Americans United for Separation of Church and State v. School Dist. of City of Grand Rapids

• Decision Date: 27 February 1984
• Docket Number: Nos. 82-1600,s. 82-1600
• Citation: 718 F.2d 1389
• Parties: 14 Ed. Law Rep. 40 AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, et al., Plaintiffs- Appellees, v. The SCHOOL DISTRICT OF the CITY OF GRAND RAPIDS (82-1600), Defendant-Appellant, Irma Garcia-Aguilar, et al., (82-1601), Intervenor-Defendants-Appellants, Phillip Runkel, et al., (82-1602), Defendants-Appellants. to 82-1602.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1389

718 F.2d 1389

14 Ed. Law Rep. 40

AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, et al., Plaintiffs- Appellees, v. The SCHOOL DISTRICT OF the CITY OF GRAND RAPIDS (82-1600),

Defendant-Appellant,

Irma Garcia-Aguilar, et al., (82-1601),

Intervenor-Defendants-Appellants,

Phillip Runkel, et al., (82-1602), Defendants-Appellants.

Nos. 82-1600 to 82-1602.

United States Court of Appeals,

Sixth Circuit.

Argued Jan. 26, 1983.

Decided Sept. 23, 1983.

Certiorari Granted Feb. 27, 1984.

See 104 S.Ct. 1412.

Stuart D. Hubbell (argued), Traverse City, Mich., for defendant-appellant in No. 82-1601, & plaintiffs-appellees in Nos. 82-1600 and 82-1602.

Albert R. Dilley (argued), Grand Rapids, Mich., for plaintiffs-appellees in all cases.

William S. Farr, John R. Oostema, Grand Rapids, Mich., for plaintiffs-appellees in Nos. 82-1601 and 82-1602, for defendant-appellant in No. 82-1600.

Gerald F. Young, Asst. Atty. Gen., Lansing, Mich., for plaintiffs-appellees in Nos. 82-1600 and 82-1601, for defendant-appellant in No. 82-1602.

Frank J. Kelley, Lansing, Mich., for defendant-appellant in No. 82-1602.

Before EDWARDS, Chief Judge, and LIVELY and KRUPANSKY, Circuit Judges.

GEORGE CLIFTON EDWARDS, Jr., Chief Judge.

INTRODUCTION

The First Amendment to the Constitution of the United States provides in its first clause: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, ..." The United States Supreme Court has established that this amendment applies with full force to the various states of the union. Committee for Public Education and Religious Liberty v. Regan, 444 U.S. 646, 100 S.Ct. 840, 63 L.Ed.2d 94 (1980); Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947); Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940).

At the outset, this court recognizes that the State of Michigan, through its legislature and courts, has approved the expenditure of public funds for the purposes described in the statement of facts below. See In Re Proposal C (Traverse City School District v. Attorney General), 384 Mich. 390, 185 N.W.2d 9 (1971); Citizens to Advance Public Education v. State Superintendent of Public Instruction, 65 Mich.App. 168, 237 N.W.2d 232 (1975), leave to appeal denied, 397 Mich. 854 (1976); 1976 MICH.PUB.ACT 451, Sec. 331; 1979 MICH.PUB.ACT 94, Sec. 1; MICH.COMP.LAWS ANN. Sec. 380.331 (1976 & Supp.1983); MICH.COMP.LAWS ANN. Sec. 388.1601 (1979 & Supp.1983); MICH.STAT.ANN. Sec. 15.1919(901) (1976 & Supp.1983); MICH.STAT.ANN. Sec. 315.4331 (1979). On complaint, however, it is the responsibility of the federal courts (ultimately, of course, of the Supreme Court of the United States) to determine whether specific tax supported benefits provided by state law violate the establishment clause of the Constitution of the United States.

THE NATURE OF THIS CASE

This is a taxpayers' suit filed by various citizens of the City of Grand Rapids contending that a Shared Time and Community Education program operated by the School District of the City of Grand Rapids in school buildings owned and operated by various religious denominations in Grand Rapids is an unconstitutional "establishment" of religion and its method of operation requires an unconstitutional entanglement of public and religious affairs. The case was heard before District Judge Benjamin Gibson in Grand Rapids, Michigan, in an eight-day trial. After Judge Gibson recused himself, the case was transferred to District Judge Richard Enslen who, by agreement of the parties, decided the case on the basis of transcript testimony and other written documentary evidence which had been submitted to Judge Gibson, 546 F.Supp. 1071.

Judge Enslen dismissed plaintiff Americans United for Separation of Church and State and returned judgment in favor of the individual plaintiffs. A stay application was then filed by appellant before the District Judge. He denied the request. On appeal, this Circuit by majority vote affirmed the denial. A stay application was then filed with Circuit Justice Sandra Day O'Connor and likewise was denied.

On this appeal the following parts of the program are at issue before this court: 1) Shared Time classes at the elementary level, 2) Community Education classes at the elementary level, and 3) one remedial math Shared Time class at the secondary level. All classes concerned in this case were held in classrooms in parochial schools.

Judge Enslen held that the individual plaintiffs have standing to attack these programs

                under the establishment clause.  We agree with his reasoning and result on this issue.   See Flast v. Cohen, 392 U.S. 83, 103-06, 88 S.Ct. 1942, 1954-1955, 20 L.Ed.2d 947 (1968);  McCollum v. Bd. of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649 (1948);  Everson v. Bd. of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947).  He also concluded that public tax support for these programs in the parochial schools, in spite of measures taken to eliminate within the specific classrooms both religious teaching and religious symbolism, had an impermissible effect of advancing the various religions involved and resulted in excessive entanglement of government and religion
                

STATEMENT OF FACTS

After full briefing and appellate hearing, we have now reviewed the lengthy record and the briefs filed by the respective parties and find that Judge Enslen's statement of facts should be adopted by this court. It follows:

Although the parties, as expected, propose differing interpretations of the facts and urge opposing views of the legal consequences which flow therefrom, the Court, after careful consideration of the entire record, believes that the salient facts underlying this litigation are largely undisputed. The basic facts are set forth below; more detailed facts will be elaborated within that section of the Opinion to which they pertain.

At the outset it should be noted that, throughout this proceeding, the term "shared time" has been used to describe both the Shared Time and the Community Education programs. Individually and collectively both programs have enjoyed a steady growth since their inception. For the 1978-79 school year, there were 9,494 nonpublic school students enrolled in the combined programs; the payment of state school aid funds attributable to those students totalled $1,397,577.20. By the 1981-82 school year, the programs had been extended across county lines, the number of participating nonpublic school students exceeded 11,000, and state aid approached $6,000,000. Besides being offered through the Defendant School District, both programs contain additional common characteristics which will be discussed immediately below. Thereafter, because Shared Time and Community Education are individual and distinct educational programs, they will be discussed separately.

In both the Shared Time and Community Education programs, Defendant School District utilizes a standard form lease to gain access to nonpublic school classrooms and other facilities. The lease specifies a rental charge of $6 per class per week at the elementary schools, and $10 per class per week at the secondary schools. In none of the leases is there any mention of the particular room, space or facility which the instrument governs, and they do not, by their terms, restrict public school employees or students from occupying or using any facility within the nonpublic schools. Indeed, teachers' rooms, libraries, lavatories and similar facilities used in connection with the let premises are generally made available to the School District.

No crucifixes, religious symbols or artifacts may be displayed in leased facilities. Before any nonpublic school facility may be utilized by either of the public school programs, it is necessary to "desanctify" the facility to ensure that no such symbols are exhibited. In many instances, religious symbols or artifacts, or both, exist in adjoining corridors, surrounding rooms, or other facilities used in connection with the leasehold.

The School District requires its instructors to post signs within the class area designating it as a public school classroom. At least one instructor testified that she carried the "public school" sign with her as she moved throughout the nonpublic schools. There are no signs posted outside of the nonpublic schools indicating that public school courses are being offered therein, or that the facilities serve as a public school annex.

Almost without exception, those students attending Shared Time and Community Education courses in facilities leased from a Shared Time and Community Education instruction involves 470 full and part-time teachers. Every Shared Time instructor is employed in accordance with the ordinary hiring procedures adopted by the School District for the City of Grand Rapids. A significant portion of the Shared Time instructors previously taught in nonpublic schools, and many of those had been assigned to the same nonpublic school where they were previously employed. The majority of Community Education offerings on facilities leased from a nonpublic school are taught by instructors employed full time by the very same nonpublic school.

nonpublic school are the very same students who attend that particular nonpublic school during the regular school day. Thus, there is a virtual identity between students receiving Shared Time or Community Education instruction at any given nonpublic school and the students regularly attending that nonpublic school.

Shared Time is a program wherein the school district offers substantive courses from its general curriculum to nonpublic school students during regular school hours. As noted in Traverse City School District v. Attorney General, supra, [384 Mich.] at 407, n. 2 , such shared time classes have been offered in various Michigan school districts for more than 60 years. In their original form, shared time courses provided...