DiCenso v. Robinson

• Decision Date: 09 November 1970
• Docket Number: Civ. A. No. 4239.
• Citation: 316 F. Supp. 112
• Parties: Joan DiCENSO et al., Plaintiffs, v. William P. ROBINSON, Jr., et al., Defendants, and John R. Earley et al., Intervenor-Defendants.
• Court: U.S. District Court — District of Rhode Island

316 F. Supp. 112

Joan DiCENSO et al., Plaintiffs, v. William P. ROBINSON, Jr., et al., Defendants, and John R. Earley et al., Intervenor-Defendants.

Civ. A. No. 4239.

United States District Court, D. Rhode Island.

June 15, 1970.

Probable Jurisdiction Noted November 9, 1970.

Leo Pfeffer, New York City, Alan M. Shine, and Richard W. Zacks, Harold E. Adams, Jr., William J. Sheehan, Benjamin A. Smith, Milton Stanzler, Providence, R. I., for plaintiffs.

Herbert F. DeSimone, Atty. Gen. of Rhode Island, W. Slater Allen, Jr., Asst. Atty. Gen. of Rhode Island, Providence, R. I., for defendants.

Edward Bennett Williams, Jeremiah C. Collins, Charles H. Wilson, Jr., Washington, D. C., Richard P. McMahon, William F. McMahon, of Roberts & Mcmahon, Providence, R. I., for intervenor-defendants.

Franklin C. Salisbury, Washington, D. C., for Protestants and Other Americans United for Separation of Church and State, amicus curiae.

Before COFFIN, Circuit Judge, and PETTINE, and BOWNES, Judges.

Probable Jurisdiction Noted November 9, 1970. See 91 S.Ct. 142.

OPINION

COFFIN, Circuit Judge.

Rhode Island's Salary Supplement Act, R.I. Public Laws c. 246 (1969) provides for the payment of state funds to teachers of secular subjects in non-public elementary schools. At present the sole beneficiaries of this statute are teachers in Roman Catholic schools. This suit seeks a declaration that the Act violates the Establishment and Free Exercise Clauses of the First Amendment and an injunction against its continued operation.

Plaintiffs are citizens and taxpayers of the state of Rhode Island. The named defendants include Rhode Island's Commissioner of Education, the state Treasurer, and the state Controller, all of whom are involved in the administration of the Act. In addition, a couple with children in parochial schools and several teachers eligible for aid under the statute have been permitted to intervene under Rule 24(b), Fed.R.Civ.P. Jurisdiction is based on 28 U.S.C. § 1343(3). Since the complaint seeks to enjoin a state law as repugnant to the Constitution, this three-judge court has been convened pursuant to 28 U.S.C. §§ 2281, 2284.

The complaint alleges in substance that Catholic schools are the primary beneficiaries of the Act, that the goal of these schools is the propagation of the Catholic faith, and that the statute therefore has as its purpose and primary effect the advancement of religion. Plaintiffs also claim that the statute constitutes compulsory taxation in aid of religion and thus violates the Free Exercise Clause. In their answers, defendants and defendant-intervenors have stressed that the Act aids teachers, not schools, and have denied plaintiffs' conclusion concerning the purpose and effect of the Act. Defendant-intervenors have also alleged that the injunctive relief sought by plaintiffs would infringe the free exercise of religion of those whose children attend parochial schools.¹

The case is now before us for final decision on the merits of plaintiffs' and intervenors' constitutional claims. We have held a hearing, at which we received depositions and documentary evidence, and heard testimony from the Superintendent of Schools for the Archdiocese of Providence, an Associate Commissioner of Education for the state of Rhode Island, and several teachers eligible for aid under the statute. On the basis of this record, we make the following findings of fact and reach the following conclusions of law in compliance with Rule 52(a), Fed.R.Civ.P.²

I. Findings of Fact

A. The Statutory Scheme

The Salary Supplement Act opens with a statement that its general purpose is to implement the established state policy of providing "a quality education for all Rhode Island youth".³ This declaration is followed by specific legislative findings: that non-public elementary schools enroll 45,000 students, or 25 per cent of Rhode Island's elementary school children; that because of the numbers enrolled, these schools are vital to Rhode Island's educational effort; and that the rising cost of teachers' salaries makes it increasingly difficult for these schools to maintain their traditional quality. The specific purpose of the Act is, in the language of the statute, "to assist non-public schools to provide salary scales which will enable them to retain and obtain teaching personnel who meet recognized standards of quality." To accomplish this objective, the legislature appropriated $375,000 to pay up to 15 per cent of the salaries of teachers of secular subjects in non-public elementary schools. The Act defines "non-public" school to mean a non-profit school whose average per pupil expenditure on secular education does not exceed the average for the state's public schools during a specified period. To qualify for aid, a teacher must have a teaching certificate, must teach a course similar to those offered in Rhode Island's public schools using textbooks approved for public school use,⁴ and must agree not to teach a class in religion.

Regulations implementing the Act call for semi-annual payments to eligible teachers in February and June.⁵ Applicants must sign a "Statement of Eligibility" promising not to teach a course in religion and to use only teaching materials employed in the state's public schools. The Commissioner of Education also requires non-public schools to submit data concerning enrollments and total expenditures. If this data indicates a per-pupil expenditure in excess of the statutory norm, an agent of the Commissioner must examine the books of the school in question in order to determine how much of its spending was attributable to secular education and how much to religious.

To date, this final breakdown into secular and religious expenses has proved necessary in only one case. Only two non-public schools have reported expenditures in excess of the statutory norm, and teachers at one of these schools failed to apply for aid, thus obviating the need for further inquiry.⁶ Approximately 250 teachers have applied for aid. It is undisputed that all of these applicants are employed by Roman Catholic schools.

B. Nature of the Crisis Leading to the Statute

The evidence introduced at trial fully corroborates the legislature's finding of a financial crisis in non-public education, but indicates that the crisis is largely confined to Rhode Island's Catholic schools. Approximately 95 per cent of the elementary school children attending non-public schools are enrolled in Roman Catholic elementary schools. The financial crisis in these schools stems from the rapidly changing composition of their faculties. As recently as ten years ago, the Archdiocese of Providence relied almost exclusively on nuns to staff its school system. Lay teachers filled only 4 or 5 per cent of the system's 1200 teaching positions. By 1969, lay teachers constituted one third of the teaching force. In the academic year 1970-1971, the great majority of parishes will require at least one additional lay teacher, with some needing two or three more. This precipitous increase in lay personnel—an increase which is expected to continue—has placed a double burden on the parish budgets which finance almost all of the 98 elementary schools. Each shift from a teaching sister to a lay teacher represents a threefold increase in salary expense (i. e., a shift from approximately $1800 to $5500 at present levels). Moreover, the increasing salary levels in public schools make the task of recruiting lay teachers annually more expensive.

The Salary Supplement Act will not relieve the parishes or parents of their escalating burden, but will temporarily enable parochial schools to compete for qualified teachers. A comparison of past and predicted salary levels confirms the limited impact of the statute. In 1968-1969, a starting lay salary in the parochial schools was $5000 a year. In 1969-1970 the diocesan school system offered $6000, hoping that 15 per cent of this amount, or $900, would be paid by the state under the Supplement Act. In the meantime, however, the standard beginning salary for public elementary school teachers in Providence and elsewhere has increased from $6000 to $7000. Even assuming, as does the Superintendent of the diocesan school system, that the parochial schools can compete effectively for teachers if they come within $500 of public school salaries, the diocese must offer a starting salary of $6500 in 1970, of which $975 would be paid by the state and $5525 would be paid by the parish—an increase of ten per cent over the $5000 parish expenditure pre-1969.

The financial implications for both the parishes and the state are clear. Even to continue to subsidize the salaries of the present teacher-recipients at the present percentage figure will cost both the state and the parishes substantially more during the coming school years. But already the Superintendent of the diocesan school system has informed elementary school principals that he expects the present ratio of two sisters to one lay teacher to give way to a one to one ratio in the near future. Moreover, the Superintendent acknowledged at trial that almost all of the teaching staff might be lay persons within five years. Since, as we have seen, the substitution of a lay for a religious teacher means, even at present rates, a threefold increase in salary cost, it is obvious not only that the parochial schools face a monumental and deepening financial crisis but also that the objective and rationale of the Salary Supplement Act— to enable non-public schools to compete effectively for qualified teachers—will inescapably require substantially greater appropriations subsidizing substantially greater percentages of the salaries of lay teachers.

C. The Parochial School System

At trial, the parties went beyond the immediate financial crisis in parochial schools to explore the operations of the diocesan school system as a whole. Plaintiffs' evidence was designed to show the close...