Wamble v. Bell
| Decision Date | 14 December 1984 |
| Docket Number | No. 77-0254-CV-W-8.,77-0254-CV-W-8. |
| Parties | G. Hugh WAMBLE, Plaintiff, and Verline Cobbins, et al., Intervenors-Plaintiffs, v. Terrel H. BELL, Secretary of the United States Department of Education, et al., Defendants, and Dempster and Pauline Ferguson, et al., Intervenors-Defendants. |
| Court | U.S. District Court — Western District of Missouri |
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G. Hugh Wamble, Kansas City, Mo., pro se.
Lee Boothby, Berrien Springs, Mich., for intervenors-plaintiffs; William T. Smith, III, Watson, Ess, Marshall & Enggas, Kansas City, Mo., of counsel.
Linda Cromwell, U.S. Dept. of Justice, Civ. Div., Washington, D.C., Judith M. Strong, U.S. Dept. of Justice, Kansas City, Mo., for defendants.
Louis C. DeFeo, Jr., Jefferson City, Mo., Charles H. Wilson, Williams & Connolly, Washington, D.C., for intervenors-defendants.
This multi-faceted constitutional challenge to a significant federal educational program was first filed in this court in April of 1977. It has made its tortious way through three divisions and before as many judges of this court, finally coming to rest in this division in late 1981. Before assignment of the case to this division, discovery and trial preparation proceeded apace until a stay was entered by Judge Collinson on March 30, 1979, pending the outcome of a similar case, National Coalition for Public Education and Religious Liberty v. Harris, 489 F.Supp. 1248 (S.D.N.Y.1980) (). Pearl was decided on April 18, 1980, the final stay order was lifted, and extensive discovery was conducted from that time until transfer here. The court placed counsel on what was characterized as a "fast track" in late 1981 to complete discovery and trial preparation, and after four and a half years of pendency the case finally came to trial on August 2, 1982. During the next five months the court held twenty-three separate days of trial.
After trial and extensive post-trial briefing there began a series of suggestions by one party or the other that the court delay its decision in the case until the opinions in several cases pending elsewhere were handed down. The last of such cases was Felton v. Secretary, United States Dep't. of Educ., 739 F.2d 48 (1984), hearing pending, ___ U.S. ___, 105 S.Ct. 241, 83 L.Ed.2d 180 (1984),1 and it is now suggested that action by this court should be further delayed pending the Supreme Court's decision in Felton, certiorari having been granted on October 1, 1984. While that decision may very well affect the result reached here, the court is convinced that the time has come to rule and let this decision assume its proper role in this ongoing drama.
Before the court is an Establishment Clause challenge to federal legislation, Tithe I of the Elementary and Secondary Education Act of 1965, 20 U.S.C. § 2701 et seq. (hereinafter Title I), designed to provide remedial education services for public and nonpublic school children who reside in low-income areas and whose scholastic or testing records demonstrate a need for such services. This action was originally brought by Dr. Hugh Wamble, an individual taxpayer. Thirty-two other taxpayers and seven parents of public school students entitled to receive Title I assistance later were permitted to intervene as plaintiffs (hereinafter with Dr. Wamble jointly referred to as plaintiffs unless otherwise specified) against the defendants named by Dr. Wamble, to wit: the Secretary of the United States Department of Education (hereinafter USDOE or the Secretary),2 Blue Hills Home Corporation (hereinafter BHHC), the entity contracting with USDOE to provide Title I services for Missouri's nonpublic school students, and BHHC's Executive Director John P. Cole. Thirteen parents of students in religiously affiliated schools were permitted to intervene as defendants (hereinafter with the originally named defendants jointly referred to as defendants unless otherwise specified). Jurisdiction is appropriately invoked pursuant to 28 U.S.C. §§ 1331, 1391, 2201, and 2202.
Plaintiffs challenge the Secretary's decision to invoke the "bypass provision" of the Act in question, 20 U.S.C. § 3806(b), which authorizes payment of funds to an independent contractor who provides services in parochial schools in jurisdictions where the public education authority either will not or cannot administer the funds in parochial schools. Plaintiffs condemn the contractor, BHHC, as a religiously affiliated and controlled organization, seek to enjoin permanently the operation of Title I in Missouri's nonpublic schools and request a declaratory judgment that the bypass statute on its face and as administered violates the First Amendment prohibition against establishment of religion.
Specifically, this case presents two fundamental questions: (1) Does this federal statute which authorizes the payment of funds to an independent contractor with directions to that contractor to provide remedial services for educationally deprived children residing in low-income areas and attending nonpublic schools, the majority of which are church-affiliated, on its face violate the Establishment Clause of the First Amendment to the United States Constitution? (2) Assuming arguendo, that Title I is not unconstitutional on its face, does Title I as administered on the premises of Missouri's parochial schools during the school day in rooms largely devoid of religious symbols by teachers paid and supervised by this independent contractor, nevertheless violate the religious neutrality and entanglement principles enunciated in Wolman v. Walter, 433 U.S. 229, 97 S.Ct. 2593, 53 L.Ed.2d 714 (1977) and Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975)? After waiting for and studying opinions from other jurisdictions involving similar questions and upon careful review of the record made in this twenty-three day trial, this court answers the first question in the negative and the second question in the affirmative.
Congress enacted Title I of the Elementary and Secondary Education Act of 1965, Pub.L. 89-10, 79 Stat. 27 (codified as amended 20 U.S.C. § 2701 et seq.) for the express purpose of funding locally administered compensatory learning programs— remedial education to benefit all educationally deprived children residing in low-income areas. See S.Rep. No. 146, 89th Cong., 1st Sess., reprinted in 1965 United States Code Cong. and Ad.News, pp. 1446, 1450. The Secretary administers Title I at the federal level, state educational agencies (SEA) normally implement it, and local educational agencies (LEA) customarily operate and manage the program on a day-to-day basis. 20 U.S.C. § 3801 (West Supp.1982).
All students who are educationally deprived, defined as below age-level in academic performance, and who reside in a low-income area are eligible to participate in a Title I program, 20 U.S.C. §§ 2722, 3804, 3805, 3806. To receive federal funds to finance Title I programs for children in parochial schools, an SEA must file an assurance with the Secretary that a nonsectarian agency will control the funds and that the SEA will assure proper disbursement of funds through fiscal control. 20 U.S.C. § 3876(a). The related LEAs in turn file with the SEA applications describing the project and assuring the SEA that it will provide for equitable participation of all eligible children in the area regardless of whether they attend public or nonpublic schools. 20 U.S.C. § 3805(a) and (b). See also 20 U.S.C. §§ 2740; 3806(a), (b); 47 Fed.Reg. 52, 350 (1982) (to be codified at 34 C.F.R. § 200.70). Each LEA is responsible for insuring that the needs of nonpublic and public school children are met on a basis comparable in quality, scope, and opportunity, and that expenditures are equal.3 20 U.S.C. §§ 2740(a); 3806; 47 Fed.Reg. 52,350. In addition, Title I mandates that instruction supplement, not supplant, regular classroom instruction, 20 U.S.C. § 3807(b), and that "nothing in Title I or its revised version effective October 1, 1982, Chapter I, 20 U.S.C. § 3801 et seq. shall be construed to authorize the making of any payment ... for religious worship or instruction." 20 U.S.C. § 3384.
Early Title I benefits for nonpublic school children in Missouri consisted of equipment and materials without instruction while public school children received on-site remedial instruction in reading, math, and verbal arts. In Barrera v. Wheeler, 475 F.2d 1338, 1353 (8th Cir.1973), the Eighth Circuit held that the Missouri Commission of Education and the Missouri Board of Education failed to provide comparable services to both public and nonpublic school children.4 Pending appeal to the Supreme Court, the Honorable William R. Collinson of this district issued an injunction ordering the LEAs to provide comparable services to nonpublic school children— remedial instruction in the nonpublic schools by public teachers during the regular school day. During the 1973-74 and 1974-75 school years, eligible children were released from their regular classes to attend a separate Title I class, known as "pull-out,"—which supplemented rather than supplanted regular instruction.
In 1974, the Supreme Court affirmed the Eighth Circuit, holding that the services provided to the nonpublic school students "were plainly inferior, both qualitatively and quantitatively." Wheeler v. Barrera, 417 U.S. 402, 415, 94 S.Ct. 2274, 2282, 41 L.Ed.2d 159 (1974). The court declined, however, to decide whether Title I's mandate for "equitable participation" was a requirement of on-premise instruction or whether such on-premise instruction would be constitutional. Instead, it remanded the case to Judge Collinson to develop guidelines designed to assure LEA compliance in Missouri with Title I.
Later in 1974, Congress amended Title I to remedy inequities allegedly found in Missouri...
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...efforts to provide remedial educational services to students in Missouri's private schools is documented in Wamble v. Bell, 598 F.Supp. 1356, 1359-65 (W.D.Mo.1984), appeals dismissed, 473 U.S. 922, 105 S.Ct. 3549, 87 L.Ed.2d 672 (1985). Since 1976, the Department of Education has bypassed M......
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