Grand Rapids Sch. Dist. v. Ball
473 US 373 (Decided July 1, 1985)
Bill Long
On the same day it decided Aguilar, a victory for the Brennan-led coalition which had experienced rough times since the coming of Burger, Powell, Rehnquist and, more recently, O'Connor on the Court, the Court, in this 5-4 opinion authored by Justice Brennan, disallowed Shared Time and Community Education programs in the Grand Rapids School District, in which classes were offered by public and private school teachers on the grounds of nonpublic schools.
Whereas one might say in 2004 that the "swing" vote on the US Supreme Court is now Justice Sandra Day O'Connor or sometimes Justice Anthony Kennedy, in 1985 it was Justice Lewis Powell. Justice Brennan's legendary persuasive capacities won him over in both Aguilar and Grand Rapids, and the instrument of this winning over was the entanglement-prong of the Lemon test. As Powell said in his Aguilar concurrence, "I agree with the Court...the Establishment Clause is violated because there is too great a risk of government entanglement in the administration of the religious schools." Perhaps this is one of the reasons why Justices Rehnquist and White and, increasingly, Justice O'Connor wanted to dispense with this third Lemon prong.
Relevant Facts
The Grand Rapids (MI) School District implemented two programs that were at issue in this case. (1) Under the "Shared Time" program, public school teachers, some of whom were former or current parochial school instructors, offered remedial and enrichment education on the nonpublic school sites. Though Shared Time itself was only offered in nonpublic schools, public schools offered similar courses. Teachers, a "significant portion" of whom had previously taught in the same nonpublic schools where they were now assigned, would often move from classroom to classroom during the course of the regular school day.
(2) Under the Community Education program instructors who teach in the nonpublic schools were made part-time public school employees and, at the end of the school day, offered courses supplementing the regular curriculum, such as Home Economics, Arts and Crafts, and Model Building, in the private school classrooms. The classrooms were labeled "publc school" but the students as well as the teacher in private school Community Education were, most likely, the same students and teachers who were at the private school for the entire school day. 40 of the 41 schools at which these programs were offered were "pervasively sectarian."
The Majority Holding
Justice Brennan, writing for the 5-4 majority, found three grounds to disallow the programs. First the teachers partcipating in the programs may inadvertently proselytize the students; second, the programs may provide a crucial symbolic link between government and religion; and third, the programs may impermissibly provde a public subsidy to the religious mission of the schools. The first and third arguments are traditional and expected; the second is novel.
The "inadvertent proselytization" argument derives from Meek and was upheld in Wolman. Teachers are not as easy to control as are textbooks, the loan of which was approved in Allen and upheld numerous times thereafter. When the clear and ever-present power of religious symbols is all around, it may be difficult for the teachers to refrain from participating in that religious milieu.
The "symbolic link" argument is ultimately derived by Brennan from the contrasting holdings in McCollum and Zorach regarding release-time programs. The former program, taking place within the school grounds, was disallowed while the latter, requiring the students to leave the premises, was upheld. Justice Brennan interprets this shift as an indication that the "symbolic union" between church and state present in McCollum (1948) was absent four years later in Zorach.
Then, the "public subsidy" argument is again brought out of the quiver and linked with the direct v. indirect aid problem that the Court had repeatedly faced. In this instance, Justice Brennan argues that the programs here, which provide teachers in addition to instructional materials (which were disallowed in Meek and Wolman), have an effect of advancing religion. "This kind of direct aid to the educational function of the religious school is indistinguishable from the provision of a direct cash subsidy to the religious school that is most clearly prohibited under the Establishment Clause."
His language becomes more extravagant as his argument continues. Petitioners argued that these programs, which supplemented rather than supplanted the curriculum, was not a significant outlay of resources but Justice Brennan claimed that petitioners' argument would permit the public schools gradually to "take over the entire secular curriculum of the religious school." This was the first float in his parade of horribles that probably even the religious schools had not even considered.
In Dissent
Two of the four dissenters (Burger and O'Connor) would have disallowed the Community Education but permitted the Shared Time program. Justice O'Connor pointed out that the "significant portion" of Shared Time teachers that had previously been private school teachers consisted actually of 13 people, only a fraction of whom now work in a parochial school where they were previously employed. As in her Aguilar dissent, she considered numbers important and thought that the majority had considerably overstated the dangers of proselytization. Justices Rehnquist and White dissented from both parts of the holding.
Conclusion
Numbers cut both ways. Evidence that there was lest than .01% of parents of public school students who could qualify for the MN tuition tax deduction was quickly brushed aside by Justice Rehnquist in Mueller (1983). Evidence of a miniscule portion of the Shared Time teachers actually being currently employed in the nonpublic schools where they taught as Shared Time instructors was likewise ignored. Both liberals and conservatives, it seems, discard numbers when it is not in their interest to use them. Is that the way law works?
Copyright © 2004-2007 William R. Long |