Helms v. Picard
| Citation | 151 F.3d 347 |
| Decision Date | 17 August 1998 |
| Docket Number | No. 97-30231,97-30231 |
| Parties | 128 Ed. Law Rep. 593 Mary L. HELMS, individually and as next friend of Amy T. Helms; Amy T. Helms, a minor; Marie L. Schneider, Plaintiffs-Appellants-Cross Appellees-Appellees, v. Cecil J. PICARD, Louisiana Superintendent of Public Education; Kenneth Duncan, Louisiana State Treasurer; Louisiana State Board of Elementary and Secondary Education; Jefferson Parish School Board System; Elton Lagasse, Superintendent of the Jefferson Parish School System; Laurie E. Rolling, President and member of the Jefferson Parish School Board; Libby Moran, Vice President and member of the Jefferson Parish School Board; Robert Wolfe, member of the Jefferson Parish School Board; Barry Bordelon, member of the Jefferson Parish School Board; O.H. Guidry, member of the Jefferson Parish School Board; Cedric Floyd, member of the Jefferson Parish School Board; Polly Thomas, member of the Jefferson Parish School Board; Gene Katsanis, member of the Jefferson Parish School Board; Martin Marino, member of the Jefferson Parish School Board, Defendants-Appellees-Cross Appellants, and Richard W. Riley, Secretary of the United States Department of Education; United States Department of Education, Defendants-Appellees, and Special Education Services Corporation, Defendant-Appellant, and Guy Mitchell; Jan Mitchell; Eugene Cerise; Kathy Cerise, Intervenor Defendants-Appellees-Cross Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Lee Fox Boothby, Boothby & Yingst, Washington, DC, for Plaintiffs-Appellants-Cross-Appellees-Appellees.
Patricia Ann Dean, Andrew Tanner Karron, Arnold & Porter, Washington, DC, William Thomas D'Zurilla, Gordon, Arata, McCollam & Duplantis, New Orleans, LA, for Intervenor-Defendants-Appellees-Cross-Appellants.
Drake Stephen Cutini, Howard S. Scher, Matthew Miles Collette, U.S. Dept. of Justice, Washington, DC, for Defendants-Appellees.
Jack A. Grant, Andree Hunter Greenleaf, Grant & Barrow, Gretna, LA, for Defendants-Appellees-Cross-Appellants except Picard, Duncan, and Louisiana State Bd. of Elementary and Secondary Educ.
David Glen Sanders, Asst. Atty. Gen., Baton Rouge, LA, for Defendants-Appellees-Cross-Appellants Picard, Duncan and Louisiana State Bd. of Elementary and Secondary Educ.
Marshall Beil, Catherine A. Rogers, Ross & Hardies, New York City, for Amicus Curiae National Committee for Public Educ. and Religious Liberty.
Marjorie Ruth Esman, New Orleans, LA, Kenneth M. Dreifach, Morrison & Foerster, New York City, for Amicus Curiae American Civil Liberties Union and Anti-Defamation League.
Thomas A. Rayer, Sr., Denechaud & Denechaud, New Orleans, LA, for Defendant-Appellant.
Appeals from the United States District Court for the Eastern District of Louisiana.
Before DUHE, BENAVIDES and STEWART, Circuit Judges.
I.
This case requires us to find our way in the vast, perplexing desert of Establishment Clause jurisprudence. Plaintiffs, as taxpayers, sued Defendant Jefferson Parish School Board et al., claiming that three state and one federal school aid programs were unconstitutional as applied in Jefferson Parish, Louisiana. 1 The District Court initially granted Plaintiffs' motion for summary judgment on some issues. The court then conducted a bench trial on the remaining issues and rendered judgment. When the case was reassigned due to the district judge's retirement, the new judge reversed some of the court's earlier rulings. All told, the parties spent some thirteen years in district court before reaching this Court. During that time the sand dunes have shifted.
II.
Plaintiffs first challenge Louisiana's special education program, codified at LA.REV.STAT.ANN. § 17:1941-1956 (West 1982 & West Supp.1998), as administered in Jefferson Parish, under the Establishment Clause. After a bench trial, the district court ruled that the special education program was unconstitutional as applied, because it had the impermissible effect of advancing religion and because the monitoring necessary to prevent such an effect would result in excessive entanglement between church and state. See Helms v. Cody, 856 F.Supp. 1102, 1121 (E.D.La.1994) ("Helms").
"It is and shall be the duty of 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 ("special education statute"). 2 Louisiana law defines "special education" as "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.1998). Special education programs are administered by the State Department of Education ("the Department") at the state level, and by parish or city school boards at the parish or city levels; at those lower levels, the Department provides "only general supervision and monitoring." LA.REV.STAT.ANN. § 17:1944(A)(1) (West Supp.1998). 3
The district court found that state funds for special education programs are allocated to the Jefferson Parish Public School System ("JPPSS") "based on the number of exceptional children served by employees of the local school board, consistent with state-required pupil/teacher ratios for the provision of services to students with particular exceptionalities." Helms, 856 F.Supp. at 1110. The court also found that "[t]he public school system receives federal monies based on the 'child count' of special education students enrolled at both public and nonpublic schools." Id.
The Department or city/parish school boards are authorized to "enter into a purchase of services agreement with any other public or nonpublic school, agency or institution to provide free appropriate education to exceptional children in need of special education and related services...." LA.REV.STAT.ANN. § 17:1949-50 (West 1982). Pursuant to that authority, the Jefferson Parish School Board ("JPSB") contracted with the Special Education Services Corporation ("SESC") to provide special education services by public school teachers at private schools operated under the authority of the Archdiocese of New Orleans. 4 The district court found that at the time of trial the sole employee of SESC (its executive director Jan Janz) was also a paid employee of the Office of Special Education for the Archdiocese of New Orleans; additionally, the members of the SESC were
[t]he respective Presidents of the Archdiocesan School Board and Diocesan School Board of the Roman Catholic Archdiocese of New Orleans, and the Roman Catholic Diocese of Lafayette, Baton Rouge, Houma-Thibodeaux, and Lake Charles, and a representative to be appointed by the Bishop of the Diocese of Alexandria-Shreveport, respectively.
Helms, 856 F.Supp. at 1108. The court thus concluded that SESC was a "religiously-affiliated corporation." Id.
The availability of special education services on the premises of nonpublic schools in Jefferson Parish caused a "dramatic escalation of requests for special-education teachers and aides by the approved nonpublic schools...." Helms, 856 F.Supp. at 1108. Wary that such a trend might funnel off too many students and teachers to private schools, in 1982 the JPSB formed a committee comprised of its staff and staff from the Archdiocese of New Orleans to study the problem. The committee issued a report recommending, inter alia, (1) that state funding for teachers and aides working in nonpublic schools be capped at its 1982-83 levels (excluding teachers covered under the contractual agreement for 1982-83 with SESC); (2) that, beginning with the 1983-84 academic year, "the total local costs for any new positions or vacancies for teachers or teacher aides will be borne by the Catholic schools to which these persons are assigned"; and (3) that the Archdiocese would be able to establish new special education classes at its schools, but that "the total local costs ... [would] be the responsibility of the individual schools." Id. at 1109. The JPSB approved the report.
The JPSB/SESC contract for the 1989-90 school year provided that the JPSB would hire up to 14 special education teachers and up to 5 teacher assistants. These teachers and assistants were assigned to Chinchuba Institute for the Deaf and eight parochial schools. 5 Under the contract, the classrooms were to be provided by SESC at no cost to the JPSB. The special education programs conducted in those classrooms would be supervised by both the JPSB and the administrator of SESC.
Pursuant to the contract, SESC billed the JPSB for the cost of the special education teachers and teacher assistants provided to the nine nonpublic schools. For the fiscal year 1989-90, that cost was estimated to be approximately $149,583.00. The salary of a special education teacher, one facet of those costs, consists of (1) money from the "minimum foundation" program (i.e., money that comes to Jefferson Parish from the State); and (2) the local salary supplement. In the public schools, the JPSB pays the local salary supplement. By contrast, in the nonpublic schools the SESC agreed to pay the supplement. Since 1987, SESC has been funded by contributions from the participating nonpublic schools. The parents of special education students attending these nonpublic schools pay a supplemental fee to SESC, in addition to tuition they would normally pay. See Helms, 856 F.Supp. at 1117.
Jefferson Parish special education teachers in both public and nonpublic schools are subject to the same Collective Bargaining Agreement. A clause in the 1989-90 agreement states that "[p]ositions in special education classes which are provided in nonpublic schools and are a duplication of services provided by the Jefferson Parish Public School System shall be filled only after all special education positions in the Jefferson...
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