AMERICANS UNITED, ETC. v. Porter

• Court: U.S. District Court — Western District of Michigan
• Citation: AMERICANS UNITED, ETC. v. Porter, 485 F.Supp. 432 (W.D. Mich. 1980)
• Decision Date: 20 February 1980
• Docket Number: No. G 287-72-CA 7.,G 287-72-CA 7.
• Parties: AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE et al., Plaintiffs, v. John W. PORTER et al., Defendants.

485 F. Supp. 432

AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE et al., Plaintiffs, v. John W. PORTER et al., Defendants.

No. G 287-72-CA 7.

United States District Court, W. D. Michigan, S. D.

February 20, 1980.

Stuart Hubbell, Traverse City, Mich., Emory A. Dakoske, co-counsel, Hubbell, Houlihan & Elhart, Traverse City, Mich., for Grand Traverse Catholic Schools.

Patrick J. Wilson, Running, Wise & Wilson, Traverse City, Mich., for Traverse City Schools.

William B. Ball, Ball & Skelly, Harrisburg, Pa., for intervenor-defendants.

Frank J. Kelley, Atty. Gen., Gerald F. Young, Asst. Atty. Gen., Lansing, Mich., for Supt. John W. Porter.

Albert R. Dilley, Grand Rapids, Mich., for plaintiffs.

OPINION

ENGEL, Circuit Judge, sitting by designation.

In this litigation the court measures the dual enrollment program instituted by the Traverse City Public Schools against the limitations of the Establishment Clause of the First Amendment to the United States Constitution.¹

As the American political and economic society becomes more complex, so does the task of educating the young. New programs, policies and regulations intended to aid the students also drastically increase the cost of education. The operation of private schools provides an undeniable benefit to the general public. These schools educate a large number of our young people without public support, while the families whose children attend these schools continue to support the operation of the public schools. Private schools also greatly benefit the public by providing choice through diversity in education, and by serving as competitive institutional models for the public schools. The substantiality of these benefits has long been recognized and urged as the justification for various forms of public assistance to private schools. In his separate opinion in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), Mr. Justice Brennan noted that this argument had been advanced in the Illinois courts in 1888:

The recurrent argument, consistently rejected in the past, has been that government grants to sectarian schools ought not to be viewed as impermissible subsidies "because the schools relieve the state of a burden, which it would otherwise be itself required to bear . . .. they will render a service to the state by performing for it its duty of educating the children of the people." Cook County v. Chicago Industrial School, 125 Ill. 540, 571, 18 N.E. 183, 197 (1888).

Id. at 654, 91 S.Ct. at 2131.

The benefits conferred on the public by private sectarian schools cannot be denied, but public aid to those schools is sharply circumscribed by the absolute terms of the First Amendment. Each attempt to aid a sectarian enterprise must be carefully scrutinized to determine whether it constitutes a "law respecting an establishment of religion." Although the effect of the First Amendment may often seem harsh, it has served to preserve American's cherished freedom to worship according to one's choice, without coercion or government sanction, for nearly 190 years.

I. FACTS

Most of the relevant facts concerning the Traverse City dual enrollment program are undisputed. While the court has carefully considered the entire record, the salient facts can be stated very briefly here. More detailed facts will be developed in the latter portions of the opinion to which they are relevant.

Shared time instructional programs, which provide non-public school students with the opportunity to take public school classes on a part-time basis, have been a part of Michigan's educational system for over 50 years.² Following a 1970 amendment to the Michigan Constitution which was intended to bar implementation of parochiaid legislation, the Michigan Supreme Court was asked to render an advisory opinion on the constitutionality of shared time programs in Michigan. Traverse City School District v. Attorney General, 384 Mich. 390, 185 N.W.2d 9 (1971). The court ruled that it is permissible under the Michigan Constitution to offer public school classes to non-public school students on premises leased from non-public schools.³

It is against this backdrop that the dual enrollment program at St. Francis High School was established. In December, 1970, the Board of Education of the Grand Traverse Area Catholic Schools voted to close grades 7 and 8 of Immaculate Conception Middle School and grades 9 through 12 of St. Francis High School at the close of the 1970-71 school year. As a result of this decision, the Traverse City Public School District was faced with the responsibility to provide an education for over 600 parochial school students who would be newly entering the public school system. The problems occasioned by such a sudden influx of new students are readily apparent. Shortages of classroom space, teachers and equipment all contributed to make the imminent closing of these Catholic schools a serious problem for public school administrators.

Following the Michigan Supreme Court's decision in Traverse City School District v. Attorney General, the Traverse City Public School District agreed to lease a portion of the Immaculate Conception Middle School building and a portion of the St. Francis High School building for use as public school classrooms commencing with the September, 1971 fall term. Included in the lease were provisions for a $200 yearly rental fee, removal of all religious objects from the leased premises, and the posting of 10" × 18" signs designating the premises as a public school. The rental fee was subsequently modified so that only the nominal amount of $1 per year is presently paid for the use of the premises. The leasing plan was reviewed and approved by the Office of the Attorney General and by the Michigan Department of Education. Since then both parties have scrupulously adhered to the terms of the lease.

Although the public school classes conducted on the premises leased in the Immaculate Conception Middle School were discontinued at the end of the 1973-1974 school year, the leased portion of the second floor of the St. Francis School building, designated as the public school "Annex," continues to be used for public school classes. In addition, the public school district receives state aid payments for the 457 part-time public school students currently attending classes at the Annex.⁴

St. Francis High School has continued to operate as a parochial school, but it does not offer a complete high school program. Its students must take some classes through the public schools to graduate. Although approximately 98 St. Francis students are enrolled in classes at Traverse City's principal high school facility, the Milliken Street campus, it is possible and not unusual for a student to graduate from high school by taking only those courses offered at St. Francis and at the Annex in the St. Francis building.

Since its inception, the Annex has maintained a teaching staff of 8 to 12 public school teachers, who have taught a variety of courses, including French, Algebra, Geometry, Physiology, Biology, Accounting, American Government, World Cultures, Typing and various Business Education classes. Although the proofs do not show the number of teachers currently employed by St. Francis High School, the school announced at the beginning of the program that it would maintain a staff of nine teachers. St. Francis High School has continued to offer courses in Religion, English, Chemistry, Earth Sciences, Pre-Algebra, Advanced Algebra, Senior Math, Consumer's Math, Teacher Aide and Librarian Aide, Physical Education, Choral, and Instrumental Music. There is no duplication of course offerings between St. Francis High School and the Annex. Although the Annex is theoretically open to all public school students, Annex classes (with the exception of driver's education) are attended solely by students who are primarily enrolled in St. Francis High School.

II. THE CONSTITUTIONAL STANDARD

The First Amendment states that "Congress shall make no law respecting an establishment of religion . . . ." This prohibition is applied to the states through the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). In Lemon v. Kurtzman, 403 U.S. 602, 612, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971), the Supreme Court described the scope of this clause as follows:

The language of the Religion Clauses of the First Amendment is at best opaque, particularly when compared with other portions of the Amendment. Its authors did not simply prohibit the establishment of a state church or a state religion, an area history shows they regarded as very important and fraught with great dangers. 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, that is, the establishment of religion, 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.

In the absence of precisely stated constitutional prohibitions, we must draw lines with reference to the three main evils against which the Establishment Clause was intended to afford protection: "sponsorship, financial support, and active involvement of the sovereign in religious activity." Walz v. Tax Commission, 397 U.S. 664, 668 90 S.Ct. 1409, 1411, 25 L.Ed.2d 697 (1970).

In Lemon the Court distilled from its previous decisions a three-prong test, which addresses these "three main evils" against which the Establishment Clause was intended to protect:

First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of

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