Strout v. Albanese

• Citation: 178 F.3d 57
• Decision Date: 04 February 1999
• Docket Number: No. 98-1986,98-1986
• Parties: , Elwood STROUT, et al., Plaintiffs, Appellants, v. J. Duke ALBANESE, In His Official Capacity as Commissioner, Maine Department of Education, etc., et al., Defendants, Appellees. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

178 F.3d 57 Elwood STROUT, et al., Plaintiffs, Appellants, v. J. Duke ALBANESE, In His Official Capacity as Commissioner Maine Department of Education, etc., et al Defendants, Appellees.

No. 98-1986.

United States Court of Appeals First Circuit.

Heard Feb. 4, 1999.

Decided May 27, 1999.

Vincent P. McCarthy, with whom Ann-Louise Lohr, The American Center for Law and Justice, Northeast, Brian W. Raum, American Center for Law and Justice, New York, Stephen C. Whiting, The Whiting Law Firm, P.A., Jay A. Sekulow and American Center for Law and Justice, Inc. were on brief, for appellants.

Peter J. Brann, State Solicitor, with whom Andrew Ketterer, Attorney General, and Paul Stern, Deputy Attorney General, were on brief, for appellee Commissioner, Maine Department of Education.

A. Van C. Lanckton, Craig & MacCauley, PC and Marc D. Stern on brief for American Jewish Congress, amicus curiae.

Robert H. Chanin, John M. West, Alice O'Brien, Bredhoff & Kaiser, P.L.L.C., Donald F. Fontaine, Fontaine & Beal, P.A., Steven K. Green, Ayesha N. Khan, Elliot M. Mincberg, Judith E. Schaeffer, Barbara G. Shaw, Marcus, Grygiel & Clegg, PA, Jeffrey A. Thaler, Bernstein, Shur, Sawyer & Nelson, Elizabeth J. Coleman, Steven M. Freeman, Lauren A. Levin and David Rosenberg on brief for Maine Education Association, National Education Association, Americans United for Separation of Church and State, People for the American Way Foundation, Maine Civil Liberties Union, and Anti-Defamation League of B'nai B'rith, amici curiae.

Before Torruella, Chief Judge, Campbell, Senior Circuit Judge, and Stahl, Circuit Judge.

TORRUELLA, Chief Judge.

As we embark upon resolution of the thorny questions presented by this appeal, it is appropriate that we keep in mind that "[c]onstitutional adjudication does not lend itself to the absolutes of the physical sciences or mathematics." Tilton v. Richardson, 403 U.S. 672, 678, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971). The controversy before us patently reflects this truth.

The issues raised require us to consider the sometime competing values found in the Religion Clauses of the First Amendment of the Constitution ¹--otherwise described as "the internal tension in the First Amendment between the Establishment Clause and the Free Exercise Clause." Id. at 677, 91 S.Ct. 2091. "[B]oth are cast in absolute terms, ... either of which, if expanded to a logical extreme, would tend to clash with the other." Walz v. Tax Commission, 397 U.S. 664, 668-69, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970).

BACKGROUND

Maine has enacted a statute providing schooling for those students who live in communities that do not have public education facilities because of insufficient student density. ² For these students, the state will pay grants directly to qualified private educational institutions to subsidize their schooling, provided the institutions are "non-sectarian" in nature. ³

Plaintiff-Appellants are the parents of students who are otherwise qualified to receive the benefits of this state-created subsidy, except that they have chosen to send their children to private sectarian schools. After Maine refused to fund their chosen sectarian institution, St. Dominic's Regional High School in Lewiston, Maine, the parents brought an action in the United States District Court for the District of Maine alleging numerous violations of their rights under: (1) the Establishment Clause; (2) the Equal Protection Clause; (3) the Free Exercise Clause; (4) the Due Process Clause of the Fourteenth Amendment; and (5) the Speech Clause of the First Amendment. ⁴

The district court framed the issue before it as "whether Maine is constitutionally required to extend subsidies to sectarian schools." It viewed plaintiff-appellants' arguments "in terms of free exercise claims, establishment clause claims, equal protection claims and substantive due process claims," but found "it unnecessary to address [them] separately or to analyze the various tests that have been enumerated," because "[t]he same answer is obvious for all." Concluding that although plaintiff-appellants were free to send their children to sectarian schools, "they do not have a right to require taxpayers to subsidize that choice," the district court rejected their claims and granted summary judgment in favor of defendant-appellees. This appeal followed.

Below we address seriatim each of the bases on which the plaintiffs' claim an entitlement to relief.

DISCUSSION

I. Establishment Clause

First, plaintiff-appellants argue that the statute, § 2591(2), violates the Establishment Clause because, rather than treating religion neutrally, it demonstrates a hostility toward religion by excluding otherwise eligible sectarian schools from the tuition program based solely on the religious viewpoint presented by these schools.

Although "this Nation's history has not been one of entirely sanitized separation between Church and State," Committee for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 760, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1993), and while various forms of aid to religious institutions are permissible and have been approved by the somewhat inscrutable guidelines of the Supreme Court, ⁵ there is no binding authority for the proposition that the direct payment of tuition by the state to a private sectarian school is constitutionally permissible. See id. at 780, 93 S.Ct. 2955.

A statement to the effect that "Congress shall make no law respecting the establishment of religion," U.S. Const. amend. I, is hardly equivocal language. The fact that it is the first of the several constitutional do's and don'ts contained in the Bill of Rights may not have been coincidental. Separation of church and state constituted a paramount principle and goal in the minds of some of the most influential of the Framers both by dint of historical experience, ⁶ and personal conviction. ⁷

We highlight the proposition that in some cases in which state infringement on the free exercise of religion takes place, otherwise prohibited conduct may be permitted if the state establishes an overriding societal interest. Upholding the Establishment Clause, which is aimed at avoiding an entangled church and state, is such a paramount interest. In the long run, an entanglement of the two has been shown by history to be oppressive of religious freedom. See Nyquist, 413 U.S. at 760, 93 S.Ct. 2955; Engel v. Vitale, 370 U.S. 421, 431, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962) (such a union may tend "to destroy government and to degrade religion."); Everson, 330 U.S. at 12, 67 S.Ct. 504 ("cruel persecutions were the inevitable result of government established religions."). The present case, in which direct subsidies would be paid by the state to a sectarian primary and secondary school, is such an imbroglio.

In Nyquist, New York created a two-part program to help defray the costs of educating low-income children who chose to attend private religious schools. See 413 U.S. at 762-67, 93 S.Ct. 2955. The first part of the program provided for direct money grants from the State to "qualifying" nonpublic schools to be used for the "maintenance and repair of ... school facilities and equipment to ensure the health, welfare and safety of enrolled pupils." Id. at 762, 93 S.Ct. 2955. The second part involved tuition reimbursement grants which the state gave to low-income parents of private schoolchildren (including those who attended religious schools) as partial reimbursement for their children's tuition, and limited state income tax relief for parents who did not qualify for the tuition reimbursement. See id. at 764, 93 S.Ct. 2955. The Court concluded that all three programs were invalid under the Establishment Clause because they had the primary effect of advancing religion. See id. at 774-94, 93 S.Ct. 2955. With reference to the reimbursement portion of the law, the Court stated:

There can be no question that these grants could not, consistently with the Establishment Clause, be given directly to sectarian schools, since they would suffer from the same deficiency that renders invalid the grants for maintenance and repairs. In the absence of an effective means of guaranteeing that the state aid derived from public funds will be used exclusively for secular, neutral, and nonideological purposes, it is clear from our cases that direct aid in whatever form is invalid.

Id. at 780, 91 S.Ct. 2091 (emphasis added).

This dichotomy between direct and indirect aid is a recurring theme throughout Establishment Clause litigation. Although not all cases fit neatly within this formula, and this somewhat tenuous distinction has been the subject of considerable criticism by academia, ⁸ it is the closest thing that we have to a workable bright line rule, or that perhaps is possible.

Nevertheless, one thing is certain: the Supreme Court has never permitted broad sponsorship of religious schools. In those instances in which the Court has permitted funding to flow to religious schools, it has been in the context of a targeted grant, available to a limited population, for a specific purpose. See, e.g., Agostini v. Felton, 521 U.S. 203, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (upholding a federally funded program providing supplemental, remedial instruction to disadvantaged children on a neutral basis, taught on the premises of sectarian schools by government employees); Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 113 S.Ct. 2462, 125 L.Ed.2d 1 (1993) (holding that providing a deaf student with a government-paid sign language interpreter who accompanies the student to classes in a sectarian school does not violate the Establishment Clause). "The problem, like so many problems in constitutional law, is one of degree." Meek, 421 U.S. at 359, 95 S.Ct. 1753 (citation and internal quotation marks omitted). We find no authority in the Court's jurisprudence for now extending state support of sectarian schools from beyond the class of...