National Coalition for Public Ed. v. Harris

• Decision Date: 18 April 1980
• Docket Number: 76 Civ. 888 (CHT).
• Citation: 489 F. Supp. 1248
• Parties: NATIONAL COALITION FOR PUBLIC EDUCATION AND RELIGIOUS LIBERTY et al., Plaintiffs, v. Patricia R. HARRIS, Secretary of the United States Department of Health, Education and Welfare, et al., Defendants, and James and Bessie Bovis et al., and Philip and Ida Fenster et al., Intervenors-Defendants.
• Court: U.S. District Court — Southern District of New York

489 F. Supp. 1248

NATIONAL COALITION FOR PUBLIC EDUCATION AND RELIGIOUS LIBERTY et al., Plaintiffs, v. Patricia R. HARRIS, Secretary of the United States Department of Health, Education and Welfare, et al., Defendants and James and Bessie Bovis et al., and Philip and Ida Fenster et al., Intervenors-Defendants.

76 Civ. 888 (CHT).

United States District Court, S. D. New York.

April 18, 1980.

COPYRIGHT MATERIAL OMITTED

Leo Pfeffer, New York City, for plaintiffs.

William M. Tendy, U. S. Atty., S.D.N.Y., by Michael H. Dolinger, Asst. U. S. Atty., New York City, for defendants Harris and Boyer.

Allen G. Schwartz, Corp. Counsel of City of New York by Lorna Bade Goodman, New York City, Mary Tucker, Brooklyn, N. Y., for defendant Chancellor of the Board of Education of the City of New York.

Williams & Connolly, by Edward Bennett Williams, Charles H. Wilson, Kevin T. Baine, Stephen L. Urbanczyk, Washington, D. C., for intervenors-defendants Bovis et al.

National Jewish Commission on Law and Public Affairs, by Dennis Rapps, New York City, for intervenors-defendants Fenster et al.

Before VAN GRAAFEILAND, Circuit Judge, and TENNEY and VINCENT L. BRODERICK, District Judges.

OPINION

TENNEY, District Judge.

The constitutional prohibition against government aid to parochial schools¹ has provoked considerable litigation resulting in an array of not entirely harmonious judicial decisions.² This Establishment Clause challenge to Title I of the Elementary and Secondary Education Act of 1965, 79 Stat. 27, as amended, 20 U.S.C. §§ 2701 et seq. ("Title I"), was launched over twenty years ago and, at that time, culminated in the landmark decision of Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). The same day that Flast established that a taxpayer had standing to assert this First Amendment claim, the Supreme Court upheld a New York law requiring local public school authorities to lend textbooks free of charge to parochial school students. Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968). Confronted with this unfavorable precedent and an apparently unsympathetic Court, the opponents of Title I decided to postpone pursuit of their claim. The legal landscape has now changed and the challenge has been renewed. The National Coalition for Public Education and Religious Liberty ("PEARL") has brought this suit against the Secretary of Health, Education and Welfare, the United States Commissioner of Education, and the Chancellor of the New York City Board of Education to enjoin the allocation and use of Title I funds for the remedial education of parochial school students by public school teachers on the premises of the parochial schools during regular school hours.

Since Flast and Allen were decided, two developments have occurred that are decisive in the resolution of this lawsuit. First, a series of Supreme Court decisions have clarified in part the precise concerns underlying the First Amendment's prohibition against the establishment of religion. Second, New York City has been running Title I programs for about fourteen years and has accumulated an extensive record of operations that can be examined and evaluated. Upon viewing this record in light of the considerations embodied in the Establishment Clause, this Court has concluded that Title I, as interpreted and applied in New York City, does not violate the First Amendment of the Constitution.

Procedural Background

After this lawsuit was filed, the Court granted motions to intervene as defendants that were made by certain parents of children who attend parochial schools in New York and who receive remedial educational assistance under Title I. A three-judge court was convened to hear and decide the case pursuant to 28 U.S.C. § 2282.³

Plaintiffs then moved for summary judgment or, in the alternative, for a preliminary injunction. Relying on Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975), and Public Funds for Public Schools v. Marburger, 358 F.Supp. 29 (D.N.J.) (three-judge court), aff'd mem., 417 U.S. 961, 94 S.Ct. 3163, 41 L.Ed.2d 1134 (1974), discussed infra, the plaintiffs asserted that the Supreme Court twice "has faced the constitutional question raised in this case, and in both instances it has ruled the challenged statute unconstitutional on its face." Plaintiffs' Memorandum in Support of Motion for Summary Judgment at 2. The Court denied both motions. National Coalition for Public Education and Religious Liberty v. Califano, 446 F.Supp. 193, 196 (S.D.N.Y.1978). Not only did the plaintiffs fail to show the threat of irreparable injury that is a prerequisite to preliminary injunctive relief, but, as noted by the Court, an order halting the remedial education program in the middle of the year would work an unwarranted hardship on the defendants and would harm the public interest. Id. at 195. The Court also rejected PEARL's summary judgment argument for two reasons.

First, the plaintiffs' challenge is not to this statute on its face; rather, they challenge Title I only "insofar as it authorizes the expenditure of federal funds to finance educational services within religious schools during school hours." Notice of Motion ¶ 3. The limited nature of this challenge to a particular application of the statute necessarily demands that this Court be fully informed on the exact manner in which these Title I funds are used, in order both that the Court may understand and evaluate the alleged constitutional improprieties of this use of Title I funds and that the Court may shape a suitable injunctive order should such improprieties be found.

Second, as the Supreme Court has noted,

The task of deciding when the Establishment Clause is implicated in the context of parochial school aid has proved to be a delicate one for the Court. Usually it requires a careful evaluation of the facts of the particular case. It would be wholly inappropriate for us to attempt to render an opinion on the First Amendment issue when no specific plan is before us. A federal court does not sit to render a decision on hypothetical facts . ..

Wheeler v. Barrera, 417 U.S. 402, 426-27, 94 S.Ct. 2274, 2288, 41 L.Ed.2d 159 (citations omitted). In evaluating a first amendment challenge, a court must examine, inter alia, whether "the statute and its administration avoid excessive entanglement with religion." Meek v. Pittenger, supra, 421 U.S. 349 at 358, 93 S.Ct. 1753 at 1760 44 L.Ed.2d 217 (emphasis added). Such an examination is not possible on the current record.

Id. at 196.

An evidentiary hearing was conducted in May 1979. Plaintiffs called only one witness, Dr. John Ellis, Executive Deputy Commissioner for Educational Programs in the United States Office of Education. Plaintiffs' counsel stated that he was seeking to determine how the federal government interprets and administers Title I and proceeded to ask Dr. Ellis a series of primarily hypothetical questions based on prior Supreme Court decisions. Tr. 40-65. Pursuant to an agreement reached at a pretrial conference, the defendants presented the bulk of their case in the form of a narrative summary which was received into evidence. Defendants' Exh. T. This summary synthesized numerous affidavits, Defendants' Exh. U, Tabs A-1 to A-58, and documentary evidence, Defendants' Exhs. A-S, which described the operation of New York City's Title I program in nonpublic schools. The defendants also called seven witnesses who were teachers or administrators in the program.

At the start of the evidentiary hearing, plaintiffs' counsel stated that PEARL had no evidence showing that New York City's Title I program was unconstitutional. Tr. 8. Counsel explained that PEARL had sought to discontinue the suit against the City because "proof of such a constitutional violation and the financing of a trial record is beyond our means." Id. at 7-8. The City, however, had rejected PEARL's discontinuance offer.⁴ The plaintiffs therefore asked the Court to enter judgment in favor of the City and allow the case to go forward against the two federal officials. The Court did not grant the request and plaintiffs conceded that "there is no violation in respect to any school within the City of New York and we ask no relief against the City of New York." Id. at 8.

Towards the end of the hearing, plaintiffs' counsel stated that "our basic premise is the statute on its face as construed by the Commissioner of Education is unconstitutional irrespective what happens in any school anywhere in the United States." Id. at 159. He then agreed with the Court's characterization of PEARL's argument as being "not that the statute itself is unconstitutional but that it is being unconstitutionally interpreted and applied." Id. at 60. Plaintiffs' counsel reaffirmed this position at the post-trial oral argument before the three-judge panel, P-Tr. at 17,⁵ and reiterated his view that the case was unaffected by the lack of proof that New York City's Title I program violated the Constitution. Id. at 11.

The Court rejects plaintiffs' contention that "the issue in this case is not what is actually done; the issue in this case is what is authorized by the law which we are challenging." Id. at 11-12. This assertion is directly contradicted by the admonition of the Wheeler Court, quoted above, that a federal court must not issue decisions based on hypothetical situations. Wheeler v. Barrera, supra, 417 U.S. at 427, 94 S.Ct. at 2288. In Wheeler, the Supreme Court specifically declined to rule on the constitutionality of a Title I program that provided remedial services on the premises of parochial schools because it would be "wholly inappropriate" to render an opinion "when no specific plan is before us." Id. at 426, 94 S.Ct. at 2288. Obviously, it would be highly inappropriate for this Court to reject the exhaustive evidence that has been presented on New York City's Title I program and to resolve this suit on the basis of the...