the regular schooldays will infuse thesupposedly secular classes they teach afterschool.’’ Id. at 387, 105 S.Ct. 3216, in partquoting Lemon, 403 U.S. at 618–19, 91 S.Ct.2105. The Court was careful not to impugnthe integrity of the Community Educationteachers, but it nonetheless found a substan-tial risk of inculcation ‘‘because the pressuresof the environment might alter [their] behav-ior from its normal course.’’ Ball, 473 U.S.at 387, 105 S.Ct. 3216, citing Wolman v.Walter, 433 U.S. 229, 247, 97 S.Ct. 2593, 53L.Ed.2d 714 (1977).

The Ball Court also found a ‘‘substantialrisk of state-sponsored indoctrination’’ in theShared Time program. Ball, 473 U.S. at387, 105 S.Ct. 3216. Notably, however, theCourt did so by indulging in an assumptionthat the Agostini Court has now expressly

disavowed—i.e., the assumption that publicemployees teaching on the premises of sec-tarian schools ‘‘may well subtly (or overtly)conform their instruction to the environmentin which they teachTTTT’’ Id. at 388, 105S.Ct. 3216. The quoted language encapsu-lates what the Agostini court identified asthe first of three now-abandoned assump-tions on which Ball relied. See Agostini, at––––, 117 S.Ct. at 2010; see also discussionsupra Part II.C.1. By contrast, the Courtinvalidated the Community Education pro-gram, not because of any unfounded assump-tions about public employees’ behavior, butinstead because of the genuine ‘‘conflict offunctions’’ present when a teacher must filltwo mutually-exclusive roles in the course ofa single schoolday. See Ball, 473 U.S. at 387,105 S.Ct. 3216.

A few other aspects of Ball bear noting.First, the Court gave no weight to whetherthe courses offered by either program were‘‘supplemental.’’ Even if the courses offeredwere, as a matter of fact, ‘‘supplemental’’insofar as they were not then offered by thenonpublic school, the Court observed that‘‘there is no way of knowing whether thereligious schools would have offered some orall of these courses if the public school sys-tem had not offered them first.’’ Id. at 396,105 S.Ct. 3216. Instead of focusing on the‘‘remedial’’ or ‘‘enrichment’’ aspects of thecourses, the Court looked more broadly totheir ‘‘general subject matter’’ (reading,mathematics, etc.), which was ‘‘surely a partof the curriculum in the pastTTTT’’ Id. Thus,‘‘the concerns of the Establishment Clausemay TTT be triggered despite the ‘supple-mental’ nature of the courses.’’ Id.

Second, the Court noted that ‘‘respondentsadduced no evidence of specific incidents ofreligious indoctrination in this case.’’ Id. at388, 105 S.Ct. 3216. Nonetheless, the Courtfrankly observed that ‘‘the absence of proofof specific incidents is not dispositive,’’ be-cause neither the religious schools nor theteachers, parents and students would haveany incentive ‘‘to complain if the effect of thepublicly supported instruction were to ad-vance the schools’ sectarian mission.’’ Id. at388–89, 105 S.Ct. 3216. The Court had earli-er noted that neither the Community Edu-


cation nor the Shared Time program wasmonitored for religious content. See id. at387, 105 S.Ct. 3216.

Finally, we think it especially noteworthythat Justice O’Connor (the author of Agosti-ni ) and (then) Chief Justice Burger dissent-ed in Ball, but only as to the Shared Timeprogram. Both invalidated the CommunityEducation program. See Ball, 473 U.S. at398, 105 S.Ct. 3216 (Burger, C.J., concurringin the judgment in part and dissenting inpart), and 473 U.S. at 398–400, 105 S.Ct.3216 (O’Connor, J., concurring in the judg-ment in part and dissenting in part). Be-cause Justice O’Connor gave specific reasonsfor distinguishing the two programs, we re-produce here the final paragraph of her par-tial concurrence:

I agree with the Court, however, that theCommunity Education program violatesthe Establishment Clause. The record in-dicates that Community Education coursesin the parochial schools are overwhelming-ly taught by instructors who are currentfull-time employees of the parochial school.The teachers offer secular subjects to thesame parochial school students who attendtheir regular parochial school classes. Inaddition, the supervisors of the CommunityEducation program in the parochialschools are by and large the principals ofthe very schools where the classes areoffered. When full-time parochial schoolteachers receive public funds to teach sec-ular courses to their parochial school stu-dents under parochial school supervision, Iagree that the program has the perceivedand actual effect of advancing the religiousaims of the church-related schools. This isparticularly the case where, as here, reli-gion pervades the curriculum and theteachers are accustomed to bring religionto play in everything they teach. I concurin the judgment of the Court that theCommunity Education program violatesthe Establishment Clause.

Id. at 398–400, 117 S.Ct. 1997 (O’Connor, J.,concurring in the judgment in part and dis-senting in part).

D.

Having in some degree clarified the legalprinciples governing our discussion, we now

apply them to the Louisiana special edu-cation program, as administered in JeffersonParish. Naturally, we walk within the pathrecently marked out in Agostini. At thesame time, however, we are mindful that thisis an area of constitutional law that is notblessed with easy answers. The most con-crete tools at our disposal are the actualschool aid programs the Supreme Court haseither validated or invalidated. Thus, al-though we apply the analysis of Agostini, ourultimate goal is to determine whether theLouisiana special education statute is morelike the constitutional aid programs approvedby Agostini (i.e., the New York City programand the Grand Rapids Shared Time pro-gram) or more like the unconstitutional pro-gram condemned by Ball (the CommunityEducation program). See, e.g., Mueller, 463U.S. at 393–94, 103 S.Ct. 3062 (employing asimilarly ‘‘comparative’’ analysis).

[5, 6] As we read Agostini, the SupremeCourt has not abandoned, nor even funda-mentally changed, the Lemon test. SeeAgostini, at ––––, 117 S.Ct. at 2010 (‘‘To besure, the general principles we use to evalu-ate whether government aid violates the Es-tablishment Clause have not changed sinceAguilar was decided.’’). The first prong ofLemon, which asks whether a statute has asecular legislative purpose, remains un-changed. See Lemon, 403 U.S. at 612–13, 91S.Ct. 2105. The Court has, however, some-what altered its ‘‘understanding of the crite-ria used to assess whether aid to religion hasan impermissible effect.’’ Id. Specifically,the Court has abandoned three of the as-sumptions which underlay the second (‘‘ef-fects’’) prong of Lemon in prior cases. Id.;see also discussion supra Part II.C.1. TheCourt has also expressly recognized that thethird (‘‘entanglement’’) prong of Lemon ismore properly addressed as an aspect of the‘‘effects’’ prong. Agostini, at ––––, 117 S.Ct.at 2015. It thus seems that, fairly restated,the post-Agostini Lemon test includes thefirst (‘‘secular purpose’’) prong plus the fol-lowing, re-tooled ‘‘effects’’ prong:

[T]he three criteria we currently use toevaluate whether government aid has theeffect of advancing religion: [does the aid]


result in governmental indoctrination[?];[does the aid] define its recipients by refer-ence to religion[?]; or [does the aid] createan excessive entanglement[?]

Agostini, at ––––, 117 S.Ct. at 2016 (bracketsadded).

1.

[7] The Supreme Court has consistentlyfound that even those State laws that runafoul of other aspects of Lemon may none-theless have a ‘‘secular legislative purpose.’’See Mueller, 463 U.S. at 394, 103 S.Ct. 3062.Following the Court’s lead, then, we willexhibit a ‘‘reluctance [in] attribut[ing] uncon-stitutional motives’’ to the State of Louisianaas we examine whether ‘‘a plausible secularpurpose for the state’s program may be dis-cerned from the face of the statute.’’ Id. at394–95, 103 S.Ct. 3062.

We need not look far. The avowed pur-pose of the special education statute is ‘‘toassure and require that the state shall fund aprogram of special education and related ser-vices for the exceptional children of thestate.’’ LA.REV.STAT.ANN. § 17:1942 (West1982). Nothing on the face of the statutebelies the Legislature’s purely secular aimsin enacting it. Indeed, one of the publicpolicies announced in the statute is to ‘‘pre-vent denials of equal educational opportuni-ties on the basis of national origin, sex, eco-nomic status, race, religion, and physical ormental handicap or other exceptionalities inthe provision of appropriate, free publiclysupported education.’’ LA.REV.STAT.ANN.§ 17:1941 (West 1982)(emphasis added). Wefind that the equitable provision of specialeducation services to exceptional children is a‘‘secular legislative purpose’’ under Lemon.See, e.g., Witters, 474 U.S. at 485–86, 106S.Ct. 748.

2.

[8] The government may not participatein the indoctrination of religion, because suchgovernment activity ‘‘has the impermissibleeffect of advancing religion.’’ Agostini, at––––, 117 S.Ct. at 2010; see Lemon, 403 U.S.at 612, 91 S.Ct. 2105. It is as easy to agreewith such a proposition in the abstract as it isdifficult to apply it to a particular govern-

mental program. The Lemon Court itselfremarked that ‘‘the line of separation [be-tween church and state], far from being a‘wall,’ is a blurred, indistinct, and variablebarrier depending on the circumstances of aparticular relationship.’’ Lemon, 403 U.S. at614, 91 S.Ct. 2105.

a.

[9, 10] Regarding indoctrination, Agosti-ni first instructs us that the mere presenceof a publicly paid teacher on sectarian schoolpremises will no longer give rise to the pre-sumption that those teachers will inculcatereligion in their students. See Agostini, at––––, 117 S.Ct. at 2011. The record in thiscase discloses no evidence whatsoever thatany of the special education teachers at theeight Jefferson Parish parochial schools haveever attempted to indoctrinate their stu-dents. The special education teachers arebound by law to teach only what is includedin a student’s IEP, and an IEP cannot de-scribe religious instruction. We will not pre-sume that qualified, conscientious state em-ployees are violating the law.

The employment status of these specialeducation teachers falls somewhere betweenthe Title I instructors in Agostini and theCommunity Education teachers in Ball. TheJefferson Parish special education teachersare full-time public employees who are notconcurrently employed by the parochialschools where they work. Thus, they do notsuffer from the ‘‘conflict of functions’’ presentin the Community Education teachers inBall. See Ball, 473 U.S. at 387, 105 S.Ct.3216. Unlike the Agostini teachers, howev-er, the Jefferson Parish teachers are, in asense, ‘‘permanently’’ assigned to their re-spective parochial schools under the terms ofthe Collective Bargaining Agreement. TheJefferson Parish teachers do not move fromschool to school, as the Agostini teachers do,and many of the Jefferson Parish teachersshare the religious affiliation of their schools.See Agostini, at ––––, 117 S.Ct. at 2004. Weobserve, however, that the Shared Timeteachers in Ball were, in a significant num-ber of cases, former employees of the schoolsat which they subsequently worked as State-


paid teachers. See Ball, 473 U.S. at 376, 105S.Ct. 3216.

Naturally, the Jefferson Parish special ed-ucation teachers have frequent contacts withtheir fellow sectarian teachers and the sec-tarian principals. The special educationteacher may even consider him or herself aninformal member of the parochial faculty, asevidenced by the fact that special educationteachers attend monthly faculty meetings.But, while admitting that we strike a finebalance, we do not find that the JeffersonParish special education teachers labor underthe same, irreconcilable ‘‘conflict of func-tions’’ that spelled doom for the CommunityEducation program in Ball, supra. The Jef-ferson Parish teachers are simply not askedto act in the capacity of a ‘‘religious school’’teacher during one part of the day, and thento assume the purely secular role of a public-ly-funded special education teacher duringanother.

We are somewhat troubled by the evi-dence indicating that the special educationteachers are monitored by both public andsectarian entities. The record shows thatspecial education teachers are subject to in-frequent visits by state personnel and areotherwise subject to the regular, albeit non-personal, supervision of state IEP special-ists. The record also shows, however, thatSESC executive director Janz as well as theparochial school principals exercise some lev-el of supervision over the special educationteachers.

If the State delegated its supervisory au-thority over the special education program tothe sectarian schools themselves, or to asectarian institution such as the SESC, thenthe program might not withstand scrutinyunder the Establishment Clause. See, e.g.,Wolman v. Walter, 433 U.S. 229, 252–55, 97S.Ct. 2593, 53 L.Ed.2d 714 (1977). We arenot persuaded, however, that the State hasabdicated its review of the substance of thespecial education instruction to the sectarian

institutions. While the record does showlimited supervision of the teachers by theSESC and the parochial school principals,that supervision seems more related to ad-ministrative matters than to assuring thatthe special education teachers do not impartreligion to the students. The State, throughits monitoring visits and through the IEPprocess, has retained sufficient authorityover the substantive aspects of the specialeducation instruction.

Agostini also instructs us that the merepresence of a publicly-paid teacher on reli-gious school premises will no longer ‘‘cre-ate[ ] an impermissible ‘symbolic link’ be-tween government and religion.’’ Agostini,at ––––, 117 S.Ct. at 2011. We need not longbelabor this point, because the record dis-closes no evidence that the special educationprogram has done anything more than placeits teachers on sectarian school premises.12

The fact that many of the teachers wereformerly employed by the same schools isinsufficient to create a ‘‘symbolic link’’ be-tween church and state, given that many ofthe Shared Time teachers in Ball shared asimilar employment history. See Ball, 473U.S. at 376, 105 S.Ct. 3216. Our view is notaltered by the fact that the special educationteachers have limited ‘‘administrative ties’’ tothe parochial schools—i.e., they attendmonthly faculty meetings; they can be as-signed bus duty or lunch duty; etc. If theSupreme Court found it neither ‘‘sensible’’nor ‘‘sound’’ to make a program’s constitu-tionality depend on where services were pro-vided, we find it equally nonsensical andunsound to make its constitutionality turn onwhether state-paid teachers attend facultymeetings or perform lunch duty. See Agosti-ni, at ––––, 117 S.Ct. at 2012.

Finally, Agostini informs us that not everyform of government aid that ‘‘directly aidsthe educational function of religious schoolsis invalid.’’ Id. at ––––, 117 S.Ct. at 2011.In distinguishing between valid and invalid

12. While we certainly do not place our imprima-tur on the presence of religious symbols in state-funded special education classrooms, the evi-dence indicating the presence, in one instance, ofa crucifix in a classroom is insufficient to showthat the Jefferson Parish special education pro-gram has created a ‘‘symbolic link’’ between

church and state. Other evidence indicates thatprogram monitors would remove such a symbolif they found it in a classroom, even though theState of Louisiana does not have an articulatedpolicy requiring inspection for, and removal of,religious symbols from public classrooms.


direct aid, we look, per Agostini, to the crite-ria for distributing the aid and for identifyingits beneficiaries, the means by which any ofthe aid might potentially benefit religiousschools, and whether the aid ‘‘relieve[s] sec-tarian schools of costs they otherwise wouldhave borne in educating their students.’’ Id.at ––––, 117 S.Ct. at 2012, citing Zobrest, 509U.S. at 12, 113 S.Ct. 2462. As discussedbefore, the district court found that Statefunds are awarded to Jefferson Parish basedon the number of exceptional students there.See discussion supra Part II.A. Whether ornot a student qualifies as ‘‘exceptional’’ de-pends on entirely secular statutory criteria.See supra note 2; see also LA.REV.STAT.ANN.§ 1943(2)(West Supp.1998). Thus, the statu-tory scheme implementing the special edu-cation program shows that any aid is ‘‘madeavailable generally without regard to the sec-tarian-nonsectarian, public-nonpublic natureof the institution benefitted.’’ Agostini, at––––, 117 S.Ct. at 2011, quoting Witters, 474U.S. at 487, 106 S.Ct. 748.

Agostini seemed to require that ‘‘any mon-ey that ultimately went to [the sectarianschools] ‘did so only as a result of the genu-inely independent and private choices of’ in-dividuals.’’ Agostini, at –––– – ––––, 117S.Ct. at 2011–12, quoting Witters, 474 U.S. at487, 106 S.Ct. 748; see also Zobrest, 509 U.S.at 9, 113 S.Ct. 2462. Relative to this require-ment, the Court instructs us to examine thecriteria by which the challenged programselects its recipients. Agostini, at ––––, 117S.Ct. at 2012. As we observed above, theLouisiana special education program selectsits recipients based solely on the ‘‘exception-ality’’ of a particular student and on thenumber of exceptional students enrolled in agiven school district. The fact that a particu-lar exceptional student is enrolled in a partic-ular school, be it sectarian or nonsectarian,results from a parental and not a governmen-tal decision. Thus, any aid flowing inciden-tally to a sectarian school occurs ‘‘only as aresult of the genuinely independent and pri-vate choices of’’ those students’ parents. SeeZobrest, 509 U.S. at 9, 113 S.Ct. 2462.

Finally, Agostini mandates that any inci-dental benefits accruing to the sectarianschools as a result of the program cannot

relieve the schools of costs they ‘‘otherwisewould have borne in educating [their] stu-dents.’’ Agostini, at ––––, 117 S.Ct. at 2012.Failure to meet this requirement presup-poses that the Jefferson Parish sectarianschools, in the absence of the special edu-cation program, would have ‘‘otherwiseborne’’ the costs of providing special edu-cation services to their exceptional students.But only the State, and not the sectarianschools, has the legal duty to ‘‘provide anappropriate, free, publicly supported edu-cation to every exceptional child’’ residing inLouisiana. See LA.REV.STAT.ANN. § 17:1941(West 1982). Since the sectarian schools arenot required to provide such an education, wefail to see how the State’s fulfilling its statu-tory obligation to do so relieves privateschools of any burden at all. This case doesnot present the situation where the Statefurnishes aid which alleviates a privateschool’s legal duty to provide, for example, astate-mandated core curriculum to its stu-dents. Cf. Ball, 473 U.S. at 396–97, 105 S.Ct.3216.

[11] The district court made much of itsconclusion that the sectarian schools receivea ‘‘direct economic benefit’’ as a result of thespecial education program, in the form of astudent’s tuition and the surcharge paid byparents to supplement the special educationteachers’ salaries. See Helms, 856 F.Supp.at 1117–18; see also discussion supra PartII.A. But to view the students’ tuition as an‘‘economic benefit’’ requires the assumptionsthat ‘‘the school makes a profit on each stu-dent; that, without the [special educationprogram], the child would have gone toschool elsewhere; and that the school, then,would have been unable to fill that child’sspot.’’ Zobrest, 509 U.S. at 10–11, 113 S.Ct.2462. The Supreme Court was unwilling tomake such assumptions and regard the deafstudent’s tuition as an ‘‘economic benefit’’ inZobrest. See id. Given the Court’s closereliance on Zobrest in Agostini, we are like-wise unwilling to make them. See Agostini,at ––––, 117 S.Ct. at 2012 (‘‘In all relevantrespects, the provision of instructional ser-vices under Title I is indistinguishable fromthe provision of sign-language interpretersunder the IDEA.’’), citing Zobrest, 509 U.S.at 12, 113 S.Ct. 2462.


Additionally, the surcharge required of pa-rochial school parents is merely intended toequalize the salaries of special educationteachers working in nonpublic schools tothose of special education teachers workingin public schools. See Helms, 856 F.Supp. at1110, 1117.13 We do not view the receipt ofsuch a surcharge from parents as any kind of‘‘economic benefit’’ to the sectarian schools.The record indicates that the surcharges arepaid into accounts earmarked for ‘‘specialeducation expenses’’ and are used exclusivelyto supplement the salaries of special edu-cation teachers. Id. at 1117. The districtcourt thus erred when it considered this sur-charge a ‘‘direct economic benefit’’ to theparochial schools. Indeed, there is no discer-nible ‘‘benefit’’ flowing to the schools fromthe surcharge; rather, the surcharge repre-sents an economic burden imposed on theparents of parochial school children who wishto secure special education services for theirchildren. The surcharge never reaches, inany meaningful way, the general coffers ofthe parochial schools.

b.

[12] We need not long consider whetherthe criteria by which the special educationprogram selects its beneficiaries ‘‘create afinancial incentive to undertake religious in-doctrination.’’ Agostini, at ––––, 117 S.Ct. at2014. We have already observed, in PartII.D.2.a, supra, that the Louisiana specialeducation program selects its aid beneficia-ries based on neutral, secular criteria: theexceptionality of the child and the number ofexceptional students enrolled in JeffersonParish and in its individual school districts.These are ‘‘neutral, secular criteria that nei-ther favor nor disfavor religion, and [the aid]is [therefore] made available to both religiousand secular beneficiaries on a nondiscrimina-tory basis.’’ Agostini, at ––––, 117 S.Ct. at2014. The Louisiana program does not ‘‘de-fine its recipients with reference to religion’’and therefore creates no financial incentiveto undertake religious instruction. Id. at––––, 117 S.Ct. at 2016. Indeed, as the dis-trict court stated:

The Court finds that there was no financialincentive for the parents of special edu-cation students to choose a nonpublicschool. In fact, it is undisputed that thestudents would have received special edu-cation at no cost in the public schools.Indeed, the parents of special educationstudents elected to pay an extra charge, inaddition to the regular tuition, in order fortheir children to attend a parochial school.

Helms, 856 F.Supp. at 1117.

c.

[13] We likewise discern no ‘‘excessiveentanglement’’ created or necessitated by thespecial education program. Now that theSupreme Court has discarded the presump-tion that publicly-paid teachers on sectarianschool premises will inculcate religion, alsorelegated to the dustbin is the ‘‘assumptionthat pervasive monitoring of [those teachers]is required.’’ Agostini, at ––––, 117 S.Ct. at2016. We have not been shown any evidencedemonstrating that the monitoring already inplace is ‘‘insufficient to prevent or to detectinculcation.’’ Id. The district court specifical-ly noted that ‘‘[t]he JPPSS special educationteachers at nonpublic schools do not teachreligion’’ and that ‘‘[t]he special educationclassrooms are used only for special edu-cation instruction.’’ Helms, 856 F.Supp. at1114. We see no reason to disturb thosefindings.

E.

In sum, we find that the Louisiana specialeducation program, codified at LA.REV.STAT.

ANN. § 17:1941–1956 (West 1982 & WestSupp.1998), does not offend the Establish-ment Clause because (1) the statute has asecular legislative purpose, and (2) the stat-ute does not have the effect of advancingreligion. See Agostini, at ––––, 117 S.Ct. at2016. We therefore REVERSE the judg-ment of the district court and RENDERjudgment declaring the Louisiana special ed-ucation program constitutional as applied inJefferson Parish.

13. In the public schools, this surcharge is paidby the JPSB. Id. at 1110; see discussion supra

Part II.A.


III.

[14] Plaintiffs also claim that Chapter 2of Title I of the Elementary and SecondaryEducation Act of 1965 (‘‘Chapter 2’’) 14 andits Louisiana counterpart, LA.REV.STAT.ANN.§ 17:351–52 (West 1982 & West Supp.1998),violate the Establishment Clause as appliedin Jefferson Parish insofar as they providedirect aid to sectarian schools in the form ofeducational and instructional materials. Ini-tially, the district court agreed and grantedPlaintiffs’ motion for summary judgment,finding that the loan of state-owned instruc-tional materials (such as slide projectors,television sets, tape recorders, maps, globes,computers, etc.) to pervasively sectarian in-stitutions had the ‘‘primary effect of provid-ing a direct and substantial advancement tothe sectarian enterprise’’ and therefore vio-lated the Establishment Clause. The courtrelied primarily on Wolman v. Walter, 433U.S. 229, 250, 97 S.Ct. 2593, 53 L.Ed.2d 714(1977), and Meek v. Pittenger, 421 U.S. 349,363, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975).

When the case was reassigned due toJudge Frederick Heebe’s retirement, JudgeMarcel Livaudais granted Defendants’ mo-tion to reconsider the court’s ruling. Follow-ing the reasoning of the Ninth Circuit inWalker v. San Francisco Unified School Dis-trict, 46 F.3d 1449, 1463–70 (1995), JudgeLivaudais found that the reasoning in Meekand Wolman, supra, had been underminedby subsequent Supreme Court cases. Hetherefore reversed Judge Heebe’s finding ofunconstitutionality and granted Defendants’motion for summary judgment, declaringChapter 2 and LA.REV.STAT.ANN. § 17:351–52constitutional, facially and as applied in Jef-ferson Parish.

A.

Chapter 2 provides financial assistancethrough ‘‘block grants’’ to state and localeducational agencies to implement eight ‘‘in-novative assistance programs.’’ See 20U.S.C. §§ 7311(b); 7312(a),(c)(1); 7351. The

challenged innovative assistance program de-scribes

programs for the acquisition and use ofinstructional and educational materials, in-cluding library services and materials (in-cluding media materials), assessments, ref-erence materials, computer software andhardware for instructional use, and othercurricular materials which are tied to highacademic standards and which will be usedto improve student achievement and whichare part of an overall education reformprogram.

20 U.S.C. § 7351(b)(2).

Chapter 2 services are to be provided tochildren enrolled in both ‘‘public and private,nonprofit schools.’’ 20 U.S.C. § 7312. Sec-tion 7372 provides that a local educationalagency shall equitably provide ‘‘secular, neu-tral, and nonideological services, materials,and equipment’’ to students who are enrolledin private nonprofit elementary and second-ary schools within its boundaries. 20 U.S.C.§ 7372(a)(1). Chapter 2 funds for the inno-vative assistance programs must supplement,and in no case supplant, ‘‘funds from non-Federal sources.’’ 20 U.S.C. § 7371(b). Thecontrol of Chapter 2 funds, as well as title toall Chapter 2 ‘‘materials, equipment, andproperty,’’ must be in a public agency, ‘‘and apublic agency shall administer such fundsand property.’’ 20 U.S.C. § 7372(c)(1). Inaddition, any services provided for the bene-fit of private school students must be provid-ed by a public agency or through a contrac-tor who is ‘‘independent of such privateschool and of any religious organizations.’’20 U.S.C. § 7372(c)(2).

Once Louisiana receives its Chapter 2funds from the Federal government, the des-ignated State Educational Agency (‘‘SEA’’)allocates 80 percent of the funds to LocalEducational Agencies (‘‘LEAs’’). Eighty-fivepercent of those funds are earmarked forLEAs based on the number of participatingelementary and secondary school students inboth public and private, nonprofit schools;

14. On October 20, 1994, Congress enacted theImproving America’s School Act of 1994, Pub.L.103–382, 108 Stat. 3518. Former Chapter 2 isnow labeled ‘‘Subchapter VI—Innovative Edu-cation Program Strategies’’ and is codified at 20

U.S.C. §§ 7301–7373 (West Supp.1998). Forease of reference, we will continue to refer tonew Subchapter VI as ‘‘Chapter 2.’’ We will citeindividual sections, however, by reference to ci-tations in the current United States Code.


15% go to LEAs based on the number ofchildren from low-income families. See 20U.S.C. § 7312(a). During the fiscal year1984–85, Jefferson Parish received $655,671in Chapter 2 funds; about 70% of thosefunds were allocated to public schools andabout 30% to nonpublic schools.

In 1984, the State instituted a monitoringprocess to ensure that Chapter 2 materialswere not being used for religious purposes.Nonpublic schools were encouraged but notrequired to sign assurances that they wouldonly use loaned materials for secular pur-poses. Additionally, LEAs made monitoringvisits to nonpublic schools, and the Statemade monitoring visits to the LEAs and tosome nonpublic schools. After the UnitedStates Department of Education conductedan on-site visit to review the Louisiana Chap-ter 2 program in September, 1984, the Loui-siana Department of Education madechanges in monitoring LEAs. It increased,for example, the frequency of on-site visitsby the Chapter 2 staff to LEAs from onceevery three years to once every two years.

The State also began reviewing the LEAs’monitoring process of the private schools.LEAs, however, have primary responsibilityin Louisiana for monitoring their Chapter 2programs and for compliance with all applica-ble State and Federal guidelines. WhenState Chapter 2 monitors visited the JPPSSin April, 1985, the monitors found that ‘‘theservices, materials, equipment, [and] otherbenefits provided to nonpublic schools’’ inJefferson Parish were not ‘‘neutral, secularand non-ideological.’’

A report of that evaluation prepared bythe Bureau of Evaluation indicates that,while the LEAs ‘‘handle most of the adminis-trative matters related to Chapter 2, thenonpublic schools make the decisions abouthow to spend their Chapter 2 allocations, andthey do so independently of one another.’’The report also states that ‘‘[e]xcept thatfunds cannot be spent for support of religiousor ideological instruction, flexibility in theuse of Chapter 2 funds puts a minimum oflimitations on the kinds of expenditures al-lowed.’’ During the 1986–87 fiscal year, forexample, of the total amount of Chapter 2funds budgeted for nonpublic schools ($214,-

080), $94,758 was spent to provide li-brary/media materials, $102,862 was spentfor instructional equipment, and $16,460 wasspent for ‘‘local improvement programs.’’

Ruth Woodward, the Coordinator of theChapter 2 program in Jefferson Parish, stat-ed that library books are ordered for non-public schools, but not for public schools.Such library books are stamped ‘‘ECIAChapter 2.’’ Woodward reviews the titles ofbooks and other Chapter 2 materials anddeletes titles she finds inappropriate. Afterreviewing library book orders from 1982,Woodward discovered approximately 191 ti-tles in violation of Chapter 2 guidelines andhad the books recalled and donated to thepublic library.

Woodward also stated that she generallymakes a single visit to a given nonpublicschool during the year. During her monitor-ing visits, she stated that she has ‘‘normally’’found that the Chapter 2 materials andequipment are used in accordance with Chap-ter 2 guidelines. A review of the instruction-al materials purchased with Chapter 2 fundsduring 1986–87 and loaned to nonpublic, pa-rochial schools reveals the following kinds ofitems: filmstrip projectors, overhead projec-tors, television sets, motion picture projec-tors, video cassette recorders, video camcord-ers, computers, printers, phonographs, slideprojectors, etc. Woodward stated that nodirect payments of Chapter 2 funds are evermade to nonpublic schools; the funds areretained and administered by her office.

The Louisiana counterpart to Chapter 2,LA.REV.STAT.ANN. § 17:351–52 (West 1982 &West Supp.1998), requires the State Board ofElementary and Secondary Education to‘‘prescribe and adopt school books and othermaterials of instruction, which it shall supplywithout charge to the children of [Louisiana]at the elementary and secondary levelsTTTT’’LA.REV.STAT.ANN. § 17:351(A)(1)(West Supp.1998). The statute also requires that theBoard, or the State Department of Edu-cation, ensure that any books or instructionalmaterials provided ‘‘are thoroughly screened,reviewed, and approved as to their con-tentTTTT’’ LA.REV.STAT.ANN.


§ 17:352(A)(1)(West Supp.1998).15 Judge Li-vaudais noted that an ‘‘overwhelming por-tion’’ of funds allocated under the Louisianastatute are used to purchase textbooks, andthat Plaintiffs have not challenged this appli-cation of the statute.

Deposition testimony indicated that libraryreference books purchased pursuant to LA.

REV.STAT.ANN. § 17:351 are ordered fromlists approved by the Louisiana Board ofElementary and Secondary Education. Ad-ditionally, books and instructional materialsmay only be ordered from state-approvedlists and sources.

B.

We will focus on the Ninth Circuit’s deci-sion in Walker, supra, because Judge Livau-dais relied heavily on its reasoning and alsobecause it is the only other Circuit decisionto have addressed the constitutionality ofChapter 2.

In Walker, a panel of the Ninth Circuitconfronted a Chapter 2 program that was, inall relevant respects, identical to the one weconfront in Jefferson Parish.16 The mostsignificant aspect of the Walker panel’s rea-soning is devoted to assessing whether Chap-ter 2 has a ‘‘primary or principal effect ofadvancing religion.’’ 17 Walker, 46 F.3d at1464–69. The panel began by observing that,with the cases of Meek, Wolman and Boardof Education v. Allen, 392 U.S. 236, 88 S.Ct.1923, 20 L.Ed.2d 1060 (1968), the SupremeCourt ‘‘drew a [constitutional] distinction be-tween providing textbooks and providing oth-er instructional materials—such as maps,overhead projectors, and lab equipment—toparochial schools or their students.’’ Walker,46 F.3d at 1464–65; see Allen, 392 U.S. at

248, 88 S.Ct. 1923; Meek, 421 U.S. at 362–63,95 S.Ct. 1753; Wolman, 433 U.S. at 237, 97S.Ct. 2593. The panel, however, was notconvinced that such a distinction was still thelaw. In its view, subsequent Supreme Courtcases—particularly, Committee for PublicEducation and Religious Liberty v. Regan,444 U.S. 646, 100 S.Ct. 840, 63 L.Ed.2d 94(1980), Ball, supra, and Zobrest, supra—had‘‘clarified the holdings of Meek and Wolman,and rendered untenable the thin distinctionbetween textbooks and other instructionalmaterials.’’ Walker, 46 F.3d at 1465. TheNinth Circuit thus held that ‘‘under Chapter2, the loaning of neutral, secular equipmentand instructional materials to parochialschools does not have the primary or princi-pal effect of advancing religion.’’ Id.

The panel read Meek as an illogical depar-ture from Allen, which had upheld a lawrequiring public school authorities to lendtextbooks, free of charge, to both public andprivate school students. Allen, 392 U.S. at248, 88 S.Ct. 1923. The panel pointed outthat ‘‘Allen TTT rests on the robust principlethat ‘the Establishment Clause does not pro-hibit a State from extending the benefits ofstate laws to all citizens without regard fortheir religious affiliation.’ ’’ Walker, 46 F.3dat 1465, quoting Allen, 392 U.S. at 242, 88S.Ct. 1923. In the panel’s view, however, theCourt’s subsequent decision in Meek depart-ed from Allen ’s reliance on neutrality whenMeek ‘‘upheld the provision of textbooks toparochial school students, but struck downthe program which loaned instructional mate-rials and equipmentTTTT’’ Walker, 46 F.3dat 1465 (citations omitted); see Meek, 421U.S. at 362, 365–66, 95 S.Ct. 1753.

15. An additional section, creating a ‘‘TeacherSupplies Fund,’’ became effective June 30, 1997,after Judge Livaudais granted Defendants’ mo-tion for summary judgment. See LA.REV.STAT.ANN.§ 17:354 (West Supp.1998), added by Acts 1997,No. 473, § 1, eff. June 30, 1997. Section 354 isnot at issue in this appeal, but we note in passingthat it provides, inter alia, State funds ‘‘for thepurchase and loan of teaching materials andsupplies’’ to nonpublic schools, under constraintssimilar to those in Chapter 2.

16. Aside from the identical statutory provisiongoverning the Walker program, the percentage

distribution of Chapter 2 funds for the 1988–89school year were substantially similar to figuresfor the Jefferson Parish program: 74% of Chapter2 benefits to public schools and 26% to privateschools in Walker, compared to, e.g., a 70%/30%split in Jefferson Parish during the 1984–85school year.

17. The panel easily concluded that Chapter 2 hasthe valid secular purpose of ‘‘improv[ing] edu-cation.’’ Walker, 46 F.3d at 1464, citing Meek,421 U.S. at 363, 95 S.Ct. 1753.


Even though the Court’s subsequent deci-sion in Wolman explicitly upheld Meek, theWalker panel believed that ‘‘[i]n reaffirmingMeek ’s holding TTT Wolman underminedMeek ’s rationale.’’ Walker, 46 F.3d at 1465;see Wolman, 433 U.S. at 238 (upholdingMeek and Allen ). Specifically, the panelconcluded that Wolman had ‘‘eviscerated’’Meek ’s premise that ‘‘any state aid to theeducational functions of a sectarian school isforbidden.’’ Walker, 46 F.3d at 1465. Wol-man did so, the panel reasoned, by ‘‘holdingas constitutional a statute under which theState prepared and graded tests in secularsubjects’’ for both public and private, paro-chial schools. Id. Thus, the Walker panelannounced that the paltry sum of Meek andWolman was

the thin distinction—unmoored from anyEstablishment Clause principles—thatstate loans to parochial schools of instruc-tional materials and equipment impermis-sibly advances religion, but state prepara-tion and grading of tests and state loans oftextbooks do not.

Walker, 46 F.3d at 1466.

In the panel’s estimation, the true death-blow to Meek ’s textbooks vs. other instruc-tional materials dichotomy came three yearslater in Regan, which ‘‘recognized this weakdistinction and clarified that the provision ofinstructional materials and equipment to pa-rochial schools is not always prohibited.’’Walker, 46 F.3d at 1466. But, as the panelrecognized in the next sentence, Reganmerely reaffirmed Wolman by ‘‘uph[olding] alaw reimbursing parochial schools for thecosts of administering tests required by theState.’’ Id.; see Regan, 444 U.S. at 655, 100S.Ct. 840 (‘‘We agree with the District Courtthat Wolman controls this case.’’). AlthoughRegan did not deal with the provision ofinstructional materials to parochial schools,and although Regan explicitly followed Wol-man and said nothing about overrulingMeek, the Walker panel nonetheless declaredwith perfect candor that

Regan thus instructs us that the differencebetween textbooks and other instructional

equipment and materials, such as sciencekits and maps, is not of constitutional sig-nificance.

Walker, 46 F.3d at 1466. In our view, such astatement could only mean that the panelthought Regan silently overruled Meek.

The Walker panel thus adopted an Estab-lishment Clause analysis based on what itidentified as ‘‘the underlying principle ani-mating Establishment Clause jurisprudence:government neutrality towards religion.’’ Id.at 1466, citing, inter alia, Zobrest, 509 U.S.at 10, 113 S.Ct. 2462. The panel stated its‘‘test’’ as follows:

Government neutrality becomes suspectwhen, in practical effect, the governmentalaid is targeted at or disproportionatelybenefits religious institutions, or when, insymbolic effect, the governmental aid cre-ates a symbolic union between church andstate.

Walker, 46 F.3d at 1467. Applying its test,the panel easily found that Chapter 2 passedconstitutional muster. First, it found thatChapter 2 benefits were ‘‘neutrally availablewithout regard to religion’’ given that ‘‘anoverwhelming percentage of beneficiaries[were] nonparochial schools and their stu-dents.’’ Id.18 Second, the panel found thatthe constraints under which Chapter 2 ser-vices were provided ‘‘adequately safe-guard[ed] Chapter 2 benefits from improperdiversion to religious use.’’ Id. at 1467–68.Finally, the panel reasoned that, if the state-paid interpreter on sectarian school premisesin Zobrest did not create a symbolic unionbetween government and religion, then ‘‘cer-tainly having religiously neutral material andequipment in the same classroom does notcreate a symbolic union either.’’ Id. at 1468,citing Zobrest, 509 U.S. at 13, 113 S.Ct. 2462.

Although it had already established (to itsown satisfaction) that Meek and Wolmanwere no longer good law, the panel went onto distinguish the aid programs in thosecases from Chapter 2:

[T]he statutes struck down in Meek andWolman are fundamentally different fromthe Chapter 2 statute at issue here. The

18. The panel also found that, given the de minim-is aid provided per student ($6.65 per student in1988–89), ‘‘it is no surprise that Chapter 2 funds

are supplementary and cannot supplant the basiceducational services of the religious schools.’’Id.


statute in Meek was not neutral because itprovided close to $12 million in aid thatwas targeted directly at private schools, ofwhich more than 75% were church-related.Similarly, in Wolman, the statute was notneutral because it provided $88.8 million inaid that was targeted directly at privateschools, of which 96% were church-relatedand 92% were Catholic. Here, seventy-four percent of Chapter 2 benefits went topublic schools. Of the remaining twenty-six percent TTT a substantial portion wasallocated to nonreligious private schools.Indeed, over thirty percent of the privateschools under the Chapter 2 program arenonreligious. Thus, unlike the statutes inMeek and Wolman, Chapter 2 is a neutral,generally applicable statute that providesbenefits to all schools, of which the over-whelming beneficiaries are nonparochialschools.

Walker, 46 F.3d at 1468.19

The Walker panel decision was not withoutits detractors, however. While Judge Fer-nandez agreed with the panel majority thatthe distinction drawn in Meek between text-books and educational materials was ‘‘untena-ble,’’ he nevertheless believed that Meek wasstill binding law. See Walker, 46 F.3d at1470 (Fernandez, J., concurring and dissent-ing)(‘‘[The Supreme] Court has given us thebook-for-kids versus materials-for-schools di-chotomy. Only it can take it away.’’). Addi-tionally, the Ninth Circuit’s refusal to rehearthe case en banc provoked a vituperativedissent by Judge Reinhardt (joined byJudges Pregerson and Hawkins). Judge Re-inhardt excoriated the panel majority forshirking its ‘‘clear duty to invalidate the SanFrancisco Unified School District’s provisionof videos, overhead projectors, televisions,record players, and similar equipment to pa-rochial schools.’’ Walker v. San FranciscoUnified School District, 62 F.3d 300, 301(1995)(Reinhardt, J., dissenting from denialof en banc rehearing). Judge Reinhardt re-peatedly emphasized that Meek and Wolmanwere still binding precedent and that ‘‘[t]he

distinction between textbooks and other edu-cational materials is so clear and well-estab-lished as to defy legitimate judicial evasion.’’Id.

C.

When we carefully review the SupremeCourt’s pronouncements in Allen, Meek, Wol-man, and Regan, it is tempting to complainthat the high Court has instructed us confus-ingly. As merely one example, the Court inAllen registered its disagreement with theproposition ‘‘that the processes of secular andreligious training are so intertwined that sec-ular textbooks furnished to students by thepublic are in fact instrumental in the teach-ing of religion.’’ Allen, 392 U.S. at 248, 88S.Ct. 1923. Only seven years later, however,the Court was heard to say in Meek that‘‘[t]he secular education [that parochial]schools provide goes hand in hand with thereligious mission that is the only reason forthe schools’ existence. Within the institu-tion, the two are inextricably intertwined.’’Meek, 421 U.S. at 366, 95 S.Ct. 1753, quotingLemon, 403 U.S. at 657, 91 S.Ct. 2105 (opin-ion of Brennan, J.)(emphasis added). Lestwe fall into despair, however, we will viewthe Court’s cases dealing with state aid toreligious schools more in terms of what theydid rather than what they said.

When we take that approach, the solutionbecomes compellingly clear and simple.Meek and Wolman have squarely held thatwhat the government is attempting to accom-plish through Chapter 2, it may not do. Nocase has struck down Meek or Wolman. Wecould take out our judicial divining rod andtry to predict, on the basis of what has beensaid since Meek and Wolman, what the pres-ent Court would do if called upon to weighthe constitutionality of Chapter 2. But such acourse would, we think, take us beyond ourrole as a Circuit Court of Appeals, bound tofollow the dictates of the Supreme Court.And if our duty were not already clear

19. The panel also found that Chapter 2 did notviolate the ‘‘entanglement’’ prong of Lemon, giv-en the minimal intrusion onto the parochialschools premises by State monitors, and alsogiven the ‘‘self-policing’’ nature of the neutral

instructional materials and equipment. Walker,46 F.3d at 1469, citing, inter alia, Meek, 421 U.S.at 365, 95 S.Ct. 1753, and Zobrest, 509 U.S. at13–14.


enough, the Court has recently reminded usof it in Agostini:

We do not acknowledge, and we do nothold, that other courts should conclude ourmore recent cases have, by implication,overruled an earlier precedent. We reaf-firm that ‘‘if a precedent of this Court hasdirect application in a case, yet appears torest on reasons rejected in some other lineof decisions, the Court of Appeals shouldfollow the case which directly controls,leaving to this Court the prerogative ofoverruling its own decisions.’’

Agostini, at ––––, 117 S.Ct. at 2017, quotingRodriguez de Quijas v. Shearson/AmericanExpress, 490 U.S. 477, 484, 109 S.Ct. 1917,104 L.Ed.2d 526 (1989)(emphasis added).

Meek invalidated a Pennsylvania statutethat authorized the Secretary of Education tolend to parochial schools ‘‘instructional mate-rials’’ which included ‘‘periodicals, photo-graphs, maps, charts, sound recordings,films, TTT projection equipment, recordingequipment, and laboratory equipment.’’Meek, 421 U.S. at 354–55, 366, 95 S.Ct. 1753;see also Meek, 421 U.S. at 354 n. 4, 95 S.Ct.1753 (complete statutory definition of ‘‘in-structional materials.’’). Meek is directly onpoint and has not been overruled by anySupreme Court case. We thus ‘‘follow thecase that directly controls.’’ See Agostini, at––––, 117 S.Ct. at 2017.

In Allen, Meek, Wolman, and Regan, theCourt drew a series of boundary lines be-tween constitutional and unconstitutionalstate aid to parochial schools, based on thecharacter of the aid itself. Allen approvedtextbook loans to parochial schools becausethe evidence did not indicate that ‘‘all text-books TTT are used by the parochial schoolsto teach religion.’’ Allen, 392 U.S. at 248, 88S.Ct. 1923. While recognizing that books, ifthey were religious books, could have theeffect of indoctrination, the Allen Court lik-ened the purely secular books at issue thereto the bus transportation subsidized in Ever-son v. Board of Education, 330 U.S. 1, 17, 67S.Ct. 504, 91 L.Ed. 711 (1947): neither busrides nor purely secular textbooks had ‘‘in-herent religious significance.’’ Allen, 392U.S. at 244, 88 S.Ct. 1923. While JusticesBlack and Douglas dissented in Allen, they

did so based on a different conception of therole of textbooks in parochial schools. SeeAllen, 392 U.S. at 252, 88 S.Ct. 1923 (Black,J., dissenting)(‘‘Books are the most essentialtool of education since they contain the re-sources of knowledge which the educationalprocess is designed to exploit.’’), and Allen,392 U.S. at 257, 88 S.Ct. 1923(Douglas, J.,dissenting)(‘‘The textbook goes to the veryheart of the education in a parochialschool.’’). Both the majority and the dissent-ing opinions, however, consistently focusedon the character of the aid given to parochialschools.

Meek and Wolman, while both reaffirmingAllen, nevertheless invalidated state pro-grams lending instructional materials otherthan textbooks to parochial schools andschoolchildren. Meek merely intimated thatthe character of the aid was the determina-tive feature in its holding. See Meek, 421U.S. at 364, 95 S.Ct. 1753 (‘‘[A] State mayinclude church-related schools in programsproviding bus transportation, school lunches,and public health facilities— secular andnonideological services unrelated to the pri-mary, religion-oriented educational functionof the sectarian school.’’)(emphasis added).But Wolman clarified that, in the Court’sview, the character of the aid itself deter-mined whether the aid was constitutional.Wolman did so by upholding several differ-ent types of aid (textbooks, administration ofstate-required standardized tests,speech/hearing diagnostic services, off-prem-ises therapeutic/guidance/remedial services),while at the same time striking down, basedon Meek, the loan of instructional materialsto parochial schoolchildren. See Wolman,433 U.S. at 236–38, 238–41, 241–244, 244–248,248–252, 97 S.Ct. 2593. The Wolman Courtdistinguished among these various types ofaid by reference to the particular attributesof the aid itself. See, e.g., Wolman, 433 U.S.at 244, 97 S.Ct. 2593(‘‘[D]iagnostic services,unlike teaching or counseling, have little orno educational content and are not closelyassociated with the educational mission of thenonpublic school.’’). Wolman candidly recog-nized the ‘‘tension’’ existing between theholdings in Meek and Allen and sought toresolve that tension by emphasizing the


unique character of the aid approved in Al-len, i.e., that ‘‘the educational content of text-books is something that can be ascertained inadvance and cannot be diverted to sectarianuses.’’ See Wolman, 433 U.S. at 251 n. 18, 97S.Ct. 2593; see also Committee for PublicEducation v. Nyquist, 413 U.S. 756, 781–82,93 S.Ct. 2955, 37 L.Ed.2d 948 (1973).

Contrary to the Walker panel’s view, Re-gan did nothing to ‘‘instruct us that thedifference between textbooks and other in-structional equipment and materials TTT isnot of constitutional significance.’’ Walker,46 F.3d at 1466. Regan did exactly theopposite. In seeking to harmonize the hold-ings of Meek and Wolman, the Regan Courtmerely observed that Meek did not forbid alltypes of aid to sectarian schools. See Regan,444 U.S. at 661, 100 S.Ct. 840. Indeed, as theRegan Court realized, if Meek stood for sucha proposition, then Wolman ’s approval of,for example, the testing and grading serviceswould have flown in the face of precedent.See id. Regan clarified that Meek only inval-idates a particular kind of aid to parochialschools—the loan of instructional materials.See id. at 662, 100 S.Ct. 840.

The Walker panel made a flawed attemptto avoid the holdings of Meek and Wolmanby ‘‘distinguishing’’ the statutes at issue inthose cases from the Chapter 2 program.The panel opined that the Meek and Wolmanstatutes were ‘‘fundamentally different’’ fromChapter 2 because they were not ‘‘neutral.’’Walker, 46 F.3d at 1468. By this, the panelmeant that the challenged programs in Meekand Wolman directly targeted massive aid toprivate schools, the vast majority of whichwere religiously-affiliated. See id. By con-trast, the panel distinguished Chapter 2 as a‘‘neutral, generally applicable statute thatprovides benefits to all schools, of which theoverwhelming beneficiaries are nonparochialschools.’’ Id. But Walker misunderstood theaid programs struck down in Meek and Wol-man.

Those cases dealt with general aid pro-grams designed to provide equitable benefitsto both public and nonpublic schoolchildren.See Meek, 421 U.S. at 351–52, 95 S.Ct. 1753(‘‘With the stated purpose of assuring thatevery schoolchild in the Commonwealth will

equitably share in the benefits of auxiliaryservices, textbooks, and instructional materi-al provided free of charge to children attend-ing public schools, the Pennsylvania GeneralAssembly in 1972 added Acts 194 and 195 tothe Pennsylvania Public School Code of1949.’’) (citations omitted)(emphasis added),and Wolman, 433 U.S. at 234, 97 S.Ct. 2593(‘‘All disbursements made with respect tononpublic schools have their equivalents indisbursements for public schools, and theamount expended per pupil in nonpublicschools may not exceed the amount expendedper pupil in public schools.’’)(emphasis add-ed). The Meek and Wolman Courts, howev-er, dedicated their discussion to those partsof the programs that channeled aid to non-public schools, because it was the characterof the aid provided to those schools, and notthe relative percentages of aid distributedbetween public and nonpublic schools, thatwas determinative. See Walker, 62 F.3d at302 n. 1 (Reinhardt, J., dissenting from deni-al of en banc rehearing). Thus, the percent-ages discussed in Meek and Wolman werecompletely irrelevant to the constitutionalityof the programs at issue there, as was thefact that the general aid programs mighthave been implemented by two separate stat-utes. The Court observed in Meek, in adifferent context, that ‘‘it is of no constitu-tional significance whether the general pro-gram is codified in one statute or two.’’Meek, 421 U.S. at 360 n. 8, 95 S.Ct. 1753.

Since Walker was decided before the Su-preme Court handed down Agostini, weshould add that Agostini also does not over-rule Meek or Wolman; nor does Agostinidismantle the distinction between textbooksand other educational materials. In fact,Agostini does not even address that issue.Agostini does, it is true, discard a premise onwhich Meek relied—i.e., that ‘‘[s]ubstantialaid to the educational function of [sectarian]schools TTT necessarily results in aid to thesectarian school enterprise as a whole.’’Meek, 421 U.S. at 366, 95 S.Ct. 1753 (empha-sis added). But Agostini does not replacethat assumption with the opposite assump-tion; instead, Agostini only goes so far as to‘‘depart[ ] from the rule TTT that all govern-ment aid that directly aids the educational


function of religious schools is invalid.’’Agostini, at ––––, 117 S.Ct. at 2011 (empha-sis added). Agostini holds only that the aidat issue there (i.e., the on-premises provisionof special education services by state-paidteachers) was not the kind of governmentalaid that impermissibly advanced religion.Id. at ––––, 117 S.Ct. at 2016. Agostini saysnothing about the loan of instructional mate-rials to parochial schools and we therefore donot read it as overruling Meek or Wolman.Agostini only instructs us that Meek ’s pre-sumption regarding instructional materialsshould not be applied to state-paid teacherson parochial schools premises. See Agostini,at ––––, 117 S.Ct. at 2012; see also Ball, 473U.S. at 395–96, 105 S.Ct. 3216 (applyingMeek and Wolman to state-paid teachers).

D.

[15] Applying Meek and Wolman, wehold that Chapter 2, 20 U.S.C. §§ 7301–7373,and its Louisiana counterpart, LA.REV.STAT.

ANN. §§ 17:351–52 (West 1982 & West Supp.1998), are unconstitutional as applied in Jef-ferson Parish, to the extent that either pro-gram permits the loaning of educational orinstructional equipment to sectarian schools.By prohibiting the loaning of such materials,our decree encompasses such items as film-strip projectors, overhead projectors, televi-sion sets, motion picture projectors, videocassette recorders, video camcorders, com-puters, printers, phonographs, slide projec-tors, etc. See, e.g., Meek, 421 U.S. at 354 n.4, 95 S.Ct. 1753. Our decree also necessarilyprohibits the furnishing of library books bythe State, even from prescreened lists. Wecan see no way to distinguish library booksfrom the ‘‘periodicals TTT maps, charts, soundrecordings, films, or any other[ ] printed andpublished materials of a similar nature’’ pro-hibited by Meek. See id. at 355, 95 S.Ct. 1753(internal quotes omitted). The SupremeCourt has only allowed the lending of freetextbooks to parochial schools; the term‘‘textbook’’ has generally been defined by thecase law as ‘‘a book which a pupil is requiredto use as a text for a semester or more in aparticular class he legally attends.’’ Allen,392 U.S. at 239 n. 1, 88 S.Ct. 1923. We do notthink library books can be subsumed withinthat definition.

We therefore REVERSE Judge Livaudais’grant of summary judgment in favor of De-fendants and RENDER judgment declaringChapter 2, 20 U.S.C. §§ 7301–7373, and itsLouisiana counterpart, LA.REV.STAT.ANN.§§ 17:351–52, unconstitutional as applied inJefferson Parish.

IV.

[16] Plaintiffs also challenge an agree-ment between the JPSB and the JeffersonNon–Public School Transportation Corpora-tion (the ‘‘Corporation’’) entered into pursu-ant to LA.REV.STAT.ANN. § 17:158 (West 1982& West Supp.1998), under which the JPSBmakes payments to the Corporation, which inturn arranges transportation for students tosix parochial schools in Jefferson Parish.Plaintiffs argue that the agreement imper-missibly delegates civil authority to a group(the Corporation) dedicated to serving reli-gious interests, in violation of the Establish-ment Clause, and furthermore that theagreement violates the neutrality require-ments of the Establishment Clause by privi-leging six sectarian schools over other publicand nonpublic schools. The district court,after a bench trial, disagreed, finding thearrangement constitutionally indistinguish-able from the arrangement upheld in Ever-son v. Board of Education of Ewing, 330U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947).See generally, Helms, 856 F.Supp. at 1133–55.

A.

Louisiana law requires that ‘‘each parishand city school board shall provide freetransportation for any student attending aschool of suitable grade approved by theState Board of Elementary and SecondaryEducation within the jurisdictional bound-aries of the parish or school board if thestudent resides more than one milefrom such school.’’ LA.REV.STAT.ANN.§ 17:158(A)(1) (West Supp.1998). A subsec-tion of the same statute provides that ‘‘noth-ing TTT shall prohibit a parish or city schoolfrom entering into contracts or mutual agree-ments for providing school bus transporta-tion.’’ LA.REV.STAT.ANN. § 17:158(A)(4)


(West Supp.1998). The JPPSS provides freetransportation to eligible public and nonpub-lic school students. Since 1988, nonpublicand public student bus transportation hasbeen funded through separate appropriationsof state funds. Bus drivers are paid througha combination of state funds and local supple-ments.

During the 1988–89 school year, fundingreductions for Jefferson Parish nonpublicschool transportation caused the JPSB to cutlocal supplements for nonpublic schools. Tomake up for the shortfall, the Archdiocese ofNew Orleans agreed to contribute funds andthereby ensure the restoration of certainCatholic, nonpublic schools’ transportationservices to the prior year’s level. Parents ofschoolchildren at those nonpublic schoolswere thereafter required to pay a supple-ment to offset transportation costs. Never-theless, the JPSB discontinued some of thenonpublic school transportation in May 1988,because JPSB had not received all of thenecessary funds from those nonpublicschools.

In 1989, the State increased nonpublicschool transportation funding to JeffersonParish by $278,788, for a total of $1,490,637.The Archdiocese of New Orleans and theState decided that part of these additionalfunds would be used to provide privatelycontracted bus service for those studentswho had been eliminated from the transpor-tation plan. Consequently, the JeffersonNon–Public School Transportation Corpora-tion was formed on September 28, 1989. Thestated purposes of this non-profit Corpora-tion included

[the provision of] transportation for thechildren of parents residing in the Parishof Jefferson who have enrolled their chil-dren in parochial schools within the Parishof Jefferson other than their own churchparish because of the fact that the parishin which said parents reside does not oper-ate a parochial schoolTTTT

Helms, 856 F.Supp. at 1149. The Corpora-tion had members from six nonpublic schools:St. Christopher, St. Catherine of Siena, St.Louis King of France, St. Agnes, St. AngelaMerici, and St. Matthew the Apostle.

On February 6, 1990, JPSB paid the Cor-poration $100,195 ‘‘in lieu of transportationservices previously provided by the [JPPSS]for some of the students attending [the sixCatholic schools].’’ Id. The Corporation paidthe funds to ‘‘privately contracted bus driv-ers’’ who provided bus services to 368 stu-dents attending the six schools. Id. at 1149–50. The district court specifically found that‘‘the funds paid to the [Corporation] wereclearly spent for transportation of nonpublicschool students.’’ Id. at 1150.

B.

We agree with the district court that theagreement between the JPSB and the Corpo-ration to provide funds for the transportationof nonpublic school children does not violatethe Establishment Clause. See Helms, 856F.Supp. at 1150–55. The allocation of fundsto the Corporation is simply one part of abroader, general program by which the Stateand Jefferson Parish provide a secular, non-instructional service to sectarian and nonsec-tarian schoolchildren alike.

The Supreme Court’s decisions in Eversonand Wolman furnish the guideposts for ourdiscussion, although, as we make clear below,the Jefferson Parish program we confronthere falls somewhat between the facts ofthose cases. In Everson, the Court approveda New Jersey program by which the Statereimbursed parents for the cost of sendingtheir children to and from school, whetherpublic or parochial. Everson, 330 U.S. at 17,67 S.Ct. 504. The Court analogized the re-imbursement to situations ‘‘where the staterequires a local transit company to providereduced fares to school children includingthose attending parochial schools,’’ or where‘‘state-paid policemen TTT protect childrengoing to and from church schools.’’ Id. Suchservices, in the Court’s view, were ‘‘separateand TTT indisputably marked off from the[schools’] religious function.’’ Id. at 18, 67S.Ct. 504. Wolman restated the holding inEverson in the following way:

The critical factors TTT are that the schoolhas no control over the expenditure of thefunds and the effect of the expenditure isunrelated to the content of the educationprovided. Thus, the bus fare program in


Everson passed constitutional muster be-cause the school did not determine howoften the pupil traveled between home andschool—every child must make one roundtrip every day—and because the travel wasunrelated to any aspect of the curriculum.

Wolman, 433 U.S. at 253, 97 S.Ct. 2593.Wolman, by contrast, invalidated an Ohio

statute which authorized the State to expendfunds to provide ‘‘field trip transportation’’ tononpublic school students on an equal basiswith public school students. The Courtpointed out that in Wolman, unlike Everson,the nonpublic school controlled ‘‘the timing ofthe trips and, within a certain range, theirfrequency and destinations.’’ Id. Additional-ly, the Court believed that ‘‘field trips,’’ giventhe inevitable discussion accompanying themand the parochial schoolteacher’s input andguidance, ‘‘are an integral part of the edu-cational experience.’’ Id. at 253–54, 97 S.Ct.2593.

The Jefferson Parish program falls some-where in the gray area between Everson andWolman. Certainly the content of the aidprovided through the JPSB–Corporationagreement is for our purposes identical tothe aid provided in Everson: getting a childto and from school once a day. There is noevidence, as the District Court found, thatthe funds were used for anything other thansuch transportation. See Helms, 856F.Supp. at 1150. The means by which theaid was administered, however, bear a vagueresemblance to Wolman. The funds arepaid, not as reimbursements to parents, butinstead as a subsidy for transportation coststo a private, non-profit corporation, whose‘‘members’’ were parents of children attend-ing the six schools at issue.20 This system isat least superficially similar to the directpayments, over which the nonpublic schoolshad virtually unfettered discretion, con-demned in Wolman. See Wolman, 433 U.S.at 253–54, 97 S.Ct. 2593.

Although again we must perform a balanc-ing act between permissible and impermissi-ble aid to sectarian institutions, we find thatthe arrangement at issue here bears more of

a resemblance to the program upheld in Ev-erson than to the one struck down in Wol-man. The primary consideration guiding usis the character of the aid provided. Here,as in Everson, the payments are earmarkedfor a wholly secular function lacking in anyeducational content whatsoever—the trans-portation of schoolchildren to and fromschool. There is no danger, as there was inWolman, that parochial teachers will subvertthe state-funded process to further their ownsectarian aims; indeed, the religious teachershave no role in this kind of transportation,and, as the District Court assured us,‘‘[t]here has been no evidence presented thatJPPSS bus drivers might impart religiousbeliefs to their bus passengers.’’ Helms, 856F.Supp. at 1151.

Although the means through which the aidgets to religious institutions—the Corpora-tion—did give us pause initially, in the endwe believe that the Corporation serves mere-ly an administrative function in the aid pro-cess. The Corporation acts as a conduitthrough which the funds pass and is adminis-tered by the parents of schoolchildren. TheSupreme Court has already approved directreimbursements to parents in Everson; itwould exalt form over substance to draw aconstitutional distinction where the funds arepaid, not to the parents themselves, but to aprivate corporation with the same parents asmembers. Furthermore, we have seen noevidence indicating that the Corporation ex-ercises unfettered discretion over the funds.Instead, as both district judges who consid-ered the issue concluded, the Corporation isdedicated exclusively to facilitating seculartransportation services for its members’ stu-dents and has no religious objectives at all.Finally, no evidence indicates that the fundswere used for anything but the permissiblepurpose of providing transportation servicesto nonpublic schoolchildren. See Helms, 856F.Supp. at 1150.

We also reject Plaintiffs’ argument thatthe transportation payments violate the neu-trality requirements of the EstablishmentClause because the Corporation is dedicated

20. In rejecting the Plaintiffs’ Motion for Recon-sideration of Judge Heebe’s ruling on the trans-portation issue, Judge Livaudais found that the

Corporation was ‘‘non-religious and was set upexclusively to hire bus drivers to drive thesechildren to and from schoolTTTT’’

377U.S. v. RODRIGUEZ–RIVASCite as 151 F.3d 377 (5th Cir. 1998)

to serving only six nonpublic schools. Thiscontention overlooks the fact that the Corpo-ration focused on the six schools at issuebecause they had been excluded from localfunding due to cuts in transportation fundsfrom the state. Thus, the Corporation exists,not to privilege these six parochial schools,but instead to bring them to a level of ser-vices equal to other schools. Finally, theeligibility requirements for transportation aidare generally applicable to all students, bothpublic and nonpublic. Any differencesamong the level of services provided fromschool to school (e.g., frequency and patternof busing routes, local supplement levels,etc.) arise from administrative concerns thathave nothing to do with religion. Indeed, asthe district court, found, although the Statestrives to make transportation services avail-able equitably to both public and nonpublicstudents, ‘‘it appears TTT that greater bene-fits are provided to the public school stu-dents.’’ Helms, 856 F.Supp. at 1152. Wecannot understand how the Plaintiffs thencomplain that the transportation paymentscheme operates to the unfair benefit of thesix Catholic schools at issue here.

Based on Everson and Wolman, we AF-FIRM the District Court’s determinationthat the transportation payments to the Cor-poration, by virtue of LA.REV.STAT.ANN.§ 17:158, are constitutional.

V.

In sum, then,(1) we REVERSE the districtcourt’s decision in favor of Plaintiffs andRENDER judgment in favor of Defendantsdeclaring the Louisiana special educationprogram, LA.REV.STAT.ANN. § 17:1941–1956,constitutional as applied in Jefferson Parish;(2) we REVERSE the district court’s grantof summary judgment in favor of Defendantsand RENDER judgment in favor of Plain-tiffs declaring that the Federal instructionalmaterials program, 20 U.S.C. §§ 7301–7373,and its Louisiana counterpart, LA.REV.STAT.

ANN. §§ 17:351–52 are unconstitutional asapplied in Jefferson Parish; and, (3) we AF-FIRM the district court’s decision in favor ofDefendants that the transportation paymentsto the Jefferson Non–Public School Trans-

portation Corporation, by virtue of LA.REV.

STAT.ANN. § 17:158, are constitutional.

AFFIRMED in part; REVERSED in partand JUDGMENT RENDERED.

,

UNITED STATES of America,Plaintiff–Appellee,

v.

Jesus RODRIGUEZ–RIVAS,Defendant–Appellant.

No. 97–50650.

United States Court of Appeals,Fifth Circuit.

Aug. 17, 1998.

Defendant was convicted in the UnitedStates District Court for the Western Dis-trict of Texas, W. Royal Furgeson, Jr., J., ofconspiracy to possess with intent to distrib-ute marijuana and possession with intent todistribute marijuana, and he appealed. TheCourt of Appeals, Duhe, Circuit Judge, heldthat Border Patrol Agent lacked reasonablesuspicion to support stop of vehicle.

Reversed and remanded.

Edith H. Jones, Circuit Judge, filed dis-senting opinion.

1. Criminal Law O1139, 1158(1)

Court of Appeals reviews district court’sdeterminations of law in denying motion tosuppress de novo, while factual findings arereviewed for clear error.

2. Criminal Law O1144.12

Court of Appeals views evidence pre-sented at suppression hearing in light mostfavorable to prevailing party.

helms v. picard 347 · tionality under the first amendment of three louisiana and one federal...

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