AMERICANS U. FOR SEP. OF CHURCH & STATE v. Board of Ed.

• Decision Date: 14 January 1974
• Docket Number: No. 1561.,1561.
• Citation: 369 F. Supp. 1059
• Parties: AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE et al., Plaintiffs, v. The BOARD OF EDUCATION OF the BEECHWOOD INDEPENDENT SCHOOL DISTRICT et al., Defendants.
• Court: U.S. District Court — Eastern District of Kentucky

369 F. Supp. 1059

AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE et al., Plaintiffs, v. The BOARD OF EDUCATION OF the BEECHWOOD INDEPENDENT SCHOOL DISTRICT et al., Defendants.

No. 1561.

United States District Court, E. D. Kentucky, Covington Division.

January 14, 1974.

James F. Ogden, Covington, Ky., for plaintiffs.

Gordon H. Hood, Cincinnati, Ohio, Charles H. Deters, Covington, Ky., for defendants.

OPINION

SWINFORD, District Judge.

This action assails as unconstitutional two contracts between the Board of Education of the Beechwood Independent School District (hereinafter: Beechwood), a publicly funded school, and the Blessed Sacrament School (hereinafter: Blessed Sacrament), an institution controlled by the Catholic Church. The original complaint sought to enjoin the enforcement of a contract effective during the 1970-1971 school year. Although that agreement terminated in 1971, a new contract executed on April 29, 1971, contained virtually identical provisions; pursuant to agreed order an amended complaint was filed alleging state financial aid to a sectarian cause in violation of the First Amendment "Establishment" Clause. The plaintiffs seek a declaratory judgment of the contracts' unconstitutionality and damages representing the amounts paid in rents and teachers' salaries under the program. Trial without jury was held on July 7, 1972. The parties were afforded an opportunity for the submission of arguments and the record is now before the court for decision.

An initial issue of mootness is interposed since the second contract between the parties lapsed in 1972 and renewal was rejected by the Beechwood School Board. The plaintiffs argue this action is not moot in view of the defendants' failure to meet the "heavy burden" of demonstrating that the challenged practice will not recur: although urging the termination of the arrangements, the schools have nowhere represented that similar programs will be avoided in the future, United States v. W. T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303 (1953); indeed, the sole reason for the nonrenewal in 1972 was the refusal of the Kentucky Attorney General to grant approval. It is also noted that, despite the termination of this particular agreement, similar contracts long in force throughout the Commonwealth demand an adjudication on the merits. Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963).

Federal courts do not possess power to render advisory opinions on uncontested or academic matters. Caldwell v. Craighead, 6th Cir., 432 F.2d 213 (1970), cert. denied 402 U.S. 953, 91 S. Ct. 1617, 29 L.Ed.2d 123 (1971). However, the plaintiffs are correct in the contention that this controversy is not moot. As noted in Walling v. Helmerich & Payne, Inc., 323 U.S. 37, 65 S.Ct. 11, 89 L.Ed. 29 (1944), a defense based on mootness is not viable where the parties would be free to resume challenged conduct in the absence of a substantive determination. Further, the issues raised in this action satisfy the four "tests" outlined in Super Tire Engineering Co. v. McCorkle, 3d Cir., 469 F.2d 911, 915 (1972):

"Analysis . . . reveals four concerns that the Supreme Court addresses in terms of mootness. They are: that some sort of judicial decree be possible, that the parties remain in a posture sufficiently adverse to insure effective litigation, that the issue in contention continue to be concrete, and that the issue not be one that will recur and yet be unreviewable."

The contracts assailed by the plaintiffs were allegedly negotiated with the approval of the Kentucky Department of Education in response to compatible requirements by the two school systems: Beechwood lacked the space to accommodate numerous Blessed Sacrament students desirous of enrolling in certain secular courses, while the parochial school enjoyed a surplus of room. These conditions resulted in a "dual enrollment" agreement whereby Beechwood employees would be assigned to teach in facilities rented from Blessed Sacrament. The instructors, who were compensated by and considered employees of the public school, were required to spend one class period daily on the Beechwood campus and attend meetings and other activities sponsored by that school. Similarly, those taking the special classes at Blessed Sacrament were considered Beechwood students for purposes of that enrollment subject to disciplinary and administrative regulations governing students educated at the public school campus. The agreements also provided that Blessed Sacrament would adopt the Beechwood school calendar and schedule, remove all religious ornamentation from the rented classrooms, and furnish janitorial service, furniture, lab equipment, and dining facilities. The rent due Blessed Sacrament under the contract effective 1970-1971 was determined with reference to the tuition which would be payable to Beechwood by those students attending the special classes who resided outside the Beechwood school district. The second agreement merely stated a rental of $1,250.00 per classroom per year, and provided that the "nonresident" students attending the special classes were to pay Beechwood tuition of $40.00 per teaching hour per year. It was stipulated that the Beechwood administration would periodically inspect Blessed Sacrament to insure compliance with the terms of the agreement.

The point of departure for an analysis of suspected governmental intrusion into religious affairs must be an acknowledgement that the First Amendment prohibits not merely the erection of a national religion:

"Its authors did not simply prohibit the establishment of a state church or a state religion . . . Instead they commanded that there should be `no law respecting an establishment of religion.' A law may be one `respecting' the forbidden objective while falling short of its total realization. A law `respecting' the proscribed result . . . is not always easily identifiable as one violative of the Clause. A given law might not establish a state religion but nevertheless be one `respecting' that end in the sense of being a step that could lead to such establishment and hence offend the First Amendment." Lemon v. Kurtzman, 403 U.S. 602, 612, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971).

While the demarcation of violative practices is ultimately one of degree, Id. at 614, 91 S.Ct. 2105, an examination of the contract and its implementation reveals an impermissible involvement with religion as contemplated by court decisions construing the Establishment Clause.

The Court in Lemon v. Kurtzman, supra, held that a law or practice respecting religion must satisfy three tests to withstand invalidation on constitutional grounds:

"First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, . . . finally, the statute must not foster `an excessive government entanglement with religion.'" Id. at 612-613, 91 S.Ct. at 2111.

Examination of the subject agreements belies conflict with at least two of the above standards.

The defendants argue that the secular purpose of the contracts is manifest by the nature of the courses taught by the loaned instructors; the site of the classes was occasioned solely by space limitations at Beechwood and should not be cast to pervert the true purpose of the agreement: to aid all children, regardless of faith. The plaintiffs reply that there was no threat of a sudden influx of parochial students to Beechwood since the evidence reveals no hint of financial instability on the part of Blessed Sacrament. The avowals of a desire to confer equal aid are countered by the absence of any suggestion that a clamor for public instruction in secular subjects originated with the students or their parents. The defendants' suggestion that Blessed Sacrament was merely a Beechwood "annex" is rebutted by the nonexistence of any student migration for other classes, activities, or athletic events. Rather, enrollees in the special classes were for all other purposes considered parochial students who ultimately received Blessed Sacrament diplomas. The extension theory is further negated by the comparative proportion of out-of-district students attending the two schools: while the roster of Blessed Sacrament included many nonresidents, Beechwood rarely admitted youths from outside the district and, indeed, bore no responsibility for their tutelage.

The plaintiffs' arguments that the purpose of the contracts was to foster Catholicism bears some merit; however, this court is inclined to respect the defendants' position that the agreement was designed to secure equality in the instruction of non-religious subjects. Further, the Supreme Court has recognized that the maintenance of societal diversity is a legitimate secular goal in negotiating arrangements of this nature. Committee for Public Education v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 2963, 37 L.Ed.2d 948 (1973). A decision on this issue is unnecessary, however, since the challenged contracts clearly effectuate religious advancement and foster excessive government administrative entanglement.

The defendants urge that the solvent financial condition of Blessed Sacrament proves that the primary effect of the agreements could not logically have been to aid religion. Any incidental pecuniary benefit which might inure to the religious school is no less defensible than aid granting reimbursement for private school transportation, Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), textbook loans, Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968), or property tax exemptions, Walz v. Tax Commission, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970). The plaintiff responds that the financial status of the institution receiving aid is immaterial where, as here, the principal effect of the program is to aid religion through freeing resources for...