Wheeler v. Barrera – Oral Argument – January 16, 1974

Media for Wheeler v. Barrera

Audio Transcription for Opinion Announcement – June 10, 1974 in Wheeler v. Barrera

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Warren E. Burger:

We’ll hear arguments next in number 73-62, Wheeler against Barrera.

Mr. Pfeffer, you may proceed whenever you’re ready.

Let me remind you again that the electronic system is malfunctioning and that you’ll have — you have 45 minutes.

Do you want a 5-minute warning?

Leo Pfeffer:

Yes, I’d like to have a 5-minute warning.

I’m reserving 10 minutes for rebuttal.

Warren E. Burger:

I’ll indicate to you when you used —

Leo Pfeffer:

Thirty minutes.

Warren E. Burger:

Forty minutes.

Leo Pfeffer:

Thirty minutes because I’d like to reserve that 10 minutes for rebuttal.

Warren E. Burger:

Alright.

Leo Pfeffer:

Mr. Chief Justice and may it please the Court.

This is a suit brought by a group of parents in private church schools in Kansas City against the State Commissioner of Education of Missouri and the members of the State Board of Education, charging that the plaintiffs were deprived of their rights under the Elementary and Secondary Education Act of 1965.

The complaint is a rather broad ranging document, but as the case progressed, the issue became quite narrower.

The crux of the controversy revolves around a policy adopted by the State of Missouri that to assign publicly employed teachers to perform their educational services in private and specifically religious schools, would be contrary to the law of the State of Missouri and, that this law was applicable to Title I teachers as well.

The defense was that the Act does not mandate, does not require assignment of Title I teachers to teach in church schools and, if it did, that to that extent the Act is contrary to the First Amendment of the United States Constitution.

The District Court ruled in favor of the defendants on the ground that the statute did not mandate such assignments, and stated further that if it did, it would raise grave constitutional issues under the Establishment Clause.

The Court of Appeals reversed two-to-one with Judge Stevenson’s dissent and remanded the case to the District Court.

On the basis of that remand, the District Court entered a final judgment, the critical sentence of which is found on page a46 of the petition for certiorari which says defendants are enjoined from disapproving any publication of the local education agency for the grant of the Federal Title I ESCA Funds on the basis that such publication includes the use of Title I personnel on private school premises during the regular school of hours.

Let’s say, unlimited instruction that forbids refusal to approve any plan which requires assignment —

William O. Douglas:

What part of the District Court’s order?

Leo Pfeffer:

This is — the District Court order, a remand, it’s called injunction and judgment issued in compliance with mandate of the Court of Appeals.

It’s found on our petition for certiorari, page A45, but this sentence is found on page A46, the first paragraph, which is a critical issue before this Court.

Now, the Court of Appeals opinion is somewhat unclear.

And, Judge Stevenson interpreted it to mean, as the District Court interpreted it to mean and as the plaintiffs interpreted to mean, a file conclusive determination that the State of Missouri may not refuse, all things being equal, may not refuse, to assign publicly employed teachers to teach in religious schools.

Now —

William O. Douglas:

The trouble is that your petition for certiorari doesn’t have 846 page.

Warren E. Burger:

A —

Leo Pfeffer:

A46.

William O. Douglas:

A?

Leo Pfeffer:

A [Attempt to Laughter] Your Honor, I wouldn’t burden this Court with an 846 petition for certiorari.

Not yet.

Leo Pfeffer:

No, [Attempt to Laughter] particularly with the complaints of this Court that it’s overburden —

William O. Douglas:

Paragraph two?

Leo Pfeffer:

It’s the first paragraph on the page.

It’s the last sentence of the first paragraph, before number two.

It’s the part — the paragraph would be on our preceding page.

Warren E. Burger:

Well, Mr. Pfeffer, don’t we have something of a problem in that we don’t know what the District Court’s order is going to be ultimately?

Leo Pfeffer:

Well, this is the —

Warren E. Burger:

The plan?

Leo Pfeffer:

This is the final District Court’s order.

This injunction —

Warren E. Burger:

Well, but the plan has not been developed, has it?

Leo Pfeffer:

The plan hasn’t, but no plan can’t — well, can’t happen, yes.

As of now, yes, because of this injunction, because of this injunction.

Now, we sought to get a stay from the District Court and the District Court refused to stay and we apply to the Court of Appeals for a stay.

The Court of Appeals didn’t act until it was ready for arguments here.

But, as of now, as of now the situation is subject to action by this Court that public school teachers, Title I teachers, are assigned into parochial schools to do exactly the same type of teaching that the record shows —

Warren E. Burger:

You’re telling us facts now subsequent to the entry of the order that’s under review here?

Leo Pfeffer:

In pursuant to the mandate of that order, pursuant to the mandate of the order.

We interpret the order as an injunction forbidding us, and this is the issue before the Court, forbidding us to refuse to assign teachers to teach at parochial schools.

This is the injunction which is — we’re operating on.

And, in order to make sure that this is before the Court, when we filed our petition for certiorari, we filed it with a two-pronged petition.

We filed a petition for certiorari to review the judgment of the Court of Appeals, but we also had the alternative to review the order and judgment of the District Court ordering us not to refuse a program for sending paroch — public school teachers into parochial schools.

The fact situation of this case, as veiled on the trial and as it developed, was just one narrow thing.

We have here, in Missouri as in many states that Title I Program is limited to teaching, reading, and arithmetic, occasionally, some other similar subjects like in summer schools shop or something, but basically, reading and arithmetic.

And, the record shows what the Title I is.

If we look at page 43 of my brief, we find the — a typical application, a typical application for Title I Fund by a local agency which is pretty much the same and it gives a whole fact to this.

A reading specialist that’s paragraph 3.

A reading specialist who assists classroom teachers in daily development reading, instruction that provide corrective or remedial reading instruction of groups of 4-10 on a regularly scheduled basis, program reading text with a variety of supplementary materials combined with pupils’ creative writing and teacher-made materials will be utilized to extent as teaching kit.

Leo Pfeffer:

This is a typical thing which is done in all this schools, private and public and this is the crux.

This is what we’re contending.

We’re not required to do under that statute and if we are, the statute, to that extent, violates the Establishment Clause and that is a dual question before this Court.

Now, I’ll address myself to the statutory instruction and I think, statutory interpretation.

I think the first thing to do, of course, is to look at the text of the statute, that is found on page 16 of my brief.

It says that a state agency in — shall not approve any of these local agencies project unless it’s determined, that to the extent consistent with a number of educationally deprived children in the school district of the local education agency, while rolled private elementary and secondary school, such agency has made provision for including special educational service and arrangements such as dual enrollment, educational radio and television and mobile education services and equipment where such children can participate.

Now, I should like to call the Court’s attention to the examples given in the statute.

The first one which is critical, dual enrollment; what does dual enrollment mean?

It’s stated in the regulations, it explains what it is.

Dual enrollment, sometimes called shared time is when pupils in a private school, registered in a private school, go into the public school for some, but not all of their courses.

This Act provides, it is permissible to meet the requirements of the statute to take pupils from the private schools and bring them into the public schools.

Clearly, this is just the opposite of sending the school teacher into the private school.

So that, the Act on its face, as giving an example, this is not the only sin committed, there are just such acts, as one example of what is permissible which would meet the requirement of the Act, is to send the children into the public school rather than the sending of the public school teacher into the private school.

So that, it is clear without further that the statute does not mandate, but apparently, the Court of Appeals mandates and the District Court mandates, you must send them into the parochial school if you sent them into the public school.

Secondly, the situation in Missouri, where the law is interpreted by the State Board of Education is not to permit this, was called to the attention of the HEW very early in the letter specifically addressed to this problem, sent to the Assistant Commissioner of Education that we have the response of the Commissioner of Education on page 19 and 20 which, in the light, this is in 1967, in the light of the specific Missouri situation said “no, it’s not required.”

The statute does not mandate any particular form so long as you provide services for the students.

Then, we have another, there are many more, but another indicia, in the handbook of the HEW or Commissioner of Education, which again recognizes, and I call this Court’s attention to that paragraph which I’ve quoted on page 22 of our brief in which refers again to the situation, it’s called logistics on page 22.

It says not the least of difficulties in including private school children in Title I activities, are the problem, schedule, transportation, hiring and assignment of personnel, purchasing inventory equipment, and arrangements for space.

Then, in those states in which public school personnel may not perform service on private premises, the difficulties are compounded.

Then it says no easy solution to the logistical problems.

If they do their best, with good faith, you can get it.

But this, again, is a recognition that there is a problem, and a logistical problem.

If the Court of Appeals was correct that you must send them in, then there’s no problem.

The answer is there’s no problem because you have to send them in.

Finally, and there’s more in my brief and I don’t want to extend too much on it, but finally, I want to call the Court’s attention to something which appears in the government’s brief, on page 19 of the government’s brief, in which a House Committee — this is after the Act was in operation for a year.

On page 19, the paragraph at the beginning of page 18, but the critical part of it is that the State Boards are given wide discretion to the form of program they will approve and the — towards the end, in order to assure that such programs and project could operate as part of the public school system in conformance with local and state legal and constitutional requirements.

William H. Rehnquist:

Well, Mr. Pfeffer, the Eighth Circuit, as I read their opinion, said that there was some conflict in Missouri law that the Attorney General disagreed with the Superintendent and they ended up saying that the kind of injunction Judge Collinson entered was in conformity with Missouri law.

Certainly, we’re not going to second guess the Eight Circuit on what the law is?

Leo Pfeffer:

No, the answer to that, Mr. Justice Rehnquist, is that I don’t believe the Court of Appeals found it.

The Court of Appeals found it as the Court of Appeals have previously found in the earliest — earlier proceeding where the District Court had sought dismissal of complaint on the grounds that there was an unresolved question of state law.

Leo Pfeffer:

The Court of Appeals reversed saying it’s not — it’s irrelevant what the state law is.

The question is what the federal law is.

The thrust, as I understand it, of the Court of Appeals opinion that state law is irrelevant.

This is a federal law and, therefore, it is to be interpreted and applied according to federal statutes.

William H. Rehnquist:

Well, if you turn to a20 and a21 of your petition for a writ of certiorari, if you look at the paragraph beginning at the bottom of page 80, plaintiffs discount the applicability of state law and this is the majority opinion.

Then, Judge Lei goes on to say on page 81 this approach, discounting the applicability of state law, substantially ignores the legislative history of Title I which establishes that state policy and law shall govern the administration of these programs.

So, I don’t agree with your reading of the Eighth Circuit opinion at all.

Leo Pfeffer:

I — my only response to that is that accomplishes what?

The District Court so interpreted and I think Judge Stevens so interpreted, and it is the only — and, independent of that, I address that for Court, independent of that, the legislative history and the constructive interpretation by HEW over the years is that it is not the State Attorney General who gives an advisory opinion would determine state law, but that under the the SEA, the responsibility for interpreting and applying the Act, and that’s cited in the brief, rests with the State Education Agency and it is not, indeed as I’ve indicated, from the fact that while the Congress was in session it had this situation in Missouri in mind, and the Commission of Education responding to Senator Long then said “we know that Missouri law doesn’t forbid it.”

All the HEW’s writings, including the — it’s program file and all things are recognized —

William H. Rehnquist:

But the Supreme Court of Missouri is the ultimate arbiter of Missouri law, I take it.

And, certainly, the Eighth Circuit here addressed itself to a holding of the Supreme Court of Missouri and said “on balance, we conclude the Missouri law does permit.”

Leo Pfeffer:

I don’t think so, Your Honor.

I think if that were the case, if that were the case it would be that I think — I don’t think we would have a case because we believe this is not all the discretion which the State Board of Education has, that it has other discretions as well.

But it seems to me and it seems to everybody, that this decision did not go on the fact that the State Board of Education was unable to interpret its own law.

The Supreme Court decision of the State of Missouri was interpreted one way by a State Board of Education and another way by the State Attorney General.

We, initially, had the same — took the same position which you took, Mr. Justice Rehnquist.

We asked that the District Court abstain until the state Missouri — the Supreme Court of the State of Missouri resolved that question.

The District Court said “no, because that’s irrelevant.”

What the state does is irrelevant.

This is a federal law dealing with federal funds and, therefore, it’s to be applied by federal law.

That’s why we’re here.

We want the — if we would have been directed and indeed the plaintiffs still have the option of the mandamus in the State Courts.

Now, so much for the —

Warren E. Burger:

Before you — before you leave that, let me take you back to your brief, page 22, where you had discussed the matter of the regulation on logistics or the handbook, do you have that point?

Leo Pfeffer:

Yes —

Warren E. Burger:

I take it, that last paragraph on the page is your brief now, your statement.

If the Court of Appeals was correct, it was a very easy solution to the logistical problems; assign the personnel to perform the Title I service on private premises.

Now, that’s a little cryptic.

I’m not sure I follow.

Warren E. Burger:

Do you mean you’d have no objection to it?

Leo Pfeffer:

No —

Warren E. Burger:

The problem, if it were done on private premises —

Leo Pfeffer:

No, Mr. Chief Justice.

What I am trying to point out in this, this is an administrative interpretation of the statute.

And, the administrative interpretation says there are logistic problems in various things.

One of the logistic problems arises when state law forbids to assign public personnel to private schools.

Now, if the Court of Appeals is correct that state law is irrelevant, then the HEW would have said there’s no logistic problem.

Simply, the law requires that whatever the state law is, the federal statute, that you must decide to serve in private schools.

Then no logistics at all, the fact that they said in the second paragraph that there are no easy solutions, and however, when the leader solution allows several options, then good faith will work something up.

But, this is a recognition by HEW that you are not mandated to send public school teachers into the private school even to avoid logistic problems.

I would like to devote the rest of my time here up to the amount I’m reserving, except for that I’m reserving for rebuttal, to the constitutional issue.

In the event we are incorrect, in the event that this Court decides that where certain services are provided for educational services by Title I teachers, the Title I teachers must go into the church schools to perform those services.

We would suggest that, to that extent, the statute violates the Establishment Clause of the First Amendment.

Now in saying that, it’s important to know that the issue before this Court in this case it’s quite narrow, we are not challenging other Title I services which are permitted under the statute, including those specifically stated in the statute as mobile equipment, nor those which HEW has, in its interpretation of the application of the law, held to be permissible such as breakfasts or medical care.

We do not challenge sending the doctor in or a hot breakfast with cooks to prepare it.

We are challenging only about the basic.

And, the record shows basically the same type of teaching of regular subjects, most prominently reading and arithmetic, which goes into the public schools except what?

Except smaller classes and specially trained or teachers given a special additional training of task force how to handle students who are below the norm.

And that, too, appears in the typical application.

Again, I ask the Court to turn to page 43 of my brief which is typical application, item four, degree of education deprivation necessary for participation.

Below norm on standardized test by three months for primary school, six months for intermediate, nine months for Grade Seven, if a student is below those norms, he is put into a smaller class, and that’s indicated, and he’s given a teacher and the teachers will be given a crash course under HEW sponsorship on how to handle that case.

Now, these students who are below norm are not students who are, psychologically, problems.

They are ordinary students who for variety reasons.

The best example is the one which the Court of Appeals gave in its opinion on page — which I cite on page a45, footnote 13 of the petition for certiorari.

A45, no, a15, I’m sorry, a15 on the footnote.

It says the record discloses that Our Lady of the American School, a parochial school in Kansas City, has a student body that is 98% excellent with approximately 175 students eligible for Title I.

Children are confronted with a language and cultural problem.

Now, that’s all I want to read from the brief.

What do we have?

Leo Pfeffer:

We have students who, because they’re foreign-born, are slower than the average.

But, the instruction given is basically the same thing as the instructions given in other students.

Now, it’s our contention that in that context this case is indistinguishable from Lemon against Kurtzman, Earley against DiCenso, and Sanders against Johnson, where this Court said you cannot finance a secular instruction in church schools.

What is the difference? The education is basically the same, ordinary secular education and even in the Lemon against Kurtzman, they chose these secular courses.

What is the only difference?

The only difference between this situation and the Lemon, DiCenso, Johnson cases is that, in this situation the teachers are paid directly and hired directly by the public agency.

In the other cases, the teachers are hired originally by the parochial schools but paid in whole and part out of public funds.

Warren E. Burger:

And you don’t think that’s an important difference?

Leo Pfeffer:

No, we don’t think it’s a critical difference.

We say this because of a number of reasons.

We say that in sum that the potential for comfort, and I’m reading now from the Levitt decision which this Court decided last year and quoting from the Lemon decision, “the potential for conflict in here, in this situation, just as it did in the Levitt and the DiCenso, Lemon case.

We show, we argue, and we show from the record that, as it operates, it is perfectly permissible, for example, it is perfectly permissible for the parochial school to take one of its teachers or more, divorce them, sever them from the payroll and assign them as a Title I teacher.

They get special training and they come back only to stay in the same schools.

They have now been transferred simply from one payroll to another.

They do the same thing except they are now under public payroll.

Moreover, and this is the — and this is interesting that they may even be employed simultaneously by both.

If you — and the regulations which I quote on page 5 of my brief, page 5 in the brief says as follows: provisions for Section — this is from the regulations CFR Section 116, “Provision for special education services for educationally deprived children enrolled in private schools shall not include the paying of salaries for teachers or other employees of private schools.”

Now, the next is critical, “except for services performed outside their regular hours of duty and under public supervision and control.”

In other words, what this allows is for a parochial school teacher to teach under the payroll of the parochial school for part time and under the payroll of the Title I, the other part of the title, so long as it is beyond the regular hours of the parochial school teacher and a parochial school teacher can be hired from 9-3 or from 9-1 or 9-12.

Moreover, the — while you’re looking, you have the severe problem of the fact that a church school is a church school and it doesn’t become something else when a public school, publicly employed teacher enters.

That is why the courts which have been faced with this issue, with respect to state law, and the District Court in the case which I cite, (Inaudible) against Oaktree, the District Court in the First Circuit said — which involved a state statute, a state statute which says that public school, publicly appointed teachers out of state funds may teach in parochial schools, they declared not unconstitutional and, I commend to this Court, the Court’s opinion, there was a thorough discussion of it indicating that the potential for — the law of the constitution, as interpreted by this Court, in Nyquist, in Levitt, in Lemon, DiCenso, and each of the cases said that in a situation such as this it is an obligation to make certain, to make certain that the publicly employed teacher does not use his position for the advancement of religion.

The — this Court said in Nyquist, and I quote it on page 30 referring to the DiCenso case, about page 30, the role on legislature has not and could not provide state aid on the basis of a mere assumption that secular teachers under religious discipline can avoid conflicts.

The state and this is emphasized, the emphasis is not mine, the emphasis of this Court in a Nyquist case referring to the DiCenso case, the state must be certain, given the religious cause, that subsidized teachers do not inculcate religion.

And the Court found there, in both, Nyquist, Levitt, DiCenso, Lemon, that there was no such certainty.

There is no such certainty in this case.

All there is, is a statement in the rule, in the regulations that the Title I teachers may not teach religion.

But, that alone — that was also the case in each one of these cases.

All the state statutes struck down in DiCenso, in Levitt, in Lemon, in Johnson.

All those had the same —

Warren E. Burger:

In Lemon and DiCenso, the “no public authority” could dismiss the teacher for violating that– such an instruction.

Warren E. Burger:

Isn’t that true, because the teachers were not under the supervision and control of the Public Board of Education?

Leo Pfeffer:

The sanction was there, that the funds could be and would be turned off.

And, those funds went to the teacher himself.

There was a clear sanction because — for example, in DiCenso the record showed that a teacher who wanted to get public funds had to take — write a written promise of kind that he or she would not teach any religion and that violation of that meant, as far as the law is concerned, dismissal to the extent of being paid out of public funds.

Finally —

Warren E. Burger:

Mr. Pfeffer, you’re down within 3 minutes of your reservation of 10.

Leo Pfeffer:

Alright, thank you.

Now, finally, the — this Court in Walz, the tax exemption case, and then the subsequent cases added a new dimension to the test for impermissibility under the Establishment Clause.

Previously, on the exempt case, it was a forbidding of any law which either has as its purpose the advancement of religion whose primary effect is the advancement of religion.

And, we do not assert here that the purpose of this law is to advance religion, we say its effect is.

But, in Walz and then in Lemon cases, this Court added intervention, that even if those two qualifications was satisfied, if the result of the law is entanglement of church and state, that too is unconstitutional.

It was a new dimension, but goes back, way back at least as far as the cases in which the Court said it could not intervene and try church disputes going back to the Civil War period.

But this entanglement, which is one of the foundations of the statute, is inevitable in this situation.

You must, in order to assure that teachers who work in a church school on at least partially the supervision, and the regulation shows that, under partial supervision of the school authorities do not, because of their religious commitment, use their office to advance religion.

It must be put under continual surveillance.

It must be subject to continual policing.

This surveillance is exactly what the court tells, forbid —

Warren E. Burger:

Your time is up now in chief, Mr. Pfeffer.

Leo Pfeffer:

Thank you, Your Honor.

Thomas N. Sullivan:

Mr. Chief Justice and may it please the Court.

Warren E. Burger:

Mr. Sullivan.

Thomas N. Sullivan:

Let me try to outline our position in this case as it has been from the time we filed the complaint.

We say that the Title I of the Elementary and Secondary Education Act of 1965 provided that comparable educational services for educationally deprived children relating to special educational benefits must be provided on the basis consistent with their number and the extent of their educational deprivation.

We say that this had to be done on a comparable basis across the board for public and non-public children alike.

We say that, in carrying this out, certain regulations were promulgated by the Office of Education.

We say that this is a federal law, funded entirely by federal funds.

It’s a federal law.

There’s no matching funds, no state funds of any kind.

We say that in Missouri the State Board of Education, very early in the game, took steps to preclude either dual enrollment or the mobile educational service of sending the teacher in — the public school teacher into the private school.

We say that in almost every situation, when the state board precluded those two methods of participation in the — by the private school, the private school children could not, did not, have not received their fair equitable, comparable participation in Title I benefits.

Thomas N. Sullivan:

We say that in Missouri we recognize that there’s a compulsory attendance statute that the Court of Appeals referred to, that the Supreme Court of Missouri has interpreted as to preclude dual enrollment or shared time.

We say that if we’re going to accommodate that decision and that state law as the Court of Appeals suggests, the only thing and the only other way that we can receive comparable educational benefits in the private — for the private school children is by sending the public school Title I teacher into the private school to teach the educationally deprived qualified eligible non-public school children and to give them the Title I benefits in that fashion.

We say generally that this is constitutional for a number of reasons.

We say that the regulations in the Act have made a provision that would make it beyond and question, it seems to me, affected by the Establishment Clause and we say that the relief directed by the Court of Appeals and implemented by the injunction in the order of the District Court is a proper, lawful, and clearly warranted holding of the Court of Appeals.

The —

Byron R. White:

Well, dual enrollment would never be sufficient —

Thomas N. Sullivan:

Sir?

Byron R. White:

Dual enrollment where the classes on the private — on the public school property would never be sufficient.

Thomas N. Sullivan:

Not in Missouri, Mr. Justice, because —

Byron R. White:

No, under the Act.

Forget Missouri.

Thomas N. Sullivan:

I think it could be, certainly.

Byron R. White:

Well, by definition, the class is carried on on public school property and I thought the Court of Appeals said that if these services are furnished by teachers on public school property during school hours, it must be furnished on the — be made available on private school property during school hours.

Thomas N. Sullivan:

That’s right, Mr. Justice, with reference to Missouri —

Byron R. White:

Well, dual enrollment program would never be sufficient?

Thomas N. Sullivan:

It would be in Missouri.

That order —

Byron R. White:

Forget Missouri, they said the Act required it.

Thomas N. Sullivan:

No, Mr. Justice.

They did not say that.

They said that the Act did not —

Byron R. White:

I’ll put it to you this way.

If they did say it, they were wrong.

Is that it?

Thomas N. Sullivan:

But they did say they were wrong.

Byron R. White:

Okay.

Thomas N. Sullivan:

They said the Act–

Byron R. White:

Okay, that’s all I need.

Thomas N. Sullivan:

They said the Act did not provide any particular method, and I think I can quote that, they said the Act could not provide any particular — the Court of Appeals said “we further observe that no particular program or service is mandatory under the Act.”

They took that, in that part of their opinion, they analyzed the holding the statute and the holding of the Missouri Supreme Court and they said that, in Missouri, there will not be shared time, there will not be dual enrollment.

Thomas N. Sullivan:

We’re going to accommodate state law in that respect.

They found no such law with respect to sending public school teachers into public schools of Missouri.

So, accordingly —

Byron R. White:

Let’s put state law aside for the moment.

Did the Court of Appeals construe the Federal Act as requiring, because it required comparable training?

Did it construe the Federal Act as meaning that if certain programs are carried on in public schools during school hours, that comparable programs must be carried on — be made available to the private school?

Thomas N. Sullivan:

It construed the Act that way, but only in the sense and in the background of the evidence and facts presented to it.

Byron R. White:

Well that’s alright, but nevertheless, as I understand it, that the local educational agency in Missouri, if it’s going to furnish a program on public school property, must furnish a like program on private school property.

Thomas N. Sullivan:

In Missouri?

That’s right, Mr. Justice.

Byron R. White:

Well, it would be true anywhere, wouldn’t it?

Thomas N. Sullivan:

No, Mr. Justice.

Byron R. White:

Well, they — at least they construed the Act in this case to require that?

Thomas N. Sullivan:

They did, but as I say, only in the light of the evidence and the background that was presented to them in this case.

William J. Brennan, Jr.:

But only in the light, I thought you said was the settlement of the Missouri law that has an alternative, dual enrollment, was as a matter of state law prohibited.

Thomas N. Sullivan:

That’s right, Mr. Justice.

William J. Brennan, Jr.:

And it’s based on that consideration that the statute was applied the way it was?

Thomas N. Sullivan:

That’s right.

Based on that consideration –

William J. Brennan, Jr.:

Yes.

Thomas N. Sullivan:

— and the further element inherent in the Court of Appeals opinion and in the injunction that it only applies or the Title I benefits are rendered on — during regular school hours on public school premises.

Now, there are at least one and perhaps more local educational agencies, that is the school districts as we used this term, in Missouri, due to their size or due to their nature, do one of two other things.

There’s one —

William J. Brennan, Jr.:

As to hours?

Thomas N. Sullivan:

There’s one that has no Title I grant and they won’t request it for reasons of their own.

They’re a well-funded school district.

They won’t request it and they haven’t and, that’s regardless of how many educationally deprived or in the private school there, in that school district, they just–

William J. Brennan, Jr.:

They take care of the problem themselves.

Thomas N. Sullivan:

That’s right and the eligible or otherwise eligible children in private schools, they have no right under the Act to request —

William J. Brennan, Jr.:

Well, are there any school districts that have after hours –?

Thomas N. Sullivan:

One or two, yes.

William J. Brennan, Jr.:

Yes.

Thomas N. Sullivan:

Yes, and they have it.

The entire program, it’s either after hours or in the summer time.

There are smaller districts where those programs seem to at least, I’m not an educator but it seems, as I understand it, they work in those school districts.

I think, though, it is clear and a court, the District Court in its injunction and the Court of Appeals, excludes that.

They don’t say that you have private services in private schools for educations for our children across the state.

They say all in one is provided in the public school in Missouri in light of the compulsory tenants there.

Now —

William J. Brennan, Jr.:

So this injunction, anyway, applies only to the school districts we have involved here, is that it?

Thomas N. Sullivan:

It only applies to State Board of Education.

William J. Brennan, Jr.:

Yes.

Thomas N. Sullivan:

And that was the only — and the commissioner.

Those were the only defendants on the case.

Those were the only ones sued.

The — that is the first section of the petitioner’s brief and if that is the meaning of it, of course, that — if they’re saying that the Act does not mandate assignment of publicly employed teachers in — to teach in religious schools during the regular school hours, if they’re saying that the Act does not verbally or literally say that you must send in public school teachers to teach in the non-public schools for educationally deprived children, we, of course — that’s their own windmill that they’re charging.

The Court of Appeals never said that and I’ve never said that and our complaint never said that.

The Court of Appeals said just the opposite really.

They — the Court of Appeals said that, as I mentioned before, it’s on page a26 of the petition for writ of certiorari on page 1354 of the F 2nd Citation.

The Court of Appeals says “we further observe that no particular program or service is mandatory under the Act.”

And that, of course, is what the Congress intended and that’s what the United States Commissioner of Office of Education intended.

They presented outlines and methods, but no particular service is mandatory.

Then, they went on to say, but it granted these other conditions.

In Missouri, they must send in Title I publicly employed Title school — Title I teachers into the private schools.

And that, of course, is further subject to the regulation that they can teach of course special educational subjects for eligible educationally deprived children under this essentially Welfare Act, it seems to me.

But, furthermore, they cannot teach any course which is already being taught in the private school and the regulation clearly provides for this.

So it’s still a very narrow situation.

William H. Rehnquist:

Mr. Sullivan, why shouldn’t the District Court have abstained here if, as Mr. Pfeffer said that the petitioner’s requested him to do, if there’s a significant undecided question of Missouri law involved?

Thomas N. Sullivan:

Well, he should not have abstained because we were seeking relief under the Federal Acts.

William H. Rehnquist:

But the Court of Appeals itself which ended up granting you relief was able to do so only after it had resolved what it conceded to be an important and undecided question of Missouri law?

Thomas N. Sullivan:

He did but he — well, let me withdraw that.

In the first instance, he did abstain and he also held that, there, we had an exhausted macerated remedies.

And, we had to take that to the Eighth Circuit.

And, of course, that was reversed by the Eighth Circuit because in the earlier opinion they said this is not a case for abstention.

William H. Rehnquist:

Well but —

Thomas N. Sullivan:

Chief Judge — excuse me.

William H. Rehnquist:

Why was it not a case —

Thomas N. Sullivan:

Because —

William H. Rehnquist:

— for the abstention?

Thomas N. Sullivan:

Because these youngsters were seeking their federally established rights.

William H. Rehnquist:

Well, but that just begs the question, I think.

If the Court of Appeals in the Eighth Circuit conceded in its opinion that there was an important question of Missouri law involved, it went ahead and decided that question.

So, in its view and the view on which you prevailed, it wasn’t just a federal right, you had to prove a question of Missouri law too?

Thomas N. Sullivan:

Well, we approve the question of Missouri law, but I still think the basic question was always federal under Title I the Title — our rights under the Title I Act.

Now, on the abstention cases and the way the Eight Circuit Court of Appeals decided those — this case, under the abstention cases, never felt that I can recall what the federal statute — it was first contrasting a state law with the federal constitution and —

William J. Brennan, Jr.:

Well, Mr. Sullivan, suppose there had been a decision of the Supreme Court of Missouri reaching a contrary result on this issue of state law. At the time this case got to the Court of Appeals, reaching a different decision on state law than the Court of Appeals came to, do you think —

Byron R. White:

Namely, that —

William J. Brennan, Jr.:

That dual —

Byron R. White:

Enrollment was permissible?

William J. Brennan, Jr.:

— was permissible.

Now, if there had — if that had been the state of the Missouri law, and this case it was in the Court of Appeals.

Now, do you suppose the Court of Appeals would come out with the interpretation of the federal statute than it did?

Thomas N. Sullivan:

No, they would’ve said any one is alright, but —

William J. Brennan, Jr.:

We wouldn’t have this case?

Thomas N. Sullivan:

I still think we would’ve had the same position on the part of the State Board of Education.

I don’t think that the decision of the Court would have meant anything to them.

I still think they would have denied all the rights to these private school children.

As they say in their brief —

William J. Brennan, Jr.:

You mean you think if the Missouri Supreme Court had said that dual enrollment was a proper — was proper under the educational law of Missouri, that the State Board of Education would have ignored that?

Thomas N. Sullivan:

The State Board says in their own brief, and particularly in their reply brief, that it is the State Department of Education that determines what the relevant state law is and they’re the ones that —

William J. Brennan, Jr.:

Even if Missouri Supreme Court —

Thomas N. Sullivan:

I think so.

I mean, that’s what they say in their reply brief.

They say they determined what the applicable state law is.

Warren E. Burger:

Let’s assume what Mr. Justice Brennan just suggested to you, then your position is that merely it would’ve widen the options of available to get this remedial training to the students?

Thomas N. Sullivan:

I would’ve hope that dual enrollment would have been– provisions would’ve been made for dual enrollment.

I would’ve hoped that the children could’ve participated and received their genuine opportunities in the language of the guidelines to participate in comparable programs.

I would’ve hoped that was the case if dual enrollment was included in this one.

Byron R. White:

But the injunction that would’ve been entered was cease disapproving any program that provides either for dual enrollment or furnishing on private —

Thomas N. Sullivan:

I beg your pardon, Mr. Justice?

Byron R. White:

Well, the injunction that was entered here, that was order entered by the Court of Appeals ordered the state agency to quit disapproving programs or that suggested furnishing services on private school property.

Thomas N. Sullivan:

Yes.

Byron R. White:

Now, the decision of the Supreme Court of Missouri went the other way.

The Court of Appeals’ injunction would simply as the Chief Justice widened the options.

Thomas N. Sullivan:

He — with respect to dual enrollment?

Byron R. White:

Yes.

Thomas N. Sullivan:

Well, I don’t — if there was a — if dual enrollment was available, I mean, that would’ve been a maybe a little more cumbersome and awkward but certainly had been a valid way to — for these children to receive their educational benefits and I would hope that it would’ve been done. It would’ve been carried out in the programs and projects.

William H. Rehnquist:

Well, Mr. Sullivan, certainly what I had conceived to be the undecided point of Missouri law was what the Court of Appeals refers to at page a20 of the petition for certiorari where they say it’s conceivable that, under Missouri law, the use of all funds might have been prohibited.

So, it isn’t just a question of — that the Supreme Court of Missouri might have said dual enrollment is okay.

They might have said neither of these is okay.

And as I read the Court of Appeals, their opinion says if that had been the Missouri law, they would not have issued the injunction which they issued here.

So, although if the Chief Justice’s hypothesis is right and the Missouri Supreme Court had said what he said, the options would’ve been broadened.

It’s conceivable that the undecided point of Missouri law that all funds are barred from this kind of a thing might have gone the other way, and then you would’ve gotten no relief I would think.

Thomas N. Sullivan:

Well, Mr. — Judge Lei in the majority opinion said he hypothesized a situation, if this is I think an answer, that on page — I’m looking at the slip sheet 23, a23 in the Appendix.

He says state law must be accommodated, but he says suppose Missouri passed a law that prevented it just this, that no textbook, school books, Title I aid, any other BSA aid, federal milk program in the State of Missouri shall be prevented to go into a private school premises nor shall there be dual enrollment.

Warren E. Burger:

The state would forfeit all its right under Title I.

Thomas N. Sullivan:

There’d be no Title I.

That’s right Mr. Chief Justice.

That’s exactly right.

Byron R. White:

Well, that’s the state constitutional matter, isn’t it?

Byron R. White:

It would be an issue under the state constitution as to whether this Missouri law barred all of these programs?

Thomas N. Sullivan:

Yes, and we have to assume the existence of such a law or statute, which there is none.

They don’t profess that there’s a constitutional article in the State of Missouri which says, generally, that any federal program can be — will be accommodated in Missouri and that’s part of Missouri constitution cited by Judge Lei towards the latter part of his opinion.

And, that was —

William J. Brennan, Jr.:

That was the one money and property may also be received from the United States and be redistributed together with public money of this state.

Is that the one, Missouri constitutional brief?

Thomas N. Sullivan:

Missouri constitutional amendment —

William J. Brennan, Jr.:

Section 38a.

Thomas N. Sullivan:

Article III Section 38?

William J. Brennan, Jr.:

Yes.

Thomas N. Sullivan:

And so, I think we’ve obviated that situation.

But, again, if there was such a law, if they just block everything, or attempt to block it by statute, as Judge Lei says, assuming that the equal protection problem would be overcome, there could be no Title I.

Byron R. White:

But the Wheeler decision that barred dual enrollment was a statutory construction matter, wasn’t it?

Thomas N. Sullivan:

Yes, it was, Mr. Justice.

Byron R. White:

It was a matter of saying that the state’s Compulsory Attendance Laws required —

Thomas N. Sullivan:

The child should stay in his own school for —

Byron R. White:

Stay in his own school.

Thomas N. Sullivan:

So many hours a day and —

Byron R. White:

And the same would be in another different question as to whether a public school teacher could be sent into a private school.

Thomas N. Sullivan:

That wasn’t included in that case.

It was included —

Byron R. White:

I understand, I understand that.

Thomas N. Sullivan:

The only one that was included in that — there was a mention in that case that public school teachers employed a virtue of trust on it in the opinion, but for public school teachers employed out of Missouri public school fund to teach in public schools.

Byron R. White:

But the —

Thomas N. Sullivan:

They can’t be sent to private schools.

Byron R. White:

But if there were a case in Missouri about sending public school teachers into private schools, the argument would be based on, what, the Missouri constitution?

Thomas N. Sullivan:

The fiscal elements of Missouri constitution.

And, I think that was in that same case, but only the fiscal elements.

There’s no question — we are the first in the school district of — First Amendment or anything else.

They say when you’re paying a public school teacher out of public school funds, he must be used for public school purposes and you can’t send him to a private school.

Thomas N. Sullivan:

The fiscal part of the constitution —

Byron R. White:

But it still would be a constitutional construction problem?

Thomas N. Sullivan:

Yes, there’s certainly no statute that affects it in any degree that I know of, except the one — maybe some statute on public school funds.

But, as I say, the opinion of the Attorney General certainly was that there were — on which the handbook says — points out in the handbook of the Office of Education, the opinion of the Attorney General was in fact that there was something wrong with sending a teacher into the private school.

And that constitutional provision that was referred to that Mr. Justice read a portion of, all of those things were what prompted and in the equities that were consistently perpetrated in this Act against private school children, educationally deprived private school children in Missouri, for these eight years or seven years under the Act, all of those things were what prompted the Court of Appeals to issue its — frame its opinion and prompted the District Judge, of course he issued the mandate compliance with and that the issue is in junction and compliance with that mandate and properly so.

And again as it comeback, neither one of them construes the Act as saying that it’s mandatory under the Act, by the wording of the Act, to send the teacher in.

Byron R. White:

There was no issue of abstention raised in the District Court, was there?

Thomas N. Sullivan:

The first time, there was.

Yes, Mr. Justice.

Byron R. White:

There was, and who raised that?

Thomas N. Sullivan:

Nobody, the District Judge raised it.

Byron R. White:

But neither the defendants — the defendants didn’t —

Thomas N. Sullivan:

No, the defendants didn’t raise it.

Byron R. White:

So the argument for abstention is that you should await a State Court construction of its constitution in order to avoid a federal statutory question?

Thomas N. Sullivan:

Well, I guess —

Byron R. White:

That’s all that the Court of Appeals got to, was the federal statutory question?

Thomas N. Sullivan:

Well, the District Judge also raised it in that same thing.

He mentioned that we had an exhausted administrative remedy, of which there were none.

And, that’s — that was reversed by the Court of Appeals in the Eighth Circuit on both counts.

But, the abstention question was not, as counsel suggests, raised by defendants.

The abstention question was raised by the District Judge only and I think clearly improper situation, the abstention cases like the Alabama — excuse me, the Alaska fishing statute, things like that where questions of a — where a state statute could be interpreted as being in conformity with the constitution and, not a question of whether you’re going to implement properly the federal benefits provided by federal law.

I do want to mention the constitutional issue, of course, since counsel raised it and goes into it.

The essential thing is that all of the secular benefits to be rendered under this Act or clearly be marked, described, and complied by the, if not — not only by the statute, but by the regulation.

Now this is not, as counsel would suggest in his brief again today, this is not a case of general educational aid across the board, that’s not it at all.

This is not a case of just supplementing the private school curriculum.

That is expressly forbidden by the Act.

The Act and the statute are confined to special and particular educational benefits for educationally deprived children.

They are not designed as a general aid to education in non-public or public schools, either one, but particularly, in private schools, can these benefits be used to add to or to replace and existing program.

The — I think that is made abundantly clear throughout.

The provision that, suggested in the brief, as to the payment of private school teachers is a — well, one example suggested by the petitioners is without any merit at all.

Thomas N. Sullivan:

They refer to the handbook as giving authority to pay private school teachers.

What the handbook says is that when private school teachers are attending an “in service” training session, they can get their lunch money and their transportation money if they’re working on Title I project.

It has nothing to do with this Act whatsoever.

The other portion, of course, if the person is working full time in a private school, then that person can be teaching summer school under Title I program or anything else can be paid by the taking of other employment.

Thurgood Marshall:

Mr. Sullivan, what — you day this is no aid to the program, but isn’t it true that if these people don’t get this aid they’ll be in bad shape?

Thomas N. Sullivan:

No, this has got nothing to do with aiding the —

Thurgood Marshall:

Aiding —

Thomas N. Sullivan:

Like Lemon or [Voice Overlap] —

Thurgood Marshall:

Aiding children in learning how to read?

Thomas N. Sullivan:

I thought you meant the schools —

Thurgood Marshall:

I meant the children.

Thomas N. Sullivan:

–the program of the schools, Mr. Justice.

Thurgood Marshall:

I meant the children.

Thomas N. Sullivan:

The children —

Thurgood Marshall:

And if this money didn’t come and the private school wanted to give their children adequate education, they would have but one thing, they’d have to put the money up themselves.

Thomas N. Sullivan:

No —

Thurgood Marshall:

Well, how else can they —

Thomas N. Sullivan:

They just can’t give, and haven’t been giving, the generally speaking, educationally deprived children in private or public schools.

The —

Thurgood Marshall:

Well, assuming that it’s necessary for them to have the special help and the private school decided they should have the special help.

But, for this, the only way that could be done would be for the private school to pick up the tab.

That’s true, isn’t it, the school district?

Thomas N. Sullivan:

Well, it’s true that if special educational benefits would be rendered to educationally deprived children, if the government doesn’t do it, somebody else will.

Warren E. Burger:

Well, their parents or their parents might have to send them to a special teacher?

Thomas N. Sullivan:

That’s one of the elements.

There are — their parents could, as the petitioner say here, as the petitioners say in the record, that they give them equal opportunity to participate by withdrawing from the private school attending the public school or coming after hours.

Those are the two options that were expressed in the record.

Thurgood Marshall:

Well, then I have a one point Mr. Pfeffer made about where is the protection against these teachers teaching religion?

Thomas N. Sullivan:

Well —

Warren E. Burger:

I want to alert you that you’ve got five minutes of your own time left, four minutes approximately.

Thomas N. Sullivan:

There are several provisions.

There’s a provision that, of course, these teachers remain strictly under public control all the time.

None of the funds can be used for worship or religious —

Thurgood Marshall:

Well, that’s up to the teacher. How is it supervised?

Thomas N. Sullivan:

The same way they are in the public schools.

If they have some teachers bootlegging religion into a Title I class, the public school agency discharges that teacher just as they do today.

Thurgood Marshall:

Well, somebody would have to tell them or something, somebody would have to report them or something.

Thomas N. Sullivan:

I beg your pardon?

Thurgood Marshall:

Somebody would have to report them.

Thomas N. Sullivan:

That’s right.

But, we don’t — Mr. Justice, we don’t establish a national system of reporting or we’re not going to bug these classrooms I hope, Mr. Justice, in order to find out and determine just which teachers are sneaking this religion in to Title I classes or to public school classes wherever they are.

Now, the ordinary — petitioner’s brief talks about going into the public school classes and maintaining surveillance, that isn’t done in any kind of a routine basis in the public school.

We haven’t established any nation of the case of this Court Bakisian case, we don’t establish any particular orthodoxy in our classrooms to which everybody must conform.

The public school teachers, whether teaching in the ordinary public school or Title I in a public school or Title I special remedies in a private school, they operate and they do the best they can.

They’re human beings.

I’m sure that, this moment, some public school across this country, there is somebody who’s putting out a little religion.

But, we’re not — I don’t know very much that you and I could do about this, Mr. Justice.

Thurgood Marshall:

They get as much supervision as the teachers that teach in the public school get?

Thomas N. Sullivan:

Title I teachers should, that’s the idea of it.

And, it can be — that Title I teacher, to my mind of thinking, can give a sermon at his Baptist church the night before.

He can go to his Knights of Columbus meeting the night before.

He can sit and watch television, as most of them are doing and never give a thought to religion from one day and the next.

And, that teacher could walk in and give his Title I class for remedial reading the next morning whether it’s in a private school or whether it’s in a public school or whether it’s any place else that the local education agency might provide and that is where we say that there is no surveillance of that type required.

In Lemon, in DiCenso, what we’re concerned about, it seems to me, was their words kept running through the opinion.

A dedicated religious person, a person deeply committed to her own religion teaching under religious supervision.

Those were the phrases that I think were in that majority opinion at least four or five times.

And we’re not talking about, as far as we know, the dedicated religious persons, we may be.

The public school teachers might be dedicated religious persons, I don’t know.

But those are their — we don’t have that conflict that the Court saw in Lemon that required a surveillance.

It seems to me that we have a much clearer case than the Allen case because, in the Allen case, at least in two of the dissenting opinions seemed to be predicated on the relief that these people could, in private schools, could select their own books about historical events and so forth.

Thomas N. Sullivan:

We don’t have that here.

They — the public school agency selects that Title I teacher, not the private school teacher.

There’s no religious test or anything like that.

So, I don’t think we have any problem at all under the Establishment Clause.

I think it’s well within the rule of Allen in that there’s — I don’t think there’s any question here about the secular purpose or even the primary effect.

I think the Congress anticipated the words of this court set out in Norwood versus Harrison that any program with a legitimate purpose that’s based between the effect and the entanglement problems is constitutional under the Establishment Clause and that’s what the Congress did here, and that’s what the Office of Education requires in all of its regulations.

Warren E. Burger:

I think your time is up now.

Thomas N. Sullivan:

Thank you.

Warren E. Burger:

Mr. Sullivan.

Mr. Friedman.

Daniel M. Friedman:

Mr. Chief Justice and may it please the Court.

At the outset, I would like just briefly to explain to the Court how Title I of the educate — the Elementary and Secondary Education Act of 1965 operates because I think that’s crucial to the case.

The statute was passed because of a recognition by the President and the Congress that there’s a large number, literally millions, of educationally deprived children in this country who, because of lack of adequate education, would not be able to assume their rightful and proper place in American society.

And, the basic purpose of this statute as described in the congressional declaration of policy at the outset of the statute was to enable the local educational authorities to meet the special educational needs of educationally deprived children.

The focus of the Act, the way the Act is created, is to turnover vast amounts of federal money to the State Educational Authorities in order to correct, in order to improve the deficiencies that existed in the education of these educationally deprived children and, it deals with children who come from poverty.

The basic touchstone for getting the aid is that the children must come from areas of the city of the country where the income level is low.

Now the plan, as it’s envisioned, basically is as follows: The states initially apply to the Commissioner of Education for authorization, a rather simple document for which they all filed and were — these documents were approved 89 years ago saying they wished to participate in the program and they will meet the statutory standards.

The statutory standards are very general.

What it says, basically, is that the State Educational Authority shall approve applications filed by local authorities which are consistent with the guidelines promulgated by the Commissioner of Education.

The Commissioner of Education just promulgated guidelines.

The statute least explicitly informed discretion of the local educational authorities, the local Boards of Education, to determine what is the most appropriate method, the most effective method, for meeting the special educational needs of these educationally deprived children —

William J. Brennan, Jr.:

But in doing that I take it, Mr. Friedman though, within any limitations that may be imposed by state law.

Daniel M. Friedman:

Yes, Mr. Justice.

William J. Brennan, Jr.:

That is, I mean, the local educational authorities.

Daniel M. Friedman:

The local educational authorities —

William J. Brennan, Jr.:

They have to adhere to state law, do they not?

Daniel M. Friedman:

They have to adhere to state law and, indeed, the regulations specifically recognizes and contemplate it, and recognizes it because of certain requirements of state law, there may be situations where particular programs have to be worked at.

But the programs, of course, are all supplementary services.

These basically are services that would not be provided in the schools, public and private, under the schools’ normal operating procedures.

These are children who are not able to meet, were not able to meet the normal standards.

Daniel M. Friedman:

The regulations of the Commissioner define educationally deprived child as one who’s educational achievements do not reach the level customarily associated with children of this age group.

This is the basic thrust of the statute is to help bring the level of all of the children up, and of course, the statute is not in any way directed to aiding schools.

The statute is designed to help the problem of the children and the statute, unlike those which this Court had before it in some of these other cases, is not in any way designed to aid the private schools.

These are not cases such as Lemon, DiCenso, Nyquist in which the state has decided that the private schools have a serious financial problem and they need an infusion of government aid to keep them going.

This is a statute in which Congress decided that children not schools, children need help.

Children need help to enable them to achieve their rightful place in America and the Congress recognized that these children who need help are not only in the public schools.

They’re also in the private schools.

Poverty draws no lines between the public and the private schools.

Religiously affiliated schools have just as many poor children as the public schools.

In this very case, the two parochial schools that are involved are in the ghetto of the city of Kansas City.

Warren E. Burger:

Well, and affluent people have just as many children with reading problems as poor in general, do they not?

Daniel M. Friedman:

Yes, it’s unfortunate of condition which does not — which draws no lines and it’s a condition that you could have.

Warren E. Burger:

I think we’ll resume after lunch.

[Luncheon Recess]

Mr. Friedman, you have about 10 minutes left, I see.

Daniel M. Friedman:

Mr. Chief Justice and may it please the Court.

I’d like to continue briefly with my discussion of the way the statute operates.

And, the next point I’d like to make is that this program is completely under the control of the public authorities.

It is the local school district and State Educational Authorities that formulate the plans.

The State Educational Authorities review the plans for the clients with the standards.

The teachers who provide these services are all employees of the public school agencies.

There are no teachers providing these schools who are employed by any of the religiously affiliated schools.

The teachers are subject to control and supervision of the public school authorities, not under the control of the private school authorities.

And of course, as I think is clear by now, there are no funds at all under this statute paid to the private schools.

The funds are all paid to the state and it’s the state who provides these services.

Now, in addition to that, the vast bulk of these services go —

William J. Brennan, Jr.:

Excuse me, Mr. Friedman, did you say that — does the law require that only public school teachers could be used?

For example, could a local Board of Education employ some trained professional in teaching in a parochial school?

Daniel M. Friedman:

Not — they could only employ them, for example, during, say, in a summer situation.

They could — I think and let me explain that if I may, Mr. Justice, the way that it’s set up.

Daniel M. Friedman:

The actual control of the teachers, the actual content of the programs is all handled by the local authorities.

Now to the extent, I suppose, that state law would permit the state public authorities to hire someone who is teaching in the parochial school part time during the summer to conduct the remedial reading program, I would see no problem to that.

But, what they cannot do is they cannot say a teacher who is teaching in one of the parochial schools, you ought to spend part of your time now providing these Title I services.

The services must be provided by the public school people.

Byron R. White:

You mean that the people on the local educational agencies payroll?

Daniel M. Friedman:

Yes.

Potter Stewart:

Well, couldn’t the state or its subdivision hire a teacher who did nothing else but this, didn’t have any other teaching duties in the public school but taught only remedial reading, went around may be the various public schools and did so?

Daniel M. Friedman:

Yes, as I say and I perhaps I misspoken myself —

Potter Stewart:

Well, perhaps I —

Daniel M. Friedman:

I am not —

Potter Stewart:

Perhaps I did —

Daniel M. Friedman:

I’m not suggesting that they have to be regularly, otherwise, utilized teachers in the public school.

They could certainly, and I’m sure —

Potter Stewart:

And many of them are, in fact, are, aren’t they?

Daniel M. Friedman:

Yes, but they are —

Potter Stewart:

Hired for this purpose alone.

Daniel M. Friedman:

For this purpose alone, but they are employees of the public school authorities.

That’s the point I wanted to make.

Potter Stewart:

Right.

Daniel M. Friedman:

Yes.

Now, the vast bulk of the children who are receiving the benefits of these services are enrolled in the public schools.

The indications we have is that approximately only 5% of the children who are receiving the benefits of these services are, in fact, enrolled in the private schools.

Now, one other thing I think is important, in contrast to the situation with the plans involved in the Lemon case; in the Lemon case the grants were made for the provision of secular educational services, and therefore, you had the excessive government involvement.

I’d like to stress the standard this Court has always recognized as excessive government involvement.

There may be situations where there’s some government involvement.

The thing is, there can’t be excessive government involvement.

Warren E. Burger:

I think the case has used the phrase “entanglement” rather than involvement.

It may mean the same thing, but —

Daniel M. Friedman:

I stand corrected, Mr. Chief Justice.

Warren E. Burger:

It has other connotations.

Daniel M. Friedman:

Excessive government entanglement.

There, in the Lemon type of situation, it was necessary for the state to subject the activities in the religious schools to surveillance to be sure that the teachers who were being subsidized or the school — the money which the school was receiving was used solely for secular purposes and that was one of the serious vices that this Court found in the Lemon case.

Here, there’s no use at all of any moneys possible for that purpose and the educational authorities, the state authorities, do not have to make any determination what is secular, what is sectarian, whether the teachers are strictly observing the limitations, that the parochial school teachers when they are paid with the state funds are in fact limiting themselves to secular services.

There’s not that problem in this case because, here, what you’re having basically, as I’ve indicated, is the provision of supplemental services, mainly remedial reading, remedial mathematics, speech, that kind of thing which is necessary to bring to children up to a decent educational level.

Now, I’d like to turn now to the question of the statutory question in the case, and there’s been a lot of discussion here as to what the Court of Appeals held in this case.

The actual holding on the issue of what is permitted or required under the statute, I think, is set forth in the first sentence of page a25 to the petition for certiorari.

And, what the Court said at the top of the page is “thus, we find that when the need for educationally disadvantaged children requires it, Title I authorizes,” not requires, “Title I authorizes special teaching services, as contemplated within the Act and regulations, to be furnished by the public agency on private as well as public school premises.”

I think what the Court of Appeals —

Byron R. White:

Well, what about the next sentence, Mr. Friedman?

Daniel M. Friedman:

Well, what the Court is saying I think, Mr. Justice, is that there is a requirement under the Act that the services provided be comparable.

And, if the only way in which the state is providing the services is by providing them during hours, during the school hours, on the premises of the public school that the child regularly attends, then they have to provide comparable services in the private schools to send the teachers on.

But, as this case now stands, we don’t know what the State of Missouri is going to formulate in the way of a plan.

Perhaps, the State of Missouri may now decide in the light of these — of the decision in this case that it will provide these services in the public schools after hours.

It provides them in the public schools after hours, under the injunction issue by the District Court it is not required also to provide these services in the private schools after hours or, conceivably, the State of Missouri may now decide —

Byron R. White:

Well the claim is that the state shouldn’t have to respond to an injunction like that?

Daniel M. Friedman:

Well — but, Mr. Justice, that is because of the conduct — the reason the state has to respond to this is because of the requirement in the statute that it’s comparable.

They have to provide comparable services.

Byron R. White:

Yes, but part of the issue is whether comparability as used in the Act requires that the programs be furnished on the premise that private schools if they are furnished on the premises of the public schools, that’s part of the issue here?

Daniel M. Friedman:

That is part of the issue, Mr. Justice, but we don’t know at this time, one, whether the state is going to undertake and furnish them on that basis, but two, precisely how it’s going to furnish them.

It — in this case, it strikes me as a somewhat strange situation.

The Court of Appeals specifically declined to rule on the constitutionality of the — this issue because it said we have no precise plan before us.

We don’t know exactly how these services are going to be provided.

All they described is a conjectural hypothetical state of facts.

Byron R. White:

Do you think the injunction that was issued in compliance with the mandate was consistent with the opinion of the Court of Appeals?

Daniel M. Friedman:

Yes, I do, Mr. Justice.

I think the District Court has interpreted the opinion of the Court of Appeals as saying that if you provide services on the public school premises which the child customarily attends, that is in the school where the child attends, and if this is done during regular school hours in the light of testimony that when you have that kind of a situation after hours or Saturdays or summer school is not educationally comparable, in that one situation, the Court of Appeals said that it is necessary to provide similar services in the private school.

William J. Brennan, Jr.:

Let me see if I get this, Mr. Friedman.

Looking at a46, this is the modified injunction consistent with the Court of Appeals’ opinion, “defendants are enjoined from disapproving any application on the basis that such basis includes the use of Title I personnel on private school premises during regular school hours.”

And what you’re suggesting is that the Missouri authorities may in fact go to, say, a dual enrollment way of complying with the statute.

Daniel M. Friedman:

If that’s permissible under state law.

William J. Brennan, Jr.:

Yes, and that if they did so, then they would not be violating this injunction?

Daniel M. Friedman:

I believe that’s correct, Mr. Justice.

I see my time has expired.

Warren E. Burger:

Very well, Mr. Friedman.

Mr. Pfeffer, you have 10 minutes left.

Leo Pfeffer:

Thank you.

Mr. Chief Justice and may it please the Court.

I must take exception to the last statement made by Mr. Friedman.

It seems to me that this is the mandate of the District Court that’s clear and ambiguous and leaves no options.

It says the defendant is enjoined from disapproving any application of the local educational agency on the basis that such application includes the use of Title I personnel in private school premises during regular school hours.

There’s no way of interpreting this to allow shared time.

Shared time and, certainly, dual enrollment is not within this.

It’s not use of time —

William J. Brennan, Jr.:

That’s the point though.

It’s not within this and if an application is submitted which says the way we propose to enforce the program is on dual enrollment, then it’s not an application which the state is going to use personnel and private school premises during regular school hours.

Leo Pfeffer:

And therefore, it would have to be rejected.

It would have to be rejected because we are enjoined, we are enjoined from doing anything, but sending public school teachers into private schools during school others.

If we have anything else, this is the — we are enjoined from doing that.

Now, one other point I want to make with respect to that.

I would like to call the Court’s attention to the fact that we do not concede that the only permissible alternatives under the Act are dual enrollment and sending teachers in.

We call the Court’s attention to the statute — the language of the statute which is on page 3 of our brief which says the term — I’d like to call the Court’s attention to from the page, such page —

William J. Brennan, Jr.:

In page?

Leo Pfeffer:

— Page 3 of the petition for certiorari, Justice Brennan.

William J. Brennan, Jr.:

Thank you.

Leo Pfeffer:

I’m sorry, page 3 of the petition for certiorari.

William J. Brennan, Jr.:

Page 3 of the —

Leo Pfeffer:

Petition for certiorari, yes sir.

It says, dealing with private schools, “such as dual enrollment, educational radio and television and mobile education service and equipment.”

I respectfully suggest that the statute does not limit and there is no basis for saying that the only alternatives open to a state are either sending the public school teacher in or dual enrollment.

The “such as” indicates that these are illustrative, are things which are permissible.

Leo Pfeffer:

Another point I shall like to make, and this is in response to a statement made by Mr. Sullivan in response to a question by a member of the Court, that if the State of Missouri — the Supreme Court of the State of Missouri had ruled, for example, that dual enrollment under Title I is not inconsistent with state law, the State Board of Education takes a position that it could ignore it and deem itself to be the only judge, I think that, obviously, it’s not such.

Of course, we are a state agency, we are subject to the judgments of a State Supreme Court, and indeed, our position is based upon our interpretation of a State Supreme Court decision.

If the State Supreme Court says to us it is not a violation of state law to do your dual enrollment or sending Type I teachers in, we’re bound by that, if not, there’ll be a judgment of contempt against us.

We say only that in between, in respect, the relationship, the inter-government relationship between the State of Missouri and the United States Office of Education that the initial responsibility of determining the state law rests with the State Board of Education.

Now, this leads us to another point in respect with the abstention.

In the District Court, when the case first came up, we did not initially ask for abstention.

The reason for that was that we took the position that state law was clear in that our responsibility under state law was clear that there was no question of state law as far as the federal district was concerned.

The question was the State of Missouri, speaking through its State Board of Education, ruled that this was not permissible.

Then, the court of its own raised it and we then replied that if this court deems that this is relevant, then it should abstain and we so argued it, that it’s abstained until a State Court decision could be reached, but the Court of Appeals said that state law is irrelevant.

William J. Brennan, Jr.:

Well, may I ask?

The District Court, I gather, refused to abstain, did it?

Leo Pfeffer:

The District Court initially abstained.

William J. Brennan, Jr.:

I know.

Leo Pfeffer:

Then the Court of Appeals reversed it and said that state law is irrelevant.

William J. Brennan, Jr.:

I see.

Leo Pfeffer:

Because it’s a federal law and, therefore —

William J. Brennan, Jr.:

That is in this opinion, is it?

Leo Pfeffer:

No, that’s in the — that’s referred to.

That’ initial.

Then, we sent it back and we had a trial.

William J. Brennan, Jr.:

May I ask, what — would you it be your view, Mr. Pfeffer, that it’s open to us still to direct the abstention if we thought was appropriate thing to do here?

Leo Pfeffer:

No, Mr. Justice Brennan, it is our view initially that state law is irrelevant in the sense —

William J. Brennan, Jr.:

I know, but suppose we would disagree with you and we thought the —

Leo Pfeffer:

State law — then the only thing that could be done would be, and I think there’s a procedure where you — that the state law question could be satisfied to the Supreme Court of Missouri, assuming that that is —

William J. Brennan, Jr.:

No, my question is whether it would be appropriate for us to vacate, and send this back and direct abstention.

In your view, we could do that?

Leo Pfeffer:

You could do that —

William J. Brennan, Jr.:

Student body?

Leo Pfeffer:

Mr. Justice Brennan, although — you could do that, but our contention of course, our second condition is that even if state law is not violated that this does violate —

William J. Brennan, Jr.:

Yes, I know.

Leo Pfeffer:

— the Establishment Clause.

So, that in —

William J. Brennan, Jr.:

But, I gather, any state under this program, it’s legislature could adopt the law forbidding any school district of the state from applying to participate in this program.

Leo Pfeffer:

I assume so.

William J. Brennan, Jr.:

Yes.

Well now if the Missouri constitution is to be read as, in effect, prohibiting any state and any school district from applying, then we’d never have to reach the Establishment Clause question in this case, wouldn’t we?

Leo Pfeffer:

I would assume so.

The — I think that would be correct, but we would —

William J. Brennan, Jr.:

Well, then if that were so, I think you’d agree, Mr. Pfeffer, then at least there is an issue here that might be avoided by directing abstention.

Leo Pfeffer:

The only thing I answer, Mr. Justice Brennan, is that except for the original argument, we could not convince the Court of Appeals.

William J. Brennan, Jr.:

Well, maybe you convinced us.

Byron R. White:

Mr. Pfeffer, do you agree with the Court of Appeals that under the Wheeler case in the Missouri Courts that dual enrollment is not consistent with the state statute?

Leo Pfeffer:

I could only say — are you asking my opinion or the opinion of the State Board of Education?

Byron R. White:

I’m not sure.

Leo Pfeffer:

The State Board of Education —

Byron R. White:

I’m asking you what’s your position, here, in this Court as to what state law is on dual enrollment?

Leo Pfeffer:

And our position is that state law is that dual enrollment and sending teachers into —

Byron R. White:

That isn’t what I ask you.

Leo Pfeffer:

Both are equally —

Byron R. White:

I ask you about dual enrollment.

Leo Pfeffer:

Yes, both equally forbidden by the State Constitution of Missouri.

Byron R. White:

Mr. Pfeffer, I ask you whether you agreed with that, that under the Wheeler case dual enrollment had been outlawed under a state statute?

Leo Pfeffer:

Yes, that’s true, but —

Byron R. White:

So it is contrary to state law whether it’s contrary to state constitution or not?

Leo Pfeffer:

Yes, it’s contrary to state law whether it’s — yes.

Byron R. White:

Your position is that under the state constitution both forms are forbidden?

Leo Pfeffer:

Exactly, and —

Byron R. White:

And which it does bring in under the spotlight Mr. Justice Brennan’s question.

Leo Pfeffer:

Yes.

My ultimate position is that, as we interpret the federal statute, the federal statute requires accommodation to state law, constitutional, statutory, and decision.

Byron R. White:

I understand.

Leo Pfeffer:

Therefore, it’s the whole conglomeration, not merely one aspect of it.

Byron R. White:

Well, unless you were going to abstain then, I would suppose that under this and if you agree that state statute bars dual enrollment, then you really are up against a federal constitutional question of the — and which is what you said.

Leo Pfeffer:

Well, in the —

Byron R. White:

That’s your position that you are up against —

Leo Pfeffer:

Yes, in a sense.

Yes, the only thing I can also answer is, as I interpret it, I would — as I interpret the statute, and I miss in there, those are not the only two alternatives permitted.

Dual enrollment and sending in, these are possible.

There are a variety of alternatives.

We have been foreclosed by the decision of the District Court to use one option.

The option which we want, which we believe is the best option.

We’ve been foreclosed.

We’ve been foreclosed; we believe it’s violation our state law, our state constitution to send public school teachers in.

We’ve been told to forget that.

You cannot use that as criteria.

You’re enjoined from it.

If we use it, we’re under contempt.

This is the issue before the Court.

Warren E. Burger:

Thank you, Gentlemen.

The case is submitted.