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Judge Henry Friendly on the Establishment Clause

Here’s an interesting selection from David Dorsen’s recent superb biography of renowned Second Circuit Judge Henry Friendly. The passage is about the Establishment Clause, with particular reference to the issue of “shared time” remedial education by public school teachers in religious schools and the Supreme Court’s decision Aguilar v. Felton. The passage is neat because it shows the fashion in which an intermediate appellate judge managed hierarchical constraint and substantive preference in crafting a decision. I’ll have some more on this general issue soon, but here’s Dorsen (at 162-63):

[I]n 1984, a time of doctrinal uncertainty and confusing precedents [ed.: when has this not been true?], Friendly wrote the Second Circuit’s opinion in Felton v. Secretary, Dept. of Education, where, when other programs had proven ineffectual, New York City sent public school teachers into nonpublic schools, including religious schools, to provide remedial instruction to educationally deprived children. State law prohibited public school teachers and their supervisors, who were entirely in charge of the program, from involving themselves in religious activities or content. In a suit by taxpayers Friendly said that while he accepted the good faith of the city and the value of the program, the program was unconstitutional: “[T]he Establishment Clause, as it has been interpreted by the Supreme Court, constitutes an insurmountable barrier to the use of federal funds to send public school teachers and other professionals into religious schools to carry on instruction, remedial or otherwise, or to provide clinical and guidance services of the sort at issue here.” His analysis of the Court’s cases

leads inescapably to the conclusion that public funds can be used to afford remedial instruction or related counseling services to students in religious elementary and secondary schools only if such instruction or services are afforded at a neutral site off the premises of the religious school….To be sufficiently certain that public employees, in a program like the present one, will maintain strict religious neutrality, they and the institutions in which they work must be subjected to ‘comprehensive, discriminating and continuing state surveillance.’ This itself is a constitutionally excessive entanglement of church and state.

Precedent did not require a search of the record to find entanglement; the mere possibility was sufficient to reject the program.

Dorsen goes on to note that Friendly’s separationist view of the Establishment Clause (“The Establishment Clause was the most notable constitutional-law area in which Friendly sided with the Supreme Court’s liberal wing”) coincided nicely with what was then the Supreme Court’s prevailing view, so that he could claim plausibly that he was “just following the Supreme Court.” “Nevertheless,” Dorsen writes,

Friendly structured the opinion in a manner that increased the likelihood that the Supreme Court would affirm him. He placed heavy reliance on Meek v. Pittenger, virtually the same as Felton, including on the problem of entanglement, which held unconstitutional a secular textbook program for private schools. He later explained that in writing the opinion as he did his object “was to make the [Supreme] Court face up to the fact that it could not sustain the New York program without overruling, in contrast to distinguishing, Meek v. Pittenger. I thought that this, as well as some of the other considerations developed in the opinion, might give a little pause to Blackmun and Powell about the erosion of the establishment clause.”

If you read through Justice Brennan’s opinion for the Court in Aguilar v. Felton,  you’ll see that he relies heavily on Meek too. And, as Friendly half-predicted, Justice Powell’s concurrence goes on at length not only about Meek, but it also specifically relies on and emphasizes Judge Friendly’s reading of Meek.

It’s also interesting that none of the dissenting opinions in Aguilar distinguished Meek–another very strong point in support of Judge Friendly’s craftsmanship. Justice O’Connor instead wrote that “experience has demonstrated that the analysis in Part V of the Meek opinion is flawed. At the time Meek was decided, thoughtful dissents pointed out the absence of any record support for the notion that public school teachers would attempt to inculcate religion simply because they temporarily occupied a parochial school classroom….[I]t is time to acknowledge that the risk identified in Meek was greatly exaggerated.” Justice Rehnquist’s dissent does not mention Meek at all, presumably because he continued to dissent from it. And Chief Justice Burger explicitly states that he dissents in Aguilar for the same reasons as he dissented in Meek.

Of course, Agostini v. Felton, decided in 1997, overruled Aguilar and Justice O’Connor’s opinion carried the day (5-4): “We have abandoned the presumption in Meek and [School Dist. of Grand Rapids v.] Ball that the placement of public employees on parochial school grounds inevitably results in the impermissible effect of state-sponsored indoctrination or constitutes a symbolic union between government and religion.” But that course reversal only highlights the importance of seeing how a master like Judge Friendly went about his work.