PROTESTANTS AND OTHER AMER. UNITED, ETC. v. United States, 20270.

• Decision Date: 16 December 1970
• Docket Number: No. 20270.,20270.
• Citation: 435 F.2d 627
• Parties: PROTESTANTS AND OTHER AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE et al., Plaintiffs-Appellants, v. UNITED STATES of America et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

435 F.2d 627 (1970)

PROTESTANTS AND OTHER AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE et al., Plaintiffs-Appellants, v. UNITED STATES of America et al., Defendants-Appellees.

No. 20270.

United States Court of Appeals, Sixth Circuit.

December 16, 1970.

Franklin C. Salisbury, Washington, D. C., for appellants; Emanuel Nadlin, Dayton, Ohio, Franklin C. Salisbury, Washington, D. C., on brief.

Donald L. Horowitz, Atty., Dept. of Justice, Washington, D. C., for the United States.

Frank J. McNaughton, Columbus, Ohio, for State of Ohio.

H. Donald Hawkins, Dayton, Ohio, for City of Dayton.

William D. Ruckelshaus, Asst. Atty. Gen., Robert V. Zener, Donald L. Horowitz, Attys., Dept. of Justice, Washington, D. C., on brief for federal appellees.

Paul W. Brown, Atty. Gen. of Ohio, Frank J. McNaughton, Asst. Atty. Gen., Columbus, Ohio, on brief for John D. Herbert, Treasurer, State of Ohio, R. A. Horn, Ohio Director, Division of Federal Assistance, Jack E. Brown, Ohio Coordinator Title II, PL 89-10.

James W. Drake, City Atty., H. Donald Hawkins, Asst. City Atty., Dayton, Ohio, on brief for Robert French, Supt., Dayton Bd. of Ed.

Before WEICK, EDWARDS and PECK, Circuit Judges.

WEICK, Circuit Judge.

This appeal is from an order of the District Court granting summary judgment in favor of the defendants and dismissing the complaint, as amended.

The action in the District Court was brought under the Civil Rights Act (42 U.S.C. § 1983) to enjoin enforcement of Title II of the Elementary and Secondary Education Act of 1965, Public Law 89-10, 79 Stat. 36, 20 U.S.C. § 821-827, which authorizes federal grants for library and instructional materials for use of pupils and teachers in public and private (including parochial) schools.

Plaintiffs prayed that a three-judge court be convened, that an injunction be granted restraining enforcement of the Act, and sought a declaratory judgment that the statute is unconstitutional in violation of the Establishment Clause in the First Amendment to the Constitution of the United States; and further prayed for the return of $14,606.02 to the United States by the Treasurer of the State of Ohio and the Superintendent of the Dayton School District, which sum was alleged to have been distributed to twenty-two parochial schools in the Dayton City School District for the purchase of books and materials; and further prayed for damages in the amount of $5,000,000.

In a prior appeal, in an unreported order, we held that the plaintiffs had standing to sue on the authority of Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968).

The District Court, in a memorandum opinion and order, declined to convene a three-judge court and granted summary judgment in favor of the defendants on the ground that the issues of the case were controlled by the decision of the Supreme Court in Board of Educ. of Central School Dist. No. 1 v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968).

Where an injunction is sought to restrain the enforcement of a state or federal statute on the ground of violation of the Constitution of the United States, the District Court is required to convene a three-judge court under the provisions of either 28 U.S.C. § 2281 or § 2282, unless no substantial federal constitutional claim is presented or it is patently frivolous. Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962); Turner v. Memphis, 369 U.S. 350, 82 S.Ct. 805, 7 L.Ed.2d 762 (1962); Ex Parte Poresky, 290 U.S. 30, 31, 54 S.Ct. 3, 78 L.Ed. 152 (1933); Jones v. Branigin, 433 F.2d 576 (6th Cir. 1970).

The claim would be deemed unsubstantial if, as the District Court held, the Supreme Court had passed upon the precise question involved in the present case.

The only question, therefore, for us to decide is whether the District Court was correct in ruling that the constitutionality of the Act was resolved in Allen.

In Allen the Supreme Court upheld a state statute which authorized the lending of secular text books to children irrespective of whether they attended public or private (parochial) schools. The Court applied the test stated in School Dist. of Abington v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963):

"The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say that to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion." Id. at 222, 83 S.Ct. at 1571.

Allen followed Everson v. Board of Educ., 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), which upheld the constitutionality of a state statute providing for the free busing of school children to public as well as parochial schools.

In both of these cases the secular aid was furnished directly to the school children, who ought to be entitled to such aid irrespective of the schools they attended, whether public or parochial, the same as...