Helms v. Cody

• Decision Date: 10 June 1994
• Docket Number: Civ. A. No. 85-5533.
• Parties: Mary L. HELMS, individually and as next friend of Amy T. Helms, a minor; et al., Plaintiffs, v. Wilmer CODY, as Louisiana State Superintendent of Instruction; et al., Defendants, Guy Mitchell, et al., Intervenors.
• Court: U.S. District Court — Eastern District of Louisiana

856 F. Supp. 1102

Mary L. HELMS, individually and as next friend of Amy T. Helms, a minor; et al., Plaintiffs, v. Wilmer CODY, as Louisiana State Superintendent of Instruction; et al., Defendants Guy Mitchell, et al., Intervenors.

Civ. A. No. 85-5533.

United States District Court, E.D. Louisiana.

June 10, 1994.

COPYRIGHT MATERIAL OMITTED

Lee Boothby, Boothby & Yingst, Washington, DC, for plaintiffs.

Jack A. Grant, Grant & Barrow, Grenta, LA, for defendants Jefferson Parish School Bd., Barbara Turner as Superintendent of Jefferson Parish Public School System, Martin Marino as President and member of Jefferson Parish School Bd., and Polly Thomas as Vice President and member of Jefferson Parish School Bd., Robert Wolfe, Barry Bordelon, O.H. Guidry, Laurie Rolling, Cedric Floyd, Sharon D. Bitzer, and Michael Hurley as members of Jefferson Parish School Bd.

Tom Rayer, Denechaud & Denechaud, New Orleans, LA, for defendant Sp. Educational Services Corp.

Drake Cutini, U.S. Dept. of Justice, Civ. Div., Washington, DC, for defendant Richard W. Riley as Secretary of U.S. Dept. of Educ.

William F. Baity, Asst. U.S. Atty., Chief, Civ. Div., New Orleans, LA, for Richard W. Riley as Secretary of U.S. Dept. of Educ.

Rose Polito Wooden and James C. Hrdlicka, Asst. Attys. Gen., Office of Atty. Gen., LA Dept. of Justice, Baton Rouge, LA, for defendants Dr. Raymond K. Arveson as LA Superintendent of Public Instruction, Mary Landrieu as LA State Treasurer, and LA State Bd. of Elementary and Secondary Educ.

William T. D'Zurilla, Place St. Charles, New Orleans, for intervenors Guy and Jan Mitchell, Earline Castillon, and Edward and JacLynn Welsch.

Patricia A. Dean, Arnold & Porter, Washington, DC, for intervenors Guy and Jan Mitchell, Earline Castillon, and Edward and JacLynn Welsch.

OPINION

HEEBE, District Judge.

The plaintiffs in this action are Mary L. Helms, individually and on behalf of her minor daughter, Amy T. Helms; Marie Louise Schneider; and Esperanza Tizol. They reside within the Jefferson Parish School District and within Jefferson Parish, Louisiana.

The defendants currently remaining in this case are:

a) Dr. Raymond K. Arveson as the Louisiana Superintendent of Public Instruction¹;

b) Mary Landrieu as Louisiana State Treasurer;

c) Richard W. Riley² as Secretary of the United States Department of Education;

d) United States Department of Education;

e) Louisiana State Board of Elementary and Secondary Education (BESE);

f) Jefferson Parish School Board (JPSB);

g) Barbara Turner³ as Superintendent of the Jefferson Parish Public School System;

h) Martin Marino⁴ as President and member of the Jefferson Parish School Board i) Polly Thomas⁵ as Vice President and member of the Jefferson Parish School Board;

j) Robert Wolfe, Barry Bordelon, O.H. Guidry, Laurie Rolling, Cedric Floyd, Sharon D. Bitzer, and Michael Hurley as members of the Jefferson Parish School Board⁶; and

k) the Special Educational Services Corporation.

The intervenors in this action are Guy and Jan Mitchell; Earline Castillon; and Edward and JacLynn Welsch.

Plaintiffs have challenged federal statutes, as well as Louisiana state programs, on their face and/or as administered and applied in Jefferson Parish, on the grounds that they violate the Establishment Clause of the First Amendment and the Fifth and Fourteenth Amendments. Presently before the Court are the following claims:

1. That the special education programs providing special education services through the use of public school employees on the premises of sectarian schools in Jefferson Parish, Louisiana are unconstitutional.

2. That Louisiana statutory provisions authorizing the funding of special education programs on the premises of pervasively sectarian institutions are unconstitutional on their face, and as implemented and applied.

3. That Louisiana's legislatively-adopted program for the provision of reimbursement to nonpublic schools for administrative expenses is unconstitutional.

4. That the transportation program which provides for separate transportation of public and nonpublic school children in Jefferson Parish is unconstitutional in its application.

5. That the transportation program results in excessive entanglement.

6. That the state statute authorizing a flat-rate reimbursement to parents transporting their children to school is unconstitutional on its face and as previously administered and applied.

7. That the capital expense provision of Chapter 1 of the Education Consolidation and Improvement Act of 1981 is unconstitutional on its face.

This matter came on for trial on a previous date. This Court, having heard the testimony at trial and having considered the record, the evidence, the transcript, the applicable law, and the excellent memoranda submitted by the parties, now makes the following findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a), as hereafter set forth.

FINDINGS OF FACT

1. Plaintiff, Mary L. Helms, is the mother of Amy T. Helms who at the time of trial was an eleventh grade student at Bonnabel High School, which is located in Jefferson Parish and is operated by the Jefferson Parish Public School System.

2. Plaintiff, Esperanza Tizol, is the mother of Herman Tizol and Alia Tizol who at the time of trial were enrolled at Congetta Trippe Janet Elementary School, which is located in Jefferson Parish and is operated by the Jefferson Parish Public School System.

3. Plaintiff, Marie Louise Schneider, has no children enrolled in the Jefferson Parish Public School System. She represents Chapter 1 parents in Jefferson Parish as the "parental advisory counsel parishwide chairperson." Doc. 260, p. 7.

4. Each of the plaintiffs is a United States citizen and citizen of the State of Louisiana, and pays either excise taxes or income taxes to the United States. Doc. 219, p. 3.

5. This Court has already found that each of the plaintiffs pays sales and other taxes to the State of Louisiana and each plaintiff pays local sales tax which ultimately benefits the Jefferson Parish Public School System. Doc. 219, p. 3. Therefore, this Court finds that the plaintiffs have standing to challenge the various state programs at issue in this case.

6. Plaintiffs also have standing to challenge the facial validity of the "capital expenditures" provision of Chapter 1 of the Elementary and Secondary Education Act of 1965, as amended, 20 U.S.C. § 2727(d). Doc. 219.

I. SPECIAL EDUCATION

A. WHETHER THE SPECIAL EDUCATION PROGRAMS PROVIDING SPECIAL EDUCATION SERVICES THROUGH THE USE OF PUBLIC SCHOOL EMPLOYEES ON THE PREMISES OF SECTARIAN SCHOOLS IN LOUISIANA, INCLUDING JEFFERSON PARISH, ARE UNCONSTITUTIONAL.

B. WHETHER LOUISIANA STATUTORY PROVISIONS AUTHORIZING THE FUNDING OF SPECIAL EDUCATION PROGRAMS ON THE PREMISES OF PERVASIVELY SECTARIAN INSTITUTIONS ARE UNCONSTITUTIONAL ON THEIR FACE, AS WELL AS IMPLEMENTED AND APPLIED.

FINDINGS OF FACT

1. Plaintiffs claim that the state's special education program, that being La.Rev.Stat. §§ 17:1941-1956, as it is being administered and applied, is unconstitutional under the First and Fourteenth Amendments to the United States Constitution.

2. Plaintiffs also make a facial challenge to the special education statutes, contending that they authorize the expenditure of tax-derived funds for the payment of the salaries and expenses of teachers and staff at pervasively sectarian institutions where the employees of those institutions, other than public school employees, provide special education services.

3. La.Rev.Stat. § 17:1941 provides that it is the duty of the state, city and parish public school systems of the state of Louisiana "to provide an appropriate, free, publicly supported education to every exceptional child who is a resident therein." La.Rev.Stat.Ann. § 17:1941 (West 1982).

4. The stated legislative purpose of the Louisiana special education statute is:

to provide for a flexible and uniform system of special education for all children requiring such programs and related services; to provide a flexible and nondiscriminatory system for identifying and evaluating the individual needs of the child; to determine the appropriateness of the special education program; to conduct a periodic evaluation of the program and its benefit to the child; to prevent denials of equal educational opportunities on the basis of national origin, sex, economic status, race, religion, and physical or mental handicap or other exceptionalities in the provision of appropriate, free publicly supported education; and to provide such special education programs herein described and related services in the least restrictive alternative education settings.

La.Rev.Stat.Ann. § 17:1941.

5. La.Rev.Stat. § 17:1943(2) defines an exceptional child as one who is "mentally disabled, gifted and talented, hard of hearing, deaf, speech impaired, severe language disordered, visually impaired, emotionally disturbed, orthopedically impaired, hospital/homebound, other health impaired, learning disabled, which includes attention deficit disordered and dyslexia, traumatic brain injured, or autistic, and as a result may require special education or related services." La. Rev.Stat.Ann. § 17:1943(2) (West Supp.1994).

6. In Louisiana, special education is "any program of instruction within the preschool, elementary, and secondary school structures of the state, specifically designed to provide for different learning styles of exceptional children." La.Rev.Stat.Ann. § 17:1943(4) (West Supp.1994).

7. Section 17:1944(A)(1) provides that the special educational services are to "be administered at the state level by the Department of Education, with the approval of its governing authority, and on the city or parish level by parish or city school boards." La.Rev. Stat.Ann. § 17:1944(A)(1) (West Supp.1994). Section 17:1944(A)(2) provides that the office of special education services within the Department of Education "shall provide general...