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Nos. 98-1648 & 98-1671: Mitchell v. Helms and Picard v. Helms | |||||||||||
No. 98-1468 and 98-1671
2. Respondents argue (Br. in Opp. 18) that the anti- supplantation rule
of Title VI, see 20 U.S.C. 7371(b), requiring that funds made available
under the federal program supplement, and not supplant, other resources,
applies only to the local educational agency (LEA) that receives the federal
funds, and not to private schools that are lent equipment purchased with
Title VI funds by the LEA. The statute, however, is framed generally to
prohibit the use of Title VI funds by LEAs that would supplant non-federal
resources in any way. Title VI requires LEAs to use and allocate Title VI
funds "only so as to supplement and, to the extent practical, increase
the level of funds that would, in the absence of Federal funds made available
under this part, be made available from non-Federal sources, and in no case
* * * to supplant funds from non-Federal sources." Ibid. The statute's
prohibition against the use of federal funds to supplant "non-Federal
sources" is not limited to the supplantation of state and local governmental
sources of funds, as opposed to non-governmental sources of funds. If an
LEA used Title VI funds to provide private schools with equipment that would,
in the absence of federal funds, be made available from any non-federal
sources, including private sources, the anti-supplantation rule would be
violated. 3. Respondents suggest (Br. in Opp. 28) that, notwithstanding the court
of appeals' decision invalidating the loan of instructional equipment and
materials to religious schools in any circumstances, private schoolchildren
may nonetheless participate in Title VI services provided directly to them
by public school officials or contractors. As we have explained, however
(Gov't Resp. 19-20), in many cases this is not a practicable alternative.
Congress has not funded Title VI at a level that would permit the use of
public school instructors to provide Title VI services to private schoolchildren
in many circumstances. Thus, to an overwhelming degree, LEAs ensure the
participation of private schoolchildren in Title VI benefits (as they are
required to do by statute, see 20 U.S.C. 7372(a) and (b)) by lending instructional
equipment and materials to private schools. See Title VI Nat'l Steering
Comm., Elementary and Secondary Education Act (ESEA): Title VI: Innovative
Education Program Strategies, National Compendium of State and Local Activities,
1997-1998 School Year 2.3 (Feb. 1999) (lodged with the Clerk). 4. In our initial brief, we informed the Court (at 2-3 n.1) that the President
would shortly announce proposals for the reauthorization and revision of
the ESEA. The President's legislative proposal was publicly announced on
May 21, 1999. Copies of the proposed legislation and the accompanying section-by-section
analysis have been lodged with the Clerk and served on the parties.
In the Supreme Court of the United States
GUY MITCHELL, ET AL., PETITIONERS
v.
MARY L. HELMS, ET AL.
CECIL J. PICARD, ET AL., PETITIONERS
v.
MARY L. HELMS, ET AL.
ON PETITIONS FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
REPLY BRIEF FOR THE SECRETARY OF EDUCATION
SETH P. WAXMAN
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
In the Supreme Court of the United States
No. 98-1648
GUY MITCHELL, ET AL., PETITIONERS
v.
MARY L. HELMS, ET AL.
No. 98-1671
CECIL J. PICARD, ET AL., PETITIONERS
v.
MARY L. HELMS, ET AL.
ON PETITIONS FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
REPLY BRIEF FOR THE SECRETARY OF EDUCATION
1. Respondents maintain (Br. in Opp. 6, 15)* that the decision of the Fifth
Circuit in this case, striking down the application of Title VI of the Elementary
and Secondary Education Act of 1965 (ESEA), 20 U.S.C. 7301-7373, in Jefferson
Parish, Louisiana, does not conflict with the Ninth Circuit's decision in
Walker v. San Francisco Unified School District, 46 F.3d 1449 (1995), which
upheld the application of Title VI in San Francisco. They assert that the
two programs are distinguishable on their facts in constitutionally significant
ways. Both lower courts in this case, however, found the two programs to
be indistinguishable. See 98-1648 Pet. App. 59a, 107a.
Indeed, although respondents suggest (Br. in Opp. 15) that the San Francisco
Title VI program upheld in Walker was confined to prescreened materials
and locked computer hardware and software, in fact private schools in San
Francisco received "library books, textbooks, videos, overhead projectors,
movie and slide projectors and projection stands, television sets, record
players, cassette recorders, VCRs, video cameras, 'listening centers,' globes
and maps, microscopes and other lab equipment, computer equipment, musical
equipment, stereo systems, and desks and tables." 46 F.3d at 1464.
Although not all of these materials were lent to private schools in every
year, and the program was eventually limited to prescreened library books,
instructional materials, and reference materials, see ibid., the Ninth Circuit's
decision upholding the program was not limited to the latter, more restricted
class of materials. See id. at 1469 n.17 (upholding loan of maps and science
kits, and finding them indistinguishable from textbooks, which may be lent
to students under Board of Education v. Allen, 392 U.S. 236 (1968)).
Further, the Department of Education's regulations implementing the ESEA's
provisions governing the participation of private schoolchildren in federal
programs expressly require that LEAs use Title VI funds "to provide
services that supplement, and in no case supplant, the level of services
that would, in the absence of services provided under [Title VI], be available
to participating children * * * in private schools." 34 C.F.R. 299.8(a).
That regulation is not limited to prohibiting supplantation of services
that would be available to private school children from other public sources,
but also prohibits use of Title VI resources to supplant services that would
be otherwise made available from private resources. Cf. Agostini v. Felton,
521 U.S. 203, 210 (1997) (similar regulation implementing Title I of the
ESEA prohibits supplanting "services already provided by the private
school"). Finally, the State of Louisiana has also applied Title VI's
anti-supplantation requirement to prohibit supplantation of nonfederal resources
by private schools; in its Title VI Guidelines to LEAs, the State recommended
that LEAs require private schools to give assurances, in their applications
for participation in the Title VI program, that resources made available
under Title VI will be used only to supplement, and in no case supplant,
funds available from non-federal sources. See Exh. D-4, at 85, to Gov't
Opp. to Resp. Mot. for Summ. Judg.
As we explained earlier, the President's proposed revision of the ESEA would
not extend Title VI in its current form. However, a revised Title III of
the ESEA, entitled "Technology for Education," would authorize
LEAs and other entities to use federal funds for, among other things, adapting
or expanding existing and new applications of technology in learning environments,
acquiring advanced technologies and access to advanced telecommunications,
and using web-based learning resources. See proposed legislation, at III-49
to III-50, proposing a new ESEA § 3134; see also section-by-section
analysis, at III-18. In addition, a new Title II-A-2 of the ESEA, focusing
on professional development for teachers, would authorize LEAs receiving
federal funds to use funds for the development and acquisition of curricular
materials and other instructional aids, if they are not normally provided
by the LEA or the State as part of the regular instructional program. See
proposed legislation, at II-31, proposing a new ESEA § 2130(11); section-by-section
analysis, at II-1.
Provisions similar to those in the current version of the ESEA, requiring
LEAs to provide for the equitable participation of private schoolchildren
in program benefits, prohibiting the use of federal funds to supplant non-federal
sources, and requiring that all benefits be secular, are also included in
the President's proposed legislation. Title XI of the revised ESEA would
continue in effect, for the new Title II-A-2 and Title III, both the statutory
requirement currently applicable to Title III and Title VI that LEAs provide
benefits under the program to private schoolchildren on an equitable basis,
and also the requirement that any educational services or benefits made
available under those programs, including materials and equipment, be secular,
neutral, and nonideological. See proposed legislation, at XI-18, which would
amend ESEA § 14503, 20 U.S.C. 8893; see also section-by-section analysis,
at XI-8. In addition, both Title II-A-2 and Title III, as revised, would
require that a recipient of federal funds use those funds only to supplement
the funds or resources available from non-federal sources, and not to supplant
those non-federal funds or resources. See proposed legislation, at II-35
and III-10; section-by-section analysis, at II-6 and III-2.
Accordingly, under the proposed revision of the ESEA, federal funds would
be available for programs similar to those currently funded under Title
VI, involving the acquisition and use of computer technology for loan to
schools, including private religious schools. Also, as under the current
Title VI, LEAs would be required to provide for the equitable participation
of private schoolchildren in the benefits of such federal programs, which
must be secular, neutral, and nonideological, and which may not supplant
non-federal funds and resources.
* * * * *
For the foregoing reasons, and for those set forth in our initial brief,
the petitions for a writ of certiorari should be granted.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
MAY 1999
* "Br. in Opp." refers to the brief in opposition to the petition
for a writ of certiorari in No. 98-1648.