The fundamental error of Meek, Wolman, and the cases that have followed the rationale of those decisions is that they have prohibited government agencies from sponsoring materials or engaging in conduct that is not intrinsically and on its face religious. In Meek and Wolman, as in the now-repudiated rulings of Aguilar v. Felton, 473 U.S. 402 (1985), and School District of Grand Rapids v. Ball, 473 U.S. 373 (1985), a majority of the Court disapproved of state-financed educational programs that assisted religious schools even though the programs were, in and of themselves, secular, neutral and nonideological. The ground stated by the Court was that the administration of the secular programs raised concerns regarding their "primary effect" on religion or possible "entanglement" with religious groups.

The Establishment Clause of the First Amendment was never intended, however, to foreclose secular government programs merely because they might be used by churches or private individuals to foster religion. The legislative history of the Establishment Clause was thoroughly reviewed and described in now-Chief Justice Rehnquist's dissenting opinion in Wallace v. Jaffree, 472 U.S. 38, 91-114 (1985). The Chief Justice's conclusion that James Madison, rather than Thomas Jefferson, should be viewed as the principal architect of the First Amendment's Religion Clauses might be open to debate, but it is indisputable that the language of the Establishment Clause never reached beyond government action that, in and of itself, promoted or hindered religion. Indeed, the final two versions of the Religion Clauses emanating in 1789 from the House and the Senate that were ultimately compromised, following conference, into the current version of the first 16 words of the Bill of Rights were (472 U.S. at 97):

House version: "Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience."

Senate version: "Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion."

By no stretch of the imagination could either of these provisions be interpreted as prohibiting government from providing secular classroom materials – or even a movie projector – to a religious school. Such action neither "establishes religion" nor "establishes articles of faith or a mode of worship." Indeed, James Madison's explanation of the initial draft of the Religion Clauses stated that its purpose was "that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience." See 1 Annals of Congress 730 (J. Gales ed., 1834) (Aug. 15, 1789), quoted and discussed in Michael W. McConnell, The Origins of the Religion Clause of the Constitution: Coercion: The Lost Element of Establishment, 27 Wm. & Mary L. Rev. 933, 936-37 (1986). See also Mary Ann Glendon & Raul F. Yanes, Structural Free Exercise, 90 Mich. L. Rev. 477 (1991).

When a State provides a secular textbook devoid of religious content or a map or laboratory equipment or a computer to a school where religion is taught on the same basis as it provides the same materials to public or secular private schools, the State is not establishing any article of faith or any religion. The possibility that a teacher in the religious school may use the state-provided material for religious indoctrination does not invalidate the State's even-handed distribution of secular educational materials. And nothing in the language or history of the Establishment Clause supports the proposition that neutral material that the State even-handedly provides becomes constitutionally suspect because a religious teacher may thereafter use it for religious indoctrination.

Meek and Wolman were based on a premise that was repudiated and overruled by the Court in Agostini v. Felton, 521 U.S. 203 (1997). The Court majority observed in Agostini that "government inculcation of religious beliefs has the impermissible effect of advancing religion." 521 U.S. at 223. But the Court held that no presumption of inculcation or "taint" can be drawn from the mere fact that a secular government employee is found in religious surroundings. The majority in Agostini held that this Court’s decision in Zobrest v. Catalina Foothills School Dist., 509 U.S. 1 (1993), had "expressly rejected the notion . . . that, solely because of her presence on private school property, a public employee will be presumed to inculcate religion in the students." 521 U.S. at 224. Instead of looking to the location where the government-financed employee is found, the Agostini majority looked to the nature of the employee herself. On this account, the Court said, it was generally true that "public employees will not be presumed to inculcate religion" even in the surroundings of a religious school. 521 U.S. at 225.

Chief Justice Burger made the same point in Tilton v. Richardson, 403 U.S. 672 (1971), decided together with Lemon v. Kurtzman, when he said that the Court in the Allen case "refused to assume that religiosity in parochial elementary and secondary schools necessarily permeates the secular education that they provide." 403 U.S. at 681.

By the same token, secular textbooks or other secular materials or equipment cannot be presumed to be used "to inculcate religion" even if they are given by government to religious schools. Jewish day schools customarily teach secular subjects in an objective secular manner. History, foreign language, science and mathematics are not used to indoctrinate the students in religious dogma or practice. Instead, they are taught in a non-ideological fashion, albeit in the context of a school day during which the students are also given extensive teaching and training in religious subjects. Students in these schools appreciate that their Jewish religious education is as important as their secular studies, and they see that secular subjects can be studied intensively even while one is fully committed to the observance of traditional Judaism. But the secular teaching is not diluted or altered in order to conform to religious dogma.

BE CONSTITUTIONALLY IRRELEVANT

Dissenting from a denial of certiorari, Justice Thomas noted in Columbia Union College v. Clark, 119 S. Ct. 2357 (1999), that the characterization of schools receiving governmental assistance as "pervasively sectarian" should be "scrapped." He noted that distinguishing between institutions on the basis of this standard – i.e., placing schools in a particularly constitutionally suspect category if they "consider their religious and educational missions indivisible and therefore require religion to permeate all activities" (119 S. Ct. at 2357) – was tantamount to invidious religious discrimination.

Justices Kennedy and Scalia, concurring in Bowen v. Kendrick, 487 U.S. 589, 624 (1988), made a substantially similar point. They said that the issue in a constitutional challenge to a program of public benefits that are made available to religious institutions "is not whether the entity is of a religious character, but how it spends its grant." 487 U.S. at 624-25.

The constitutional rule we are urging in this case turns entirely on the nature of the materials that government provides; it does not depend at all on the character of the recipient – whether or not it is a "pervasively sectarian" institution. This is, we submit, the salutary rule. The constitutionality of the Chapter 2 program and of other governmental programs that provide secular, neutral and nonideological materials and equipment to public and private schools should not depend on the character of the recipients. It should depend only on the content of the materials that government is providing. Such a rule would consign the "pervasively sectarian" characterization to the scrap-pile, which is where it belongs.

CONCLUSION

For the foregoing reasons, Meek and Wolman should be overruled and the judgment of the Court of Appeals for the Fifth Circuit should be reversed.

Respectfully submitted,

NATHAN LEWIN

(Counsel of Record)

JULIA E. GUTTMAN

JODY MANIER KRIS

MILLER, CASSIDY, LARROCA & LEWIN, L.L.P.

2555 M Street, N.W.

Washington, D.C. 20037

(202) 293-6400

Attorneys for Amicus Curiae

The AVI CHAI Foundation

August 1999

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