SCHOOL DISTRICT OF THE CITY OF GRAND RAPIDS, ET AL., PETITIONERS V. PHYLLIS BALL, ET AL. No. 83-990 In the Supreme Court of the United States October Term, 1983 On Writ of Certiorari to The United States Court of Appeals For The Sixth Circuit Brief For The United States As Amicus Curiae Supporting Petitioners TABLE OF CONTENTS Interest of the United States Statement Summary of argument Argument I. The use of public school teachers to provide Shared Time and Community Education services to children in leased classrooms on private school premises does not violate the Establishment Clause A. The secular purpose of the Grand Rapids Shared Time and Community Education programs is not disputed and is not at issue B. The primary effect of the Grand Rapids Shared Time and Community Education programs is neutral; the programs do not advance religion 1. The primary effect of the programs is to enrich the education provided to private school students, not to advance religion 2. The programs provide comparable educational opportunities for all schoolchildren, public and private, on a neutral basis 3. The programs provide benefits directly to the eligible schoolchildren 4. The decision below was based on speculation not supported by the record C. The Grand Rapids Shared Time and Community Education programs do not foster excessive government entanglement with religion 1. The Grand Rapids programs have not occasioned excessive administrative entanglement with religion 2. The court's finding of "political divisiveness" is neither legally nor factually supportable II. The validity of the federal Title I program, which is a comprehensive educational enrichment program for the benefit of disadvantaged public and private schoolchildren, presents independent issues that need not be addressed in this case Conclusion QUESTION PRESENTED The United States will address the following question: Whether it constitutes a per se violation of the Establishment Clause for a local school district, as part of an enrichment and remedial educational program made available to all children in the district, to provide -- under public school control -- secular, supplementary, nonsubstitutionary courses of instruction to private school students on premises leased from religiously-oriented nonpublic schools. INTEREST OF THE UNITED STATES This case involves the constitutionality of the "Community Education" and "Shared Time" programs of the School District of the City of Grand Rapids, Michigan, insofar as they provide educational services on the leased premises of nonpublic schools. The United States has a substantial interest in this matter because, since 1965, federal legislation has provided for grants-in-aid "to local educational agencies serving areas with concentrations of children from low-income families to expand and improve their educational programs by various means * * * which contribute particularly to meeting the special educational needs of educationally deprived children." 20 U.S.C. (Supp. II 1978) 2701. See Title I of the Elementary and Secondary Education Act of 1965, Pub. L. No. 89-10, 79 Stat. 27, 20 U.S.C. (Supp. II 1978) 2701 et seq., now superseded by 20 U.S.C. 3801 et seq. /1/ The Act specifically requires that provisions be made for the participation of eligible students who attend nonpublic schools. 20 U.S.C. 3806. Many local educational agencies have met this requirement by providing Title I remedial education services to eligible children on the premises of nonpublic schools. The practice of providing Title I educational services on the premises of nonpublic schools has been defended by the federal government in several cases. In National Coalition for Public Education & Religious Liberty (PEARL) v. Harris, 489 F. Supp. 1248 (S.D.N.Y.), appeal dismissed for want of jurisdiction, 449 U.S. 808 (1980), a three-judge district court upheld the practice on the basis of a thorough examination of the actual operations of the Title I program in New York City. Three other cases are pending at various stages in the federal courts. See Felton v. Secretary, United States Department of Education, Civil No. 78 CV 1750 (ERN) (E.D.N.Y. Oct. 4, 1983) (upholding constitutionality of the New York City Title I program), appeal pending, No. 83-6359 (2d Cir. filed Dec. 27, 1983); Barnes v. Bell, Civil No. C-80-0501-L(B) (W.D. Ky. filed Oct. 1, 1980); Wamble v. Bell, Civil No. 77-0254-CV-W-8 (W.D. Mo. filed Apr. 4, 1977). /2/ Although this case does not involve a challenge to educational services funded under Title I (Pet. App. 73a n.5), /3/ this Court's decision is likely to have a substantial impact on the lower courts' consideration of the somewhat analogous legal and factual issues presented in the pending Title I cases. The United States therefore has compelling reasons for presenting its views on the constitutionality of the programs challenged here, and for informing the Court of the relevant elements of the Title I program. STATEMENT 1. The school District of the City of Grand Rapids, using state funds (Pet. App. 72a-73a), operated Shared Time and Community Education programs to provide schoolchildren a variety of courses that supplement the schools' core curriculum. These courses, with one exception not relevant here, /4/ are not required for graduation or for progression from grade to grade (Pet. App. 7a, 8a-9a, 77a, 78a). As the courts below found, the challenged course offerings are strictly supplemental to the nonpublic schools' curriculum; none of the courses would otherwise be available at the nonpublic schools (Pet. App. 7a, 9a, 77a, 78a). The Shared Time and Community Education programs are authorized, but not required, under state law (Traverse City School District v. Attorney General, 384 Mich. 390, 411 n.3, 185 N.W.2d 9, 17-18 n.3 (1971)), and are wholly funded by the State (Pet. App. 72a-73a). In the 1981-1982 school year, approximately 11,000 nonpublic school students participated in the Grand Rapids Shared Time and Community Education programs (Pet. App. 4a, 74a), which operated on a budget of approximately $3 million (Pet. App. 74a n.6). The Shared Time Program is designed to make available to nonpublic school students some of the courses that are available to public school students as part of the public schools' more varied general curriculum. Shared Time courses have been available in the State of Michigan since 1921. See Traverse City School District v. Attorney General, 384 Mich. 390, 407 n.2, 185 N.W.2d 9, 15 n.2 (1971); see also Pet. App. 6a, 76a. In the past, Shared Time classes had been offered only in public school buildings -- off the premises of the private schools (Pet. App. 6a, 76a). Since 1976, however, the Grand Rapids Shared Time program has provided educational services on leased premises at both secular and religious private schools (Pet. App. 7a, 76a). At the elementary school level, the Shared Time courses included remedial and enrichment mathematics, remedial and enrichment reading, art, music, and physical education (Pet. App. 7a, 76a). At the secondary school level, the courses include remedial mathematics (ibid.). These courses are taught by 131 public school teachers. Of these, 13 had been previously employed by nonpublic schools (J.A. 193). The Shared Time courses constitute "a relative small portion" -- about 10% -- of the average nonpublic school student's "total educational experience" (Pet. App. 8a, 77a). The Community Education program in Grand Rapids began in the early 1970s and, since 1975, has included offerings on leased premises at nonpublic schools (Pet. App. 8a, 77a). Courses in this program are offered only outside regular school hours (Pet. App. 8a, 77a). At the elementary school level, courses focus on leisure-time activities (Pet. App. 8a, 77a-78a), such as arts and crafts (J.A. 206-213). The courses are completely voluntary and are only offered when 12 or more students are enrolled (Pet. App. 9a). No Community Education courses at the secondary level remain at issue (J.A. 30-31). More than 300 instructors are employed on a part-time basis by the public school district in connection with the Community Education program. Most of these are regular full-time instructors at the same school -- public or nonpublic, as the case may be -- where they teach Community Education courses. Pet. App. 9a, 78a. The district court and the court of appeals found that the reason for using teachers at the "home" school is that a "well known teacher able to attract students" is "essential" to inducing participation by sufficient students to justify the course offering (id. at 9a, 78a). For purposes of the Community Education program, however, these instructors are part-time public school teachers under exclusive public school supervision and control (Pet. App. 8a, 77a). The courts below found no evidence during the six years these programs have been conducted in their present form that "any teacher in either Shared Time or Community Development classes has sought in such classes to indoctrinate any student in accordance with the school's religious persuasion" (id. at 35a). The public school district pays a modest rental ($6 per week per class at elementary schools, $10 per week per class at secondary schools) for use of facilities on private school premises used for Shared Time and Community Education classes (Pet. App. 5a, 74a). Class areas used by the programs are designated by signs as public school classrooms, and contain no religious symbols or artifacts (id. at 5a, 75a). 2. Respondents, six state taxpayers residing within the Grand Rapids school district (Pet. App. 66a-67a), filed suit in the United States District Court for the Western District of Michigan against the school district and various state officials to challenge certain features of the Shared Time and Community Education programs as violating the Establishment Clause of the First Amendment, as applied to the states through the Fourteenth Amendment (Pet. App. 66a). After a lengthy trial on the merits, which produced a voluminous factual record on the history and administration of the programs, the district court declared the challenged programs unconstitutional insofar as they involved "the use of premises leased from religious nonpublic schools" (Pet. App. 123a), and enjoined petitioners "from continuing to operate and conduct" those programs (ibid.). Petitioners were unable to obtain a stay of that judgment (Pet. 8), which was affirmed by a divided panel of the court of appeals (Pet. App. 1a-63a). /5/ SUMMARY OF ARGUMENT I. The Shared Time and Community Education programs operated by the School District of the City of Grand Rapids do not violate the Establishment Clause of the First Amendment. That these programs are in part operated in facilities leased from private schools (secular as well as religious) and thereby accommodate the educational needs and convenience of schoolchildren attending private schools does not detract from the challenged programs' secular purpose; nor does it transform the programs into a vehicle for advancing religion or give rise to excessive government entanglement with religion. The Grand Rapids programs therefore meet all the requirements of the three-part Establishment Clause test articulated by the Court in Lemon v. Kurtzman, 403 U.S. 602, 614 (1971). A. It is well established that the states have a legitimate interest in helping to improve the secular education of students attending nonpublic schools. See, e.g., Mueller v. Allen, No. 82-195 (June 29, 1983), slip op. 6-7. There is no room for doubt that the supplemental educational programs at issue here were designed and implemented for purely secular purposes, as the district court and court of appeals below correctly held (Pet. App. 92a, 94a, 21a). B. The primary effect of the Shared Time and Community Education programs is not to advance religion but to improve the secular education of Grand Rapids schoolchildren. The courses taught in these supplemental educational programs are made available by the school district to all schoolchildren, whether they are enrolled in private or in public schools, and without regard to whether a given private school is religious or secular. Any benefits that might flow to religiously-oriented schools are "indirect, remote and incidental" and, therefore, not prohibited by the Establishment Clause. Lynch v. Donnelly, No. 82-1256 (Mar. 5, 1984), slip op. 13. Moreover, the record evidence -- covering six years of actual operations of these on-premises programs -- demonstrates that the school district has, in fact, been successful in providing secular supplemental instruction without in the least advancing the cause of religion. Although the beneficiaries of these programs include students who attend religiously affiliated schools, it is the schoolchildren -- and not the private schools -- who benefit. C. The Shared Time and Community Education programs do not foster excessive government entanglement with religion. These programs are controlled and supervised entirely by the public school system. They are not seriously susceptible to diversion -- and in fact have never in any way been diverted -- to religious purposes. The programs occasion only minimal and routine administrative contacts between school district and religious school authorities. Whatever potential dangers of administrative entanglement could be feared or imagined under these circumstances, the six-year factual record of actual program operations documented in this case shows that they have not materialized in Grand Rapids. II. The federal Title I program shares many features of the Shared Time and Community Education programs, but it also has significant differences. Because no program funded under Title I is at issue in this case, there is no occasion here to defend its constitutionality. But the Court's decision in this case is, nevertheless, likely to affect the Title I cases pending in the lower federal courts. We therefore take this opportunity to provide a general description of the Title I program design for purposes of comparison with the two Grand Rapids programs challenged in this case. ARGUMENT I. THE USE OF PUBLIC SCHOOL TEACHERS TO PROVIDE SHARED TIME AND COMMUNITY EDUCATION SERVICES TO CHILDREN IN LEASED CLASSROOMS ON PRIVATE SCHOOL PREMISES DOES NOT VIOLATE THE ESTABLISHMENT CLAUSE Federal, state, and local educational authorities unquestionably have a legitimate interest in providing to all schoolchildren, in nonpublic as well as public schools, a "fertile educational environment" (Wolman v. Walter, 433 U.S. 229, 236 (1977)) and an "ample opportunity to develop to the fullest their intellectual capacities" (Meek v. Pittenger, 421 U.S. 349, 352 n.2 (1975)). Accordingly, diverse programs such as Title I at the federal level, and Shared Time and Community Education at the state and local level in Michigan, have been established to provide secular remedial and enrichment courses, not otherwise available, to students attending both public and nonpublic schools, under conditions strictly controlled and supervised by public school authorities. There are, undoubtedly, persons who view all private schooling as a threat to public education, and oppose, in principle, any services or assistance to private school children that might indirectly make alternatives to public schools more affordable or attractive. As a matter of policy, to be decided by Congress, legislatures, and school boards, theirs is a legitimate position, at least insofar as it does not interfere with the constitutional rights of parents to choose private schooling for their children. See Pierce v. Society of Sisters, 268 U.S. 510 (1925). This Court has, however, consistently rejected attempts to use the Establishment Clause for the purpose of protecting public schools from private alternatives. E.g., Mueller v. Allen, No. 82-195 (June 29, 1983); Wolman v. Walter, supra; Meek v. Pittenger, supra. Merely because "children are helped" to attend nonpublic schools (Everson v. Board of Education, 330 U.S. 1, 17 (1947)), or because private religious schools may derive an "attenuated financial benefit" (Mueller v. Allen, slip op. 11), does not make a program of assistance to private school students, for that reason alone, constitutionally invalid. See Lynch v. Donnelly, No. 82-1256 (Mar. 5, 1984), slip op. 13; Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 771 (1973). Indeed, the Religion Clauses of the First Amendment point in the opposite direction. This nation's "traditions and constitutional underpinnings rest on and encourage diversity and pluralism in all areas" (Lynch v. Donnelly, slip op. 8), including education. See Pierce v. Society of Sisters, supra. The secular approach and atmosphere of the public schools (see, e.g., Stone v. Graham, 449 U.S. 39 (1980)), is available to all; however, many parents and children prefer (and some feel impelled as a matter of religious conviction to seek out) schools where religious truths, as they understand them, are incorporated into the curriculum. This has been particularly true of adherents to faiths outside the mainstream of Protestant Christianity, for whom religious schools have been an important means of maintaining relgious identity. Thus, religious (as well as secular) alternatives to public education are tolerated -- even welcomed -- as part of our pluralistic heritage. If the government then wishes to enrich and enhance the education available to all, the challenge is to find a means to do so without conferring a direct or substantial benefit on, or becoming excessively entangled with, religious institutions, in violation of the Establishment Clause. This requires a "practical response to the logistical difficulties of extending needed and desired aid to all the children of the community." Wolman v. Walter, 433 U.S. at 247 n.14. This case provides an opportunity for this Court to assess the actual operations and effects of a program which is characteristic of many programs adopted across the country. In this case, unlike others that have reached this Court, /6/ there is an extensive factual record documenting these operations and effects over a period of six years. The facts are "largely undisputed" (Pet. App. 4a, 73a). The Court is therefore in a position to conduct a "careful evaluation of the facts of the particular case" (Wheeler v. Barrera, 417 U.S. 402, 426 (1974)) and assess issues of purpose, effect, and entanglement, not in the abstract, but on the basis of a comprehensive record. It is important to appreciate the practical problems associated with programs that seek to provide supplemental remedial and enrichment courses, not otherwise available, to children attending both public and nonpublic schools. For public school students, the logistics are straightforward: remedial courses are provided by specialists during the regular school day, and enrichment courses are offered on school grounds after regular hours. To reach private school students is more difficult. In this, the Michigan experience with Shared Time and Community Education par-llels the frequent national experience with Title I. In both instances, the decision to provide services on private school premises has been made "only after experimenting with alternative programs," with "discouraging" results. PEARL v. Harris, 489 F. Supp. at 1255. See J.A. 325, 359-360 (comprehensive feasibility study). The success of the programs depends on the active participation -- attendance and attentiveness -- of the students. Many educators testified at trial -- and there was no contrary evidence -- that the most effective means of providing educational services to children is to do so at their regular school. The record in this case makes clear, and the courts below did not dispute, that the challenged programs are offered on the premises of the private schools specifically because on-site instruction is educationally superior -- as well as less costly and easier to administer. J.A. 325. We believe the courts below erred in concluding that the Shared Time and Community Education programs of the School District of the City of Grand Rapids were in violation of the Establishment Clause. In analyzing the challenged programs, we, like the courts below, will employ the familiar three-part test of Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971). That test was developed by this Court in the very context presented in this case: governmental aid to private (including religiously-oriented) schools or schoolchildren. Whatever questions might be raised about the suitability of that test when it is sought to be applied outside its original context (see Lynch v. Donnelly, slip op. 9; Marsh v. Chambers, No. 82-23 (July 5, 1983); Larson v. Valente, 456 U.S. 228 (1982)), the Lemon test, sensitively applied, would seem to furnish an appropriate "framework of analysis" (Nyquist, 413 U.S. at 761 n.5) for governmental programs of assistance to the education of children attending non-public schools. A. The Secular Purpose Of The Grand Rapids Shared Time And Community Education Programs Is Not Disputed And Is Not At Issue The district court found that "(t)he purpose(s) of the Shared Time and Community Education programs are manifestly secular" (Pet. App. 92a), and that the programs were "instigated * * * for purely secular purposes" (Pet. App. 94a). The court of appeals expressly affirmed that finding (Pet. App. 21a). Further review of that finding by this Court is therefore unnecessary. See Branti v. Finkel, 445 U.S. 507, 512 n.6 (1980); see generally Mueller v. Allen, slip op. 5-6. B. The Primary Effect Of The Grand Rapids Shared Time And Community Education Programs Is Neutral; The Programs Do Not Advance Religion This Court has repeatedly rejected interpretations of the Establishment Clause under which any law or program "that confers an 'indirect,' 'remote,' or 'incidental' benefit on (religion) is, for that reason alone, constitutionally invalid." Lynch v. Donnelly, slip op. 13 (brackets in original), quoting Nyquist, 413 U.S. at 771; see also Widmar v. Vincent, 454 U.S. 263, 273-274 (1981); Walz v. Tax Commission, 397 U.S. 664, 671-672, 674-675 (1970); McGowan v. Maryland, 366 U.S. 420, 450 (1961). The approach taken by this Court is reflected in the formulation of the "effects" prong of the three-part test: "The crucial question is not whether some benefit accrues to a religious institution as a consequence of the legislative program, but whether its principal or primary effect advances religion." Tilton v. Richardson, 403 U.S. 672, 679 (1971) (emphasis added). 1. The Primary Effect Of The Programs Is To Enrich The Education Provided To Private School Students, Not To Advance Religion The record evidence covering a period of six years provides a firm basis for concluding that the primary effect of the Grand Rapids programs is to enrich the education provided to children at public and nonpublic schools, and not to advance religion. See J.A. 329-346, 346-353; cf. PEARL v. Harris, 489 F. Supp. at 1258-1265; see also Pet. App. 53a-54a (Krupansky, J., dissenting). The evidence gives no support to the conclusion that the challenged programs promote the sectarian activities of the private schools involved. On the contrary, the evidence establishes that the principal effect of the programs is, as petitioners intended, to help the children themselves. The educational benefits to the children served by these programs are revealed clearly -- even poignantly -- in the district court testimony of educators and parents familiar with the programs. See, e.g., Record vol. VIII B, at 1392-1393. As the district court found, "both of these (challenged programs) do in fact have a positive impact on the participating nonpublic school students" (Pet. App. 95a). The courses involved -- remedial and enrichment mathematics, remedial and enrichment reading, art, music, physical education, and leisure-time activities such as arts and crafts (Pet. App. 7a, 8a, 76a, 77a-78a) -- are themselves purely secular in character. The evidence shows further that the courses have not in any way been used to endorse or inculcate any religious teaching or belief. As the court of appeals acknowledged, "(t)here is no proof that any teacher in either Shared Time or Community Development classes has sought in such classes to indoctrinate any student in accordance with the school's religious persuasion" (Pet. App. 35a). And there is no evidence that the programs have enabled the private schools involved to expand their enrollments /7/ or to cut back on their own course offerings. /8/ In short, the primary effect is to broaden the educational opportunities of schoolchildren, not to benefit religious institutions. 2. The Prorams Provide Comparable Educational Opportunities For All Schoolchildren, Public and Private, On A Neutral Basis If the "primary effect" analysis is not to be reduced to a definitional device for reaching a preordained conclusion, that analysis must be directed to the program as a whole. To "(f)ocus exclusively on the religious component of any activity would inevitably lead to its invalidation under the Establishment Clause." Lynch v. Donnelly, slip op. 10. See Mueller v. Allen, slip op. 8; Widmar v. Vincent, 454 U.S. at 274. A program that assists a broad class of beneficiaries without regard to religion does not violate the Establishment Clause merely because some -- even many -- of the beneficiaries happen to be religious. Mueller v. Allen, slip op. 8; Roemer v. Board of Public Works, 426 U.S. 736, 746 (1976); Nyquist, 413 U.S. at 782 n.38; Tilton v. Richardson, 403 U.S. at 687. The Grand Rapids programs at issue here are designed to benefit all schoolchildren, whether they are enrolled in public or private schools, and whether the private school is secular or religious. This fact is readily apparent with regard to the Community Education program because it is operated in the same fashion, under the same name, in both public and private schools throughout the school district (Pet. App. 8a-10a, 77a-79a). /9/ Although the Shared Time program, as such, is operated under that name only on the leased premises of private schools, it is undisputed that the school district offers the same supplementary courses to public school students as part of the public schools' more varied general curriculum (Pet. App. 6a, 76a). /10/ Thus, the courses offered under both of the challenged programs are made available to all students within the school district on an equal and equitable basis. /11/ 3. The Programs Provide Benefits Directly To The Eligible Schoolchildren This Court has found it "noteworthy that all but one of (its) recent cases invalidating state aid to parochial schools have involved the direct transmission of assistance from the state to the schools themselves." Mueller v. Allen, slip op. 10. /12/ Direct financial aid to parochial schools was cited in Lemon v. Kurtzman, 403 U.S. at 621, as a "factor (that) distinguishes both Everson and Allen, for in both those cases the Court was careful to point out that state aid was provided to the student and his parents -- not to the church-related school." See also Walz v. Tax Commission, 397 U.S. at 675 (noting difficulties presented by "direct money subsidy" program). /13/ The Grand Rapids programs provide no subsidy or other financial assistance to nonpublic schools. /14/ The record demonstrates that effective measures have been taken to ensure that none of the secular services or materials provided to students in connection with these programs can be diverted to any use by the nonpublic schools (J.A. 329-330, 331-342). The record also shows that none of the courses offered through these supplemental programs relieve the private schools of any burdens or responsibilities previously undertaken by or required of them (Pet. App. 7a, 9a, 76a-77a, 78a; see note 8, supra). The benefits that supposedly flow to religiously-oriented schools from these programs are a consequence simply of the fact that students at these schools -- in common with all other students -- have access to some educational programs that would otherwise be unavailable to them. It may be that these schools will, as a consequence, be regarded in a more favorable light by pupils and potential pupils and their parents. /15/ But the same could, of course, be said of any form of aid to nonpublic school students. It this is an impermissible consequence, it is the inexorable conclusion that all such aid must be prohibited -- a conclusion firmly rejected by this Court's cases. See, e.g., Board of Education v. Allen, 392 U.S. 236, 242 (1968); Everson v. Board of Education, 330 U.S. 1, 17 (1947). "The historic purposes of the (Establishment Clause) simply do not encompass th(is) sort of attenuated financial benefit." Mueller v. Allen, slip op. 11. 4. The Decision Below Was Based On Speculation Not Supported By the Record The decision below appears to be based on preconceived notions about aid to parochial schools rather than any actual demonstration that the "primary effect" of the program is to advance religion. The court stated (Pet. App. 40a): The Shared Time and Community Education programs at issue in this case clearly give direct aid to parochial schools in parochial school buildings. By so doing, they also assist those schools in performing their religious missions, in violation of the First Amendment. This simply mischaracterizes the case. The undisputed facts make clear that the programs provided no "direct aid to parochial schools" whatsoever. The programs have the purpose and effect of providing supplemental education to all students. And even the "indirect" benefit to the religious schools is exiguous: being strictly supplementary, the programs relieve the private schools of none of their own educational responsibilities or costs. And being substantially identical in public and private schools, the programs are unlikely to attract students to the private schools. Without identifying any demonstrable -- let alone "primary" -- effect of promoting the "religious mission" of the private schools involved, the court of appeals speculated that the programs "are bound to have had (such) an effect" (Pet. App. 43a) because of their very existence as publicly-funded programs on the premises of religiously-oriented private schools. In effect, the court of appeals adopted the per se rule against on-premises educational services rejected by this Court in Wheeler v. Barrera, 417 U.S. at 426. And in the face of a "flawless record" of neutral administration (Pet. App. 56a-57a (Krupansky, J., dissenting)), merely speculative possibilities of impermissible effect do not provide an adequate basis for a finding of a constitutional violation. As this Court stated in Tilton v. Richardson, 403 U.S. at 679, although "(a) possibility always exists * * * that the legitimate objectives of any law or legislative program may be subverted by conscious design or lax enforcement * * * judicial concern * * * cannot, standing alone, warrant striking down a statute as unconstitutional." See also Marsh v. Chambers, slip op. 11; Committee for Public Education & Religious Liberty v. Regan, 444 U.S. 646, 662, 656 (1980); Wolman v. Walter, 433 U.S. at 242. /16/ We suspect that the decision below was based more on the court of appeals' professed concern for "public education as a major aspect of the American goal of equality of opportunity" (Pet. App. 40a) than on the Constitution's prohibition of an established religion. The court of appeals was plainly moved by its fears that these programs might expand in the future. Finding state legislatures "in many states" to be "vulnerable to pressures from religious constituencies," the court of appeals speculated that "(u)nder such pressures legislatures can be expected" to adopt programs that would prove unconstitutional in effect (Pet. App. 40a). In substance, the court of appeals adopted the "no aid" interpretation of the Establishment Clause, despite its rejection by this Court, on the basis of a speculative distrust of legislatures. That is, of course, an entirely inappropriate basis for a federal court to invalidate a state program under the Constitution. In fact, there is a deep inconsistency in the court of appeals' holding -- that enriching the educational opportunities of private school students is a legitimate public purpose, but that, if successfully accomplished, the effect of so doing is unconstitutional. The "purpose" and "effect" inquiries, properly understood, are not so strangely inharmonious; they are the subjective and objective aspects of the same inquiry. Lynch v. Donnelly, slip op. 3-4 (O'Connor, J., concurring). Here the purpose of the program is legitimate, the means selected are suited to that purpose, and the consequence of the program is to secure that purpose. In order to find such a program repugnant to the Constitution, some unintended consequence must surely be specifically identified, one that is substantial enough so that it can fairly be said to outweigh the program's intended purposes and thus to constitute its "primary" effect. The court of appeals plainly has not identified anything of the sort. The "primary effect" of providing Shared Time and Community Education courses on private school premises is that the intended beneficiaries of these programs can better take advantage of them. The programs are not, therefore, repugnant to the First Amendment. C. The Grand Rapids Shared Time And Community Education Programs Do Not Foster Excessive Government Entanglement With Religion 1. The Grand Rapids Programs Ahve Not Occasioned Excessive Administrative Entanglement With Religion Excessive administrative entanglement with religion is likely to occur in connection with a government program that requires "comprehensive, discriminating and continuing state surveillance" over religious authorities. Lemon v. Kurtzman, 403 U.S. at 619. To determine whether such entanglement is involved, it is usually necessary to "examine the character and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and the religious authority" (id. at 615). In this case, we submit that the question of the "character and purposes of the institutions that are benefited" does not arise at all: the Grand Rapids programs benefit schoolchildren, not schools. Insofar as it can be said that there are incidental benefits conferred on participating schools, there is no dispute about their "character and purposes": both public and private schools participate; the latter include one purely secular private school and schools of five religious denominations. The programs are open to all. /17/ The "nature of the aid" provided here -- providing certain supplemental educational programs -- strongly militates against a finding of excessive church-state entanglement. The courses themselves are strictly secular, and the school district has adopted, publicized, and enforced guidelines to preserve the independence of the programs from any influence or control by private school authorities. J.A. 184-185, 214, 329, 333, 335, 338, 344-345. Although within the premises of the nonpublic schools involved, the Shared Time and Community Education classrooms are leased by the public school district, are designated as public school classrooms, are exclusively under the control of the public school district, and are free of any religious symbols or artifacts. The Shared Time instructors testified, without exception, that they have never felt any religious pressure or influence exerted on them by the private school teachers or officials and that any religious "atmosphere" in the private schools has had "absolutely no impact or effect" on their teaching (J.A. 331). The Shared Time instructors are full-time public school teachers, especialists in their field, who travel from school to school, both public and private. They are trained, supervised, and evaluated solely by public school authorities, without involvement by private school authorities (J.A. 328-340). The Community Education instructors are generally regular members of the faculty of the school, public or private, at which they teach, but, for purposes of Community Education, are hired, paid, assigned, supervised, and evaluated solely by the public school district (J.A. 350-352). The public school district exercises no authority over these teachers during the regular school day, and the private school exercises no authority over them during Community Education. The record provides no support for -- and indeed affirmatively rebuts -- the inference that, because of their regular employment by a religious institution, these teachers have required extensive monitoring or have allowed their courses (model building, rug hooking, arts and crafts, and the like) to lose their secular character. /18/ Most importantly, "the resulting relationship between the government and the religious authority" in this case is not of the kind that has led or could be expected to lead to excessive administrative entanglement. This relationship takes the form of the routine and minor administrative contacts occasioned by disseminating information about the programs, processing requests for services, and resolving scheduling problems (Pet. App. 118a-119a). Such minimal contacts with the operation of the nonpublic schools scarcely reflect the degree of intrusiveness by governmental authorities that this Court has identified as amounting to impermissible entanglement. See Mueller v. Allen, slip op. 14; Committee for Public Education v. Regan, 444 U.S. at 660-661; Walz v. Tax Commission, 397 U.S. at 674-676. /19/ The only administrative entanglement specifically relied upon by the court of appeals was the need to monitor the activities of Shared Time and Community Education teachers to ensure that they do not promote the religious mission of the private schools involved (Pet. App. 43a). Even as to this, however, the basis for the court's concern was pure speculation -- indeed, speculation of a particularly in appropriate sort. The court expressly acknowledged that the challenged programs have not in actual practice entailed "significant monitoring" (ibid.) -- and that there nonetheless is no evidence that any teacher in the programs had sought to use the programs to promote his religion (id. at 35a). This finding that extensive monitoring has not been necessary to prevent abuses ordinarily would suffice to eliminate the "monitoring" problem from the case. But the court of appeals observed that the religious organizations currently involved in the program "have reputations for social responsibility" (id. at 43a), and warned that "(m)any less orthodox religious sects would be equally entitled to public funds /20/ from those programs" (ibid.). The court predicted that "(m)any of them," as a result of their "religious zeal and economic need," might act less responsibly than the current participants (ibid.). It should go without saying that invidious stereotypes about hypothetical "less orthodox religious sects" should play no part in constitutional adjudication. Cf. Larson v. Valente, 456 U.S. 228 (1982). In the absence of any actual findings of excessive entanglement, the Grand Rapids programs should have been upheld. 2. The Court's Finding Of "Political Divisiveness" Is Neither Legally Nor Factually Supportable One of the major emphases of the court of appeals was on the supposed "political divisiveness" of the Shared Time and Community Education programs. See Pet. App. 43a-44a. The court's reasoning on this point should not be sustained. The concept of "political divisiveness" derives from the observation in Lemon v. Kurtzman, 403 U.S. at 622, that "political division along religious lines was one of the principal evils against which the First Amendment was intended to protect." But "this Court has not held that political divisiveness alone can serve to invalidate otherwise permissible conduct." Lynch v. Donnelly, slip op. 14. Although the existence of political divisiveness may suggest that the program at issue may be suspect under other parts of the Establishment Clause inquiry, it is not "an independent test of constitutionality." Slip op. 3 (O'Connor, J., concurring). This is for sound reasons. As Justice O'Connor has pointed out, "(g)uessing the potential for political divisiveness inherent in a government practice is simply too speculative an enterprise." Lynch v. Donnelly, slip op. 3 (concurring opinion). Moreover, it is awkward for the judiciary to inquire into, and perhaps discourage, the "uninhibited, robust, and wide-open" debate on public issues characteristic of our political system. See New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). It may also be difficult to know which side in a religiously-related dispute should prevail when a court determines that the political divisiveness of the controversy is too great to permit resolution by elected officials. In this case, for example, it may be thought more "divisive" to deny schoolchildren who attend religiously-affiliated schools access to supplementary educational services otherwise available than it would be to extend the services neutrally to all. /21/ In addition, the court of appeals failed to recognize that when a "case does not involve a direct subsidy to church-sponsored schools or colleges, or other religious institutions, * * * no inquiry into potential political divisiveness is even called for." Lynch v. Donnelly, slip op. 14 (citation omitted); see Mueller v. Allen, slip op. 15 n.11. Further, the six-year history of these programs in Grand Rapids has produced no evidence of significant political divisiveness (Pet. App. 56a). /22/ II. THE VALIDITY OF THE FEDERAL TITLE I PROGRAM, WHICH IS A COMPREHENSIVE EDUCATIONAL ENRICHMENT PROGRAM FOR THE BENEFIT OF DISADVANTAGED PUBLIC AND PRIVATE SCHOOLCHILDREN, PRESENTS INDEPENDENT ISSUES THAT NEED NOT BE ADDRESSED IN THIS CASE This case does not itself involve any program funded under Title I (see note 3, supra). There is therefore no need to describe the nationwide Title I program in full detail or to engage in extended discussion of its constitutionality. Nevertheless, because the Court's decision in this case will unavoidably carry implications for judicial treatment of the pending Title I suits, we think it appropriate to provide a description of the general Title I program design for purposes of comparison with the two Grand Rapids programs challenged in this case. See also Wheeler v. Barrera, supra (containing some general description of Title I program); PEARL v. Harris, supra (describing New York City Title I program). /23/ A. Title I, along with other portions of the Elementary and Secondary Education Act of 1965, was designed to "'bring better education to millions of disadvantaged youth who need it most.'" S. Rep. 146, 89th Cong., 1st Sess. 5 (1965) (citation omitted). See 20 U.S.C. (Supp. II 1978) 2701; 20 U.S.C. 3801 (declarations of congressional policy under former Title I and under Chapter 1 successor program). To carry out this congressional policy, Title I (now Chapter 1) provides for federal grants to state educational agencies (20 U.S.C. 3802), which, in turn, distribute funds to the eligible local educational agencies that have submitted appropriate applications for approval (20 U.S.C. 3805). A student's eligibility for participation in a Title I program is determined by reference to neutral criteria based on the concentration of poverty-level families in the student's particular area of residence and on the student's educational deficiencies. See 20 U.S.C. 3805(b). Title I funds may be used only to supplement, and in no case to supplant, nonfederal funds that otherwise would be expended for the participating children (20 U.S.C. 3807(b)). Educational services that may be made available under Title I include remedial reading, remedial mathematics, English as a second language, diagnostic testing, and clinical and guidance programs. Congress made clear, in passing this legislation, that a student was not to be excluded from the benefits of Title I merely because of attendance at private, rather than public, school. See Wheeler v. Barrera, 417 U.S. at 406 (emphasis in original; footnote omitted) ("since the legislative aim (of Title I) was to provide needed assistance to educationally deprived children rather than to specific schools, it was necessary to include eligible private school children among the beneficiaries of the Act"). Congress thus specifically provided (20 U.S.C. 3806(a)): To the extent consistent with the number of educationally deprived children in the school district of the local educational agency who are enrolled in private elementary and secondary schools, such agency shall make provisions for special educational services and arrangements * * * in which such children can participate * * *. Expenditures for educational services and arrangements pursuant to this section for educationally deprived children in private schools shall be equal (taking into account the number of children to be served and the special educational needs of such children) to expenditures for children enrolled in the public schools of the local educational agency. The particulars of the Title I program for eligible private school students were left by Congress to the local educational agencies, but it was clear that an equitable program involving proportionately equal expenditures is required (S. Rep. 146, supra, at 11-12). With regard to the question of making public school teachers available in private school facilities, Congress indicated that such a program could be proper, but "only to provide specialized services which contribute particularly to meeting the special educational needs of educationally deprived children (such as therapeutic, remedial or welfare services) and only where such specialized services are not normally provided by the nonpublic school" (S. Rep. 146, supra, at 12). See also 111 Cong. Rec. 5747-5748 (1965) (remarks of Reps. Carey and Perkins, managers of the House bill). Federal programs, such as Title I, differ in one fundamental respect from state aid programs for private school children. Unlike the states, the federal government does not operate a school system available to all school-age children. Therefore, in order to provide services on a neutral and equitable basis for all schoolchildren, the federal government must include children attending private, as well as public, schools in programs such as Title I. B. The Department of Education's regulations implementing the Title I program (now Chapter 1) are set forth in 34 C.F.R. Pt. 200. Several of these regulations specifically address participation in Title I programs by educationally deprived children in private schools. See 34 C.F.R. 200.70-200.85. The regulations require that local educational agencies (known as "LEAs") shall provide eligible private schoolchildren with Title I services that "assure participation on an equitable basis" (34 C.F.R. 200.70(a)(1)). The LEA must allow such children "to participate in a manner that is consistent with the(ir) number and special educational needs" (34 C.F.R. 200.70 (b)). While so doing, however, the LEA must "exercise administrative direction and control over (Title I) funds and property" used in such programs (34 C.F.R. 200.70 (c)). Moreover, the Title I services to private school children must be provided either by public employees or by contract with a person or organization "independent of the private school and of any religious organizations" (34 C.F.R. 200.70(d)(1)). /24/ Several regulatory provisions are specifically designed to effectuate the congressional intent that no financial aid or services be provided "to a private institution," as distinguished from the educationally deprived schoolchildren who attend a private institution. S. Rep. 146, supra, at 11. Thus, one provision stipulates that Title I funds may be used only "to provide services that supplement the level of services" that would otherwise be available to the eligible private school children (34 C.F.R. 200.72 (a)). /25/ Another provision specifies that Title I funds may be used only "to meet the special educational needs of children in private schools" and not to meet any "needs of the private schools" themselves or any "general needs" of the private school children (34 C.F.R. 200.72(b), (1) and (2)). Although the LEAs are permitted to make public employees available on the premises of private schools, this approach may be used only as "necessary to provide equitable (Title I) services" and only "(i)f those services are not normally provided by the private school" (34 C.F.R. 200.73(a) and (b); cf. S. Rep. 146, supra, at 12). Moreover, "a public agency must keep title to and exercise continuing administrative control of all equipment and supplies that the LEA acquires with (Title I) funds" (34 C.F.R. 200.74(a); cf. S. Rep. 146, supra, at 12). /26/ Finally, the regulations expressly prohibit use of Title I funds "for repairs, minor remodeling, or construction of private school facilities" (34 C.F.R. 200.75; cf. S. Rep. 146, supra, at 11). /27/ C. As noted above, several cases challenging the Title I program are now pending in the lower courts. In our view, and in accord with Wheeler v. Barrera, supra, the decision in the present case should be limited to the facts and specific issues presented by the two Grand Rapids programs. Although a decision in favor of respondents would affect resolution of several of the legal issues that have arisen in connection with Title I, the lower courts in the Title I cases should not be foreclosed from addressing the analogous but distinct factual and legal issues presented there. CONCLUSION The judgment of the court of appeals should be reversed. Respectfully submitted. REX E. LEE Solicitor General RICHARD K. WILLARD Acting Assistant Attorney General PAUL M. BATOR Deputy Solicitor General CAROLYN B. KUHL Deputy Assistant Attorney General MICHAEL W. MCCONNELL Assistant to the Solicitor General ANTHONY J. STEINMEYER MICHAEL JAY SINGER Attorneys MAY 1984 /1/ Effective July 1, 1982, Title I was superseded by Chapter 1 of the Education Consolidation and Improvement Act of 1981, Pub. L. No. 97-35, 95 Stat. 464, codified at 20 U.S.C. 3801 et seq. Chapter 1's major objective is to continue to provide federal financial assistance to meet the special educational needs of the educationally deprived children served under Title I while, at the same time, eliminating burdensome and unnecessary federal supervision, direction, and control. See 20 U.S.C. 3801. Although Chapter 1 generally contains fewer and less restrictive program requirements than Title I, the provisions concerning the participation of children in private schools are virtually identical. Compare 20 U.S.C. (Supp. II 1978) 2740 (former Title I provision) with 20 U.S.C. 3806 (current Chapter 1 provision). Moreover, Chapter 1, at 20 U.S.C. 3803, expressly incorporates by reference several sections from Title I, as follows: 20 U.S.C. (Supp. II 1978) 2711-2713, 2721-2722, 2761-2763, 2771-2772, 2781-2783, 2791-2792, 2841-2844, 2853-2854. Accordingly, the government in this brief will continue to refer to this federal program by its familiar Title I name, but we will refer to the current Chapter 1 provisions where appropraite. /2/ In addition, the government, in its Brief for the United States as Amicus Curiae at 27-36, Wheeler v. Barrera, 417 U.S. 402 (1974), argued that the use of public school teachers to provide Title I remedial educational services to educationally deprived children on private school premises would not violate the Establishment Clause of the First Amendment. /3/ The parties entered a stipulation, approved by the district court, expressly providing that "the scope of the instant litigation does not include any claim by plaintiffs which challenges the constitutionality of the Title I Program of the Board of Education of the Grand Rapids Public Schools under the Elementary and Secondary Education Act of 1965" (J.A. 30-31). /4/ The exception was a Shared Time physical education course in secondary school (Pet. App. 7a, 77a). The district court's judgment against the continuation of that course was not appealed (J.A. 38-39). /5/ The Shared Time program has been upheld by Michigan state courts under both the Michigan and United States Constitutions. Traverse City School District v. Attorney General, 384 Mich. 390, 185 N.W.2d 9 (1971); Citizens to Advance Public Education v. State Superintendent of Public Instruction, 65 Mich. App. 168, 237 N.W.2d 232 (1975), leave to appeal denied, 397 Mich. 854 (1976). /6/ E.g., Wolman v. Walter, supra; Meek v. Pittenger, supra; Wheeler v. Barrera, 417 U.S. 402 (1974). /7/ The percentage of school age children attending nonpublic schools in the Grand Rapids area remained constant (within 1% of 30%) for the ten year period from 1971 to 1981. The institution of the on-premises Shared Time and Community Education programs in 1976 thus had no discernible effect on enrollments. J.A. 215-221, 355-357. /8/ The courts below acknowledged that none of the challenged courses would otherwise be available to private school students, and that the courses are not substitutes for private school offerings (Pet. App. 7a, 9a, 77a, 78a; see J.A. 109, 138, 146, 304, 347). Nor are the courses required for graduation (Pet. App. 7a, 8a-9a, 77a, 78a) or required by the State to be offered as part of the basic core curriculum (J.A. 361). /9/ Indeed, another part of the Community Education program, not challenged here, provides enrichment courses for some 35,000 local residents in the evenings at various locations, including factories, senior citizen centers, hospitals, and public and nonpublic schools (J.A. 298). Thus, the benefits extend to a much broader segment of the community even than schoolchildren. /10/ Presumably, the school district could, if it chose, establish a single program -- analogous to the single Community Education program -- that would cover the supplemental courses offered in nonpublic schools under the Shared Time program and in public schools as part of the more varied general curriculum. This hypothetical change in form would serve to highlight the fact that this educational program is offered to all students in the Grand Rapids school district -- not just those who attend the private schools. See Meek v. Pittenger, 421 U.S. at 360 n.8 (Stewart, J.) ("So long as the textbook loan program includes all schoolchildren, those in public as well as those in private schools, it is of no constitutional significance whether the general program is codified in one statute or two."). /11/ We are at a loss to understand why the district court concluded that "(t)he challenged programs impact upon a very narrow religious class of beneficiaries" (Pet. App. 108a), that the program "directly benefits nonpublic school students * * * while at the same time it excludes members of the public at large" (ibid.), and that "the beneficiaries are wholly designated on the basis of religion" (id. at 109a). As the "largely undisputed" facts (id. at 73a) clearly show, the programs are open to participation by all schoolchildren, totally without regard to religion, in both public and private schools. These inexplicable statements by the district court, which are contradicted by that court's own findings of fact, were not relied on by the court of appeals, though they were quoted (Pet. App. 23a-24a). In fact, the court of appeals agreed that the challenged programs provided supplies and services "to all schools, including parochial schools" (id. at 40a). /12/ The one exception is Nyquist, which involved a government aid program designed exclusively for the benefit of parents with children in nonpublic schools rather than a general program for the benefit of all schoolchildren. /13/ Of course, the presence of even a direct governmental subsidy to a religiously-oriented school is not necessarily fatal to the constitutionality of a government aid program. See Committee for Public Education & Religious Liberty v. Regan, 444 U.S. 646 (1980); Roemer v. Board of Public Works, supra; Tilton v. Richardson, supra. Cf. Marsh v. Chambers, supra, (upholding constitutionality of direct government payments to legislative chaplains); Bradfield v. Roberts, 175 U.S. 291 (1899) (upholding constitutionality of federal aid to hospitals operated by a religious order). /14/ The school district does, however, pay rent for use of leased facilities (Pet. App. 5a, 74a). The rent is paid for value received, and does not constitute a subsidy to the lessors (J.A. 324). See Committee for Public Education v. Regan, 444 U.S. at 657-659. Neither the district court nor the court of appeals relied on the rental payments as a basis for their findings of unconstitutionality. Cf. State ex rel. School District of Hartington v. Nebraska State Board of Education, 188 Neb. 1, 195 N.W.2d 161, cert. denied, 409 U.S. 921 (1972) (Title I leasing arrangement with Roman Catholic school held constitutionally permissible). /15/ The court of appeals also suggested that a teacher's "effective teaching in the Shared Time or Community Education class may so impress the student as to become a role model" (Pet. App. 42a) -- thus having the effect of furthering that teacher's religious ministry. But this argument surely proves too much. Any public school teacher -- whether part-time or full-time -- who is personally devout, and also an effective teacher, may become something of a role model for the children. Under the court of appeals' reasoning, his very effectiveness as a teacher would be cause for constitutional concern, even though he may in no way have used his position to inculcate his religious beliefs. In any event, the findings here demonstrate simply that "a well known teacher able to attract students is essential to the establishment of a successful Community Education program" (Pet. App. 9a, 78a). Thus, the primary effect of the arrangement is that the popularity of a private school teacher is exploited by Community Education to attract students to its programs. And none of this has any bearing on the Shared Time program, which uses full-time public school teachers. /16/ The relevant portions of Meek v. Pittenger, supra, did not address the "effects" prong of the Lemon analysis, but focused instead on the entanglement question (see 421 U.S. at 369). The district court's reliance on Meek for its analysis of the challenged programs' primary effect (Pet. App. 99a-102a) is therefore misplaced. /17/ The Grand Rapids Baptist Academy, which operates four elementary schools and one high school, refuses to participate in the challenged programs because "it cannot live with the requisite loss of control" (J.A. 373). /18/ Some teachers involved in the programs -- perhaps especially those also employed by religiously-oriented schools -- will presumably be personally devout. It cannot be presumed, however, that devout individuals are disabled from service as part-time (or full-time) public school teachers because of a supposed inability to comply with secular requirements. So long as a teacher is subject exclusively to public supervision and control in connection with his public duties, his religious affiliation or outside employment should not be deemed evidence of unfitness to teach secular subjects in a public school program. Cf. McDaniel v. Paty, 435 U.S. 618 (1978). /19/ Meek v. Pittenger, supra, does not govern this case. In Meek, a state program of aid to private schools was challenged on its face as soon as it was enacted, and was struck down by this Court because there were insufficient safeguards against the possibility of excessive entanglements. Here, by contrast, the challenged programs were carefully designed to avoid church-state contacts or friction, and the record demonstrates that the potential problems foreseen by this Court in Meek have not materialized. See PEARL v. Harris, 489 F. Supp. at 1265, 1267, 1269. On this record -- entirely different from that in Meek -- the court of appeals erred in treating Meek as a per se holding that "any aid to a sectarian school is suspect since its religious teaching is so pervasively intermixed with each and every one of its activities" -- an interpretation this Court rejected in Committee for Public Education v. Regan, 444 U.S. at 661. See also Wolman v. Walter, 433 U.S. at 247 (upholding a program where "the danger perceived in Meek (did) not arise"); State ex rel. School District of Hartington v. Nebraska State Board of Education, supra. /20/ We do not know what "public funds" the court of appeals was referring to. No public funds other than some rental payments go to religious institutions under the challenged programs. The rents themselves are not otherwise discussed by the court of appeals and do not appear to be a basis for its decision. See note 14, supra. /21/ Ironically, the courts below cited as examples of "political divisiveness" the fact that the school board in millage elections and candidates in school board elections have been known to publicize the Shared Time and Community Education programs as a means of broadening the base of support for school taxes or for their candidacies (Pet. App. 26a-29a, 111a-114a). While the district court could be correct that "the spectre of Board candidates dividing voters over the (Shared Time and Community Education programs) haunts the political process" (id. at 114a), this phenomenon might as easily be interpreted as evidence that the challenged programs have wide popular appeal -- that they decrease, rather than increase, political divisiveness over local educational issues. See J.A. 357-358. /22/ This litigation must surely not be allowed to serve as evidence of political strife. "A litigant cannot, by the very act of commencing a lawsuit, * * * create the appearance of divisiveness and then exploit it as evidence of entanglement." Lynch v. Donnelly, slip op. 15. /23/ Both petitioners (Pet. 26) and respondents (Resp. Br. in Opp. 5-6) readily acknowledge that there are "important differences" (id. at 6) between Title I and the Grand Rapids programs. /24/ In this respect, the Title I program differs from the Grand Rapids Community Education program. /25/ In this respect, the Title I program is similar to the challenged programs here. See page 13 & note 8, 16, supra. /26/ The challenged programs here have a similar policy. J.S. 341-342. /27/ According to the most recent data available in the record in Felton V. Secretary, United States Department of Education, supra, over $3 billion ($3,104,317,000) was appropriated for Title I program expenditures in Fiscal Year 1982. During the 1980-1981 school year, Title I services were provided to 5,170,935 public school children and 192,994 private schools. And approximately $105,200,000-about 4% of the total Fiscal Year 1980 appropriation-was expended on Title I services for children attending private schools.