GEORGE CLIFTON EDWARDS, Jr., Chief Judge.

INTRODUCTION

The First Amendment to the Constitution of the United States provides in its first clause: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, . . ." The United States Supreme Court has established that this amendment applies with full force to the various states of the union. Committee for Public Education and Religious Liberty v. Regan, 444 U.S. 646, 100 S.Ct. 840, 63 L.Ed.2d 94 (1980); Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947); Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940).

At the outset, this court recognizes that the State of Michigan, through its legislature and courts, has approved the expenditure of public funds for the purposes described in the statement of facts below. See In Re Proposal C (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); 1976 MICH.PUB.ACT 451, § 331; 1979 MICH.PUB.ACT 94, § 1; MICH.COMP.LAWS ANN. § 380.331 (1976 Supp. 1983); MICH.COMP.LAWS ANN. § 388.1601 (1979 Supp. 1983); MICH.STAT.ANN. § 15.1919(901) (1976 Supp. 1983); MICH. STAT.ANN. § 315.4331 (1979). On complaint, however, it is the responsibility of the federal courts (ultimately, of course, of the Supreme Court of the United States) to determine whether specific tax supported benefits provided by state law violate the establishment clause of the Constitution of the United States.

THE NATURE OF THIS CASE

This is a taxpayers' suit filed by various citizens of the City of Grand Rapids contending that a Shared Time and Community Education program operated by the School District of the City of Grand Rapids in school buildings owned and operated by various religious denominations in Grand Rapids is an unconstitutional "establishment" of religion and its method of operation requires an unconstitutional entanglement of public and religious affairs. The case was heard before District Judge Benjamin Gibson in Grand Rapids, Michigan, in an eight-day trial. After Judge Gibson recused himself, the case was transferred to District Judge Richard Enslen who, by agreement of the parties, decided the case on the basis of transcript testimony and other written documentary evidence which had been submitted to Judge Gibson, 546 F. Supp. 1071.

Judge Enslen dismissed plaintiff Americans United for Separation of Church and State and returned judgment in favor of the individual plaintiffs. A stay application was then filed by appellant before the District Judge. He denied the request. On appeal, this Circuit by majority vote affirmed the denial. A stay application was then filed with Circuit Justice Sandra Day O'Connor and likewise was denied.

On this appeal the following parts of the program are at issue before this court: 1) Shared Time classes at the elementary level, 2) Community Education classes at the elementary level, and 3) one remedial math Shared Time class at the secondary level. All classes concerned in this case were held in classrooms in parochial schools.

Judge Enslen held that the individual plaintiffs have standing to attack these programs under the establishment clause. We agree with his reasoning and result on this issue. See Flast v. Cohen, 392 U.S. 83, 103-06, 88 S.Ct. 1942, 1954-1955, 20 L.Ed.2d 947 (1968); McCollum v. Bd. of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649 (1948); Everson v. Bd. of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947). He also concluded that public tax support for these programs in the parochial schools, in spite of measures taken to eliminate within the specific classrooms both religious teaching and religious symbolism, had an impermissible effect of advancing the various religions involved and resulted in excessive entanglement of government and religion.

STATEMENT OF FACTS

After full briefing and appellate hearing, we have now reviewed the lengthy record and the briefs filed by the respective parties and find that Judge Enslen's statement of facts should be adopted by this court. It follows:

Although the parties, as expected, propose differing interpretations of the facts and urge opposing views of the legal consequences which flow therefrom, the Court, after careful consideration of the entire record, believes that the salient facts underlying this litigation are largely undisputed. The basic facts are set forth below; more detailed facts will be elaborated within that section of the Opinion to which they pertain.

At the outset it should be noted that, throughout this proceeding, the term "shared time" has been used to describe both the Shared Time and the Community Education programs. Individually and collectively both programs have enjoyed a steady growth since their inception. For the 1978-79 school year, there were 9,494 nonpublic school students enrolled in the combined programs; the payment of state school aid funds attributable to those students totalled $1,397,577.20. By the 1981-82 school year, the programs had been extended across county lines, the number of participating nonpublic school students exceeded 11,000, and state aid approached $6,000,000. Besides being offered through the Defendant School District, both programs contain additional common characteristics which will be discussed immediately below. Thereafter, because Shared Time and Community Education are individual and distinct educational programs, they will be discussed separately.

In both the Shared Time and Community Education programs, Defendant School District utilizes a standard form lease to gain access to nonpublic school classrooms and other facilities. The lease specifies a rental charge of $6 per class per week at the elementary schools, and $10 per class per week at the secondary schools. In none of the leases is there any mention of the particular room, space or facility which the instrument governs, and they do not, by their terms, restrict public school employees or students from occupying or using any facility within the nonpublic schools. Indeed, teachers' rooms, libraries, lavatories and similar facilities used in connection with the let premises are generally made available to the School District.

No crucifixes, religious symbols or artifacts may be displayed in leased facilities. Before any nonpublic school facility may be utilized by either of the public school programs, it is necessary to "desanctify" the facility to ensure that no such symbols are exhibited. In many instances, religious symbols or artifacts, or both, exist in adjoining corridors, surrounding rooms, or other facilities used in connection with the leasehold.

The School District requires its instructors to post signs within the class area designating it as a public school classroom. At least one instructor testified that she carried the "public school" sign with her as she moved throughout the nonpublic schools. There are no signs posted outside of the nonpublic schools indicating that public school courses are being offered therein, or that the facilities serve as a public school annex.

Almost without exception, those students attending Shared Time and Community Education courses in facilities leased from a nonpublic school are the very same students who attend that particular nonpublic school during the regular school day. Thus, there is a virtual identity between students receiving Shared Time or Community Education instruction at any given nonpublic school and the students regularly attending that nonpublic school.

Shared Time and Community Education instruction involves 470 full and part-time teachers. Every Shared Time instructor is employed in accordance with the ordinary hiring procedures adopted by the School District for the City of Grand Rapids. A significant portion of the Shared Time instructors previously taught in nonpublic schools, and many of those had been assigned to the same nonpublic school where they were previously employed. The majority of Community Education offerings on facilities leased from a nonpublic school are taught by instructors employed full time by the very same nonpublic school.

Shared Time is a program wherein the school district offers substantive courses from its general curriculum to nonpublic school students during regular school hours. As noted in Traverse City School District v. Attorney General, supra, [384 Mich.] at 407, n. 2 [ 185 N.W.2d 9], such shared time classes have been offered in various Michigan school districts for more than 60 years. In their original form, shared time courses provided public school instruction for nonpublic school pupils at public school sites in subjects widely regarded as being secular. Typical shared time course offerings included mathematics, reading, physical education and art. Perhaps the most striking difference between the Shared Time program at issue, and the prototypical program is that the instant arrangement is conducted entirely within the participating nonpublic schools in facilities leased by the School District. This Grand Rapids variation on the shared time arrangement was initiated in 1976, following a Michigan Court of Appeals decision upholding the constitutionality of shared time instruction on leased premises under conditions of public school control. Citizens to Advance Public Education v. State Superintendent of Public Instruction, supra.

During the 1981-82 academic year, forty-one private schools participated in the Grand Rapids Shared Time program. With the exception of physical education, industrial arts, music and art, the educational opportunities offered through the program are, in the main, supplementary to the core curriculum of the nonpublic schools. The basic Shared Time course titles include: Art, Music, Physical Education, Industrial Arts, Educational Park, Remedial and Enrichment Mathematics, and Remedial and Enrichment Reading. Various other courses have been offered through Shared Time instruction; they include the following: Humanities, Language Arts, Home Economics, Science, Spanish, French, Latin, Business, Social Studies, Yearbook, Calculus, Creative Writing, Psychology, Journalism, Criminology, and Advanced Biology. The specific courses available through the elementary level Shared Time programs would not otherwise be available in any of the nonpublic schools, and are not required for graduation or progression to the next grade. The participating private secondary schools, however, require for graduation a course in physical education. Such courses are offered at these schools only on a Shared Time basis.

Notwithstanding the numerous Shared Time courses, the amount of time in which the average nonpublic school student receives such instruction is a relatively small portion of that student's total educational experience. There was testimony that ten percent of any given nonpublic school student's time during the academic year would consist of Shared Time instruction. Typically, a nonpublic school student does not participate in every Shared Time course offered at his school.

In the early 1970's, the School District of the City of Grand Rapids instituted the Community Education program in the Grand Rapids Public Schools. Beginning in approximately 1975, that program, which offers to students a diverse array of educational and other enrichment opportunities, was, offered for the first time, at facilities leased from those nonpublic schools which elected to participate. Whenever offered, Community Education courses are taught by Grand Rapids public school employees under the supervision and control of the public schools. Classes offered at nonpublic school sites are now, and have always been, conducted in facilities leased from the participating private institutions.

Unlike Shared Time, the Community Education offerings at issue are scheduled outside of regular school hours. Participating schools, especially those at the elementary level, host "after school" or "leisure time" Community Education courses which, as the name implies, commence at the conclusion of the regular school day. Additionally, at the participating nonpublic high schools, Community Education courses are offered immediately preceding the regular school day, during the "zero hour." Many such "zero hour" classes offer substantive rather than enrichment courses; indeed, certain of the secondary level Community Education courses may be taken for credit toward graduation. "Zero hour" courses include: Typing, Business Machines, Computer Programming, Photography, Retailing, Communications, Bookkeeping and Astronomy.

Community Education instruction is completely voluntary and will be offered only in the event that twelve or more students are enrolled. Because of this rule of twelve, a well known teacher able to attract students is essential to the establishment of a successful Community Education program. For that reason, and with respect to Community Education only, the School District accords a preference in hiring to instructors already established with students in the building where the nonpublic course will be offered. Currently, there are over 300 Community Education instructors employed on a part-time basis by the School District of the City of Grand Rapids. The majority of those part-time Community Education instructors are employed full time by the situs school, whether public or private. As a consequence, virtually every Community Education course conducted on facilities leased from nonpublic schools has an instructor otherwise employed full time by the same nonpublic school.

Of the nonpublic schools presently participating in the community Education program, none have ever provided an identical course to their students. In that respect, Community Education courses do not represent substitutes for courses formerly offered at nonpublic schools. Although certain Community Education courses offered at nonpublic school sites are not offered at the public schools on a Community Education basis, all Community Education programs are otherwise available at the public schools, usually as a part of their more extensive regular curriculum.

Finally, because a participating nonpublic school's calendar is not necessarily coterminous with that of the public school's, the Defendant School District has attempted to accommodate the nonpublic schools. For example, it rearranges schedules during religious holidays not recognized by the public schools. At the elementary level, Community Education courses span a twelve week term of shorter duration than the regular nonpublic school semester. At the secondary level, all Community Education programs generally follow the public school calendar.

The Nonpublic Schools

Approximately forty of the Grand Rapids area nonpublic schools which have elected to participate in the Shared Time and Community Education programs are, by their own admission, "religiously oriented." The challenged programs have, at one time or another, been offered in facilities rented from 28 Roman Catholic schools, 7 Christian schools, 3 Lutheran schools, 1 Seventh Day Adventist school and 1 Baptist school. For purposes of general discussion, most of those schools can be readily divided on the basis of religious affiliation into three categories, to wit: Roman Catholic, Christian, and Lutheran. Plaintiffs introduced abundant evidence tending to demonstrate that a substantial portion of the function of the participating nonpublic schools' "functions are subsumed in the religious mission. . ." Hunt v. McNair, 413 U.S. 734, 743, 93 S.Ct. 2868, 37 L.Ed.2d 923 (1973).

A. The Catholic Schools

The elementary and secondary Roman Catholic schools participating in the challenged programs provide their 6,233 students with an opportunity to receive religious instruction. Sister Marie Heyda, author of the book Catholic Central and West Catholic High Schools, candidly testified, that the following sentence in her book states the philosophy of education in Catholic schools:

Certainly religion and the values of the spiritual life must always be an integral part of the atmosphere of the Catholic high school for in the modern age they are the only reason for its being. Id. at p. 80. (Emphasis supplied).

The St. Jude School Parent Handbook, contains this typical statement of the philosophy of Catholic education:

A God oriented environment which permeates the total educational program.

* * * * * *

Opportunities to pray, worship and celebrate as members of a Christian community.

A Christian atmosphere which guides and encourages participation in the church's commitment to social justice.

A continuous development of knowledge of the Catholic faith, its traditions, teachings and theology. (Emphasis supplied).

Each of the Catholic schools is governed by its own Board of Education, normally composed of the pastor and lay members, elected by constituents of the parish with which the school is associated. Although there is no such requirement, nearly all Board members are adherents of the Roman Catholic religion.

Typically, on a daily basis the Catholic schools include some form of prayer or religious observance; on a weekly basis they include actual attendance at religious services. Moreover, the affidavit of Ronald J. Cook, Superintendent of Schools for the Roman Catholic Diocese of Grand Rapids, states at paragraph 21 that: ". . . It is the policy of the Grand Rapids Catholic schools ordinarily to require students to attend religious instruction classes and religious services either at the Catholic school or at the church of his own faith if the student is not Catholic." No less than 85 percent of the students and 90 percent of the instructors at the combined schools are Catholic.

B. The Christian Schools

Each of the five elementary and one secondary Christian school is operated by the Grand Rapids Christian School Association, an association composed of parents and others who support Christian education. Membership in the Association is restricted to those who subscribe to a doctrinal Basis. The Basis, which is contained within the Association's Bylaws, provides:

Section 1.3 Basis. The supreme standard of the Association shall be the scriptures of the Old and New Testament, herein confessed to the [sic] infallible Word of God, as these are interpreted in the historic Reformed confessions: The Belgic Confession; Heidelberg Catechism, and Canons of Dort.

Acknowledging that that [sic] these Scriptures, in instructing us of God, ourselves, and God's creation, contain basic principles authoritative and relevant for education, we hold that:

(a) The authority and responsibility for education (sic) children resides in the parents or guardians of the children and not in the state or the church. Parents, however, may delegate their authority to those who can competently carry out this God-given parental right.

(b) The primary aim of a Christian parent is (sic) securing the education of his child should be to give him a Christian education — that is, an education whose goal is to equip the child for living the Christian life as a member of the Christian community in contemporary society.

(c) Christian parents, when delegating the authority for educating their children, should delegate it to those institutions which seek to provide Christian education for the student.

(d) The responsibility for maintaining such institutions rests on the entire Christian community.

(e) The Christ proclaimed in the infallible Scriptures is the Redeemer and Renewer of our entire life, thus also of our teaching and learning. Consequently in a school which seeks to provide a Christian education it is not sufficient that the teachings of Christianity be a separate subject in the curriculum, but the Word of God must be an all-pervading force in the educational program. (Emphasis Supplied).

The Association elects a Board of twelve trustees to operate the schools and make policy decisions. Currently, all twelve trustees are members of the Christian Reformed Church. Article VI of the Bylaws grant to the trustees authority with respect to educational policy:

Section 6.1 Educational Authority. The Board of Trustees of the Association shall have general and plenary authority, oower [sic] and responsibility with respect to the educational policies in its schools, including, without limitation, the following:

(a) To determine and establish the curricula and courses of study to be taught in its schools;

(b) To establish grades and departments in its schools;

(c) To hire and contract with principals, teachers, librarians and other faculity [sic] and staff, and assign such persons to tis [sic] schools;

(d) To specify, purchase and furnish books and other educational materials, supplies and equipment;

* * * * * *

(g) To establish policies for interschool functions and relationships;

(h) To develop, establish and carry into effect plans for the development of Christian education in those areas which are or may be served by the Association.

(i) To make rules and regulations relating in any way to the administrative and educational policies to be followed in its schools.

The evidence established that for the past three school years 88 percent of the students of the Grand Rapids Christian School Association belonged to the Christian Reformed Church or the Reformed Church in America. An informational brochure distributed by Creston-Mayfield Christian School, a member of the Grand Rapids Christian School Association, relates that: "Christian parents who express their commitment to Christian education are welcome to enroll their children. They will be accepted without regard to race, color, national or ethnic origin." The brochure's conspicuous omission of any reference to "religion" is not inadvertent. Indeed, the application form for admission to the Christian School Association requires the parent to either subscribe to the Basis or to agree to have his children taught according to the Basis principles.

The Seymour Christian School Staff Handbook, at section seven, discusses the attributes of a Christian teacher as follows:

A CHRISTIAN TEACHER

1. A Christian teacher is first of all a servant of his Lord and Savior. His concepts of God, man, and the world find their authority in the Bible. His doctrinal stance requires that he interpret his subject matter from a Christian point of view. His emotional maturity, intellectual competency, and spiritual vibrancy is obvious. His task is to teach God's children about God's world in the light in God's word.

* * * * * *

3. The Christian teacher sees his students as image bearers of God who will be active in His Kingdom now and forever. He will use every means available to give his students this perspective. He will be a living example of Christian behavior. He will conspicuously teach Christian virtues. He will promote a Christian sense of values in his classroom by teaching respect for authority, respect for the property of others, desire to cooperate, enthusiasm for work, concern for others, and most importantly, submission to the Lordship of Christ. The teacher will be sensitive to his student's academic and spiritual needs. (Emphasis supplied.)

The majority of instructors employed by the Grand Rapids Christian School Association are members of the Christian Reformed Church.

C. The Lutheran School

The only Lutheran school presently participating in the Shared Time and Community Education programs is Immanuel-St. James Lutheran School. The educational philosophy of that institution is perhaps best expressed in the "Credo on Christian Education" contained within the Immanuel-St. James Lutheran School Handbook:

IMMANUAL-ST. JAMES CREDO ON CHRISTIAN EDUCATION

WE BELIEVE that Christian education is a vital aspect of the Church's mission, commanded by God through the Great Commission.

WE BELIEVE that Christian education is directed toward the total development of people, providing for their spiritual, intellectual, emotional, social and physical needs.

WE BELIEVE that Christian education is a responsibility of all believers toward all people.

WE BELIEVE that the purpose for Christian education is to teach the Christian faith through

(a) instruction in God's word

(b) living in relationships of love and forgiveness.

WE BELIEVE that an effective program of Christian education is based on a distinct theology and determines its curriculum by taking into account current world conditions.

WE BELIEVE that effective education is achieved as quality learning programs relate the Christian faith in every aspect of life.

WE BELIEVE that the family exerts much influence on a child's total education, and that the church must equip adults for their important role in Christian education.

This philosophy is reaffirmed in a section titled: "The Goals of Education", contained in the same booklet which states, in part, that the goals of Lutheran education involve:

1. Leading the child to faith in the Lord Jesus Christ, and keeping him/her in that faith to eternal life in heaven.

2. Helping the child in Christian growth in all relationships of life, such as the family, the Church, the State, the relationship of friendship, of employment and labor, of art and culture.

Immanuel-St. James Lutheran School is a joint effort of the members of Immanuel and St. James Lutheran congregations. The Voters Assemblies of each of these congregations has established a joint Board of Education to direct and conduct the affairs of the school. This joint Board of Education consists of members elected from each participating congregation.

Immanuel-St. James Lutheran School is housed in two separate buildings, located on a site which adjoins a Lutheran church. Prayer and religious instruction are part of the daily curriculum at the school. In addition to the daily formal study of the Lutheran faith and daily devotions, the staff and the pupils assemble on a weekly basis, as well as on days of special religious import, for devotional services. Students in the school are expected to be present during religious instruction and services.

At page 6 of the Immanuel-St. James Lutheran School Handbook there appears a section captioned: "Distinctive Features of Immanuel-St. James Lutheran School", which reads:

1. GOD AND HIS WORD ARE CENTRAL.

The Holy Bible influences all lessons and activities in our Christian Day School. Through Scripture the Holy Spirit works to increase the child's understanding of himself, his purpose, his destiny, and his Lord.

2. THE CHILD RECEIVES THROUGH, (sic) SYSTEMATIC INSTRUCTION IN THE TEACHING OF CHRISTIANITY.

Christian teachers lead the child in daily study of God's word and in prayer and worship. Particular attention is given to clarifying the story of sin and salvation. In addition, the pupil is trained to practice his Christianity. Guided by teachers and fellow pupils, he grows in Christian knowledge, attitude and conduct.

3. THE CHILD RECEIVES A THOROUGH TRAINING IN THE COMMON SCHOOL SUBJECTS.

The child is instructed in all the common school branches of learning, as prescribed by the state. But all such instruction is given from a Christian point of view. The child is thus protected from the dangers of a purely secular schooling.

4. THE CHILD LIVES IN A CHRISTIAN ENVIRONMENT.

The devil constantly seeks to undermine the Christian's faith. The importance of school environment, therefore, is not to be under estimated. True, misunderstandings and incidents of misbehavior and conflict will occur in this school also. But the power of sin is lessened when Christian teachers and children live in intimate relation with their Lord, and in loving concern for one another's growth in holy living.

5. THE CHILD GROWS INTO HIS CHURCH.

More and more active workers in the local congregation and in the church at large are needed. Leaders, pastors, teachers, and lay persons — must be developed to guide the church's work. Members who remain faithful to the Lord, and who are wise stewards of their time, abilities, and possessions, are essential. Immanuel-St. James Lutheran School trains children for just such roles.

With respect to the admission policy, Kraig Johnson, the principal of Immanuel-St. James, candidly admitted that preference is given to members of the Lutheran faith. In that regard, paragraph 7 of the official admissions policy for the school states:

7. Members of the sponsoring congregations are given first opportunity to enroll their children. Children of non-member families are accepted on the following basis and availability of space:

a) children from sister congregations;

b) children from other Lutheran churches;

c) children from other Christian schools;

d) and others who desire a Christian education.

The effect of that admission policy on the enrollment of Immanuel-St. James is substantial. Currently, by Mr. Johnson's own estimate, approximately six-sevenths of the students enrollment are Lutheran. Moreover, instructors keep attendance records on church and Sunday school attendance, and perfect church and Sunday school attendance awards are given at the end of each school year.

An individual interested in obtaining a teaching position at Immanuel-St. James Lutheran School must meet stringent requirements. Those are stated concisely at page 8 of the Immanuel-St. James Lutheran School Handbook:

The teachers of Immanuel-St. James Lutheran School meet all the requirements of Synod for its parochial school teachers and the requirements of the State of Michigan, Department of Education. The teachers have pledged themselves to use every opportunity for continued spiritual and professional growth. They are personally interested in the complete welfare of each individual child. Our teachers have always been known to give unselfishly of their time to students and parents who have special needs.

The District Judge measured the impact of this program upon constitutional concerns under the basic three-fold test set forth in Chief Justice Burger's opinion for the Court in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971).

Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education v. Allen, 392 U.S. 236, 243 [ 88 S.Ct. 1923, 1926, 20 L.Ed.2d 1060] (1968); finally, the statute must not foster "an excessive government entanglement with religion." Walz [v. Tax Commission] supra [ 397 U.S. 664], at 674 [ 90 S.Ct. 1409, at 1414, 25 L.Ed.2d 697].

403 U.S. at 612-13, 91 S.Ct. at 2111.

Dealing with the secular purpose aspect of the crucial tests, Judge Enslen held: "The purpose of the Shared Time and Community Education programs are manifestly secular. Inquiry into the purposes of the School District in establishing the programs, and the Michigan legislature in authorizing the necessary funds, provides no basis to form a conclusion that there was any purpose or intent to advance religion unconstitutionally."

Our review of this record convinces us that these conclusions are not "clearly erroneous" and we affirm.

As to the second test, the District Judge arrived at a different conclusion. That test is stated as whether the legislation attacked is one which "neither advances nor inhibits religion . . ." On this issue the District Judge first reviewed arguably applicable Supreme Court case law: Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975); Sloan v. Lemon, 413 U.S. 825, 93 S.Ct. 2982, 37 L.Ed.2d 939 (1973); Commissioner of Public Education Religious Liberty v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973); Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971); Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968); Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947).

The District Judge then held:

In assessing the instant matter, I observe that the Shared Time and Community Education programs have a number of relevant characteristics in common with the "dual-enrollment" program, which was permanently enjoined by this Court in Americans United for Separation of Church and State v. Porter, supra. In each of the programs, a lease was the instrument through which the public school district gained access to nonpublic school facilities. One effect, in both cases, permitted nonpublic school students to attend public school classes without ever leaving the nonpublic school or mixing with public school students. A second common feature is the complete identity of the student body in the "public school" classes and the nonpublic schools. As in Porter, all of the students in Shared Time and Community Education classes are full-time students of the nonpublic schools. Since there are, in fact, no public school students participating in the instant programs, the nonpublic schools are permitted to retain their private religious character. Certainly, there are other similarities and differences between the two programs. However, these two features are significant in that they demonstrate that each of the programs has a constitutionally impermissible effect. Accord, Americans United For Separation of Church and State v. Oakey, 337 [339] F. Supp. 545 (D.Vt. 1972); Americans United For Separation of Church and State v. Paire, 359 F. Supp. 505 (D.N.H. 1973); Fisher v. Clackamas County School District, 13 Or.App. 56, 507 P.2d 839 (1973); Americans United for Separation of Church and State v. Beechwood Independent School District, 369 F. Supp. 1059 (E.D.Ky. 1974).

In assessing whether the Shared Time program has a sufficiently secular effect, the Court must determine, among other things, whether the class benefited is sufficiently broad. Even when genuinely motivated by an undeniably secular purpose, government must not act so as to support a narrow group of religiously segregated beneficiaries. The challenged programs impact upon a very narrow religious class of beneficiaries. The narrowness of the benefited class was a crucial factor in Nyquist in striking down the tax relief program for parents of nonpublic school children where parochial school children composed over 80 percent of the benefited class. Conversely, the breadth of this class has also been a determinative factor in sustaining aid to nonpublic school pupils, particularly at the university level. Wolman v. Walter [ 433 U.S. 229, 97 S.Ct. 2593, 53 L.Ed.2d 714], supra. The Grand Rapids program, by distinction, directly benefits nonpublic school students, and hence nonpublic schools, while at the same time it excludes members of the public at large. Whereas public school students are assembled at the public facility nearest to their residence, students in religious schools are assembled on the basis of religion without any consideration of residence or school district boundaries. With respect to the exclusion of public from Shared Time classes, a mere statement in the lease that such programs are open to all, does not, as the evidence plainly demonstrated, make the program open to the public.

Despite Defendants' assertions to the contrary, the Court finds that beneficiaries are wholly designated on the basis of religion and, as will be discussed more fully below, the programs as currently implemented also carry with them the destructive potential for political divisiveness. Many of the Shared Time instructors previously taught at the same nonpublic school to which they have now been assigned as public employees. In the Community Education program, the vast majority of instructors are also employed full time by the same nonpublic school. Without questioning the good faith and integrity of the teachers, this Court cannot ignore the potential for advancing religious doctrine under these conditions. Notwithstanding these concerns, a larger problem lies in the fact that challenged courses are conducted in the sectarian atmosphere of the religious schools. As specifically addressed in Nyquist, there is a deeper concern that the atmosphere of the schools, rather than actions of the instructors, will have an effect which advances religion. When courses are offered within the abdomen of a sectarian institution to students who are brought together for a religious mission, there is a distinctly impermissible constitutional effect.

Another glaring nonsecular effect of the programs is that financial responsibility for teaching Physical Education, Art, Music and all of the other available course offerings has been transferred from the private religious schools to the taxpayers. By entering into a legalistic agreement with the parochial schools, the public schools have gained more than access to facilities. They have conferred substantial financial benefits upon those religious institutions by employing and paying from tax funds the numerous instructors who teach subjects in the leased classrooms. Without any change in the character of the student body or infusion of any students from other schools, the programs have undeniably rendered direct benefits, both financial and otherwise, to the sectarian institutions. Such an effect is clearly irreconcilable with the dictates of the Establishment Clause.

The relative merit and benefits of the Shared Time and Community Education programs are not issues before the Court. The issue here is whether this composition of students and teachers, when combined in the sectarian atmosphere of a religious school, fosters an impermissible effect under the Establishment Clause. For the reasons discussed herein, I hold that the challenged programs do violate the First Amendment.

Because we think the second Lemon test, "advances or inhibits religion," and the third, "excessive entanglement of government with religion," are impossible completely to separate in the context of this case, we shall reserve our analysis and decision until we have the District Judge's response to both before us.

As to whether the currently disputed Grand Rapids School Board program represents an excessive entanglement of government with religion, the District Judge held as follows:

The Entanglement Problems

Created out of a desire to minimize government intrusion into the realm of religion, the third aspect of the constitutional standard requires that the program under scrutiny must avoid "an excessive government entanglement with religion." Walz v. Tax Commissioner, supra, [397 U.S.] at 674 [ 90 S.Ct. at 1414]. Generally, excessiveness is a question of degree and is often referred to as "administrative entanglement." Some governmental activity that does not have an impermissible religious effect may nevertheless be unconstitutional, if in order to avoid the religious effect government must enter into an arrangement which requires it to monitor the activity. Lemon v. Kurtzman, supra; Levitt v. Committee for Public Education, supra.

An additional and somewhat different form of entanglement, "political entanglement", was first enunciated in Lemon v. Kurtzman, supra:

A broader base of entanglement of yet a different character is presented by the divisive political potential of these state programs. In a community where such a large number of pupils are served by church-related schools, it can be assumed that state assistance will entail considerable political activity. Partisans of parochial schools, understandably concerned with rising costs and sincerely dedicated to both the religious and secular educational missions of their schools, will inevitably champion this cause and promote political action to achieve their goals. Those who oppose state aid, whether for constitutional, religious, or fiscal reasons, will inevitably respond and employ all of the usual political campaign techniques to prevail. Candidates will be forced to declare and voters to choose. It would be unrealistic to ignore the fact that many people confronted with issues of this kind will find their votes aligned with their faith.

Ordinarily political debate and division, however vigorous or even partisan, are normal and healthy manifestations of our democratic system of government, but political division along religious lines was one of the principal evils against which the First Amendment was to protect. 403 U.S. at 622 [ 91 S.Ct. at 2115-2116]. (Emphasis supplied).

I have already decided that the educational programs at issue benefit narrow groups of citizens on the basis of religion. Because Grand Rapids is a religiously pluralistic community, there are already religious divisions in that city. In preparation for the March, 1980, school millage campaign, the Grand Rapids Board of Education published Citizens Handbook Millage 80, which was distributed as a factual source book to campaign workers. In that booklet the Board of Education has made a purposeful effort to influence favorably the taxpayers sending children to nonpublic schools on the basis of benefits conferred under the programs challenged herein. In attempting to align voters with its cause, the School Board has unquestionably fostered political division along religious lines in disregard of the warnings in Lemon. The next Grand Rapids school millage election is scheduled for 1983. Obviously the potential for political division on the issue of financial aid to religious schools appears imminent. Lemon clearly addresses the problem confronting the parties here:

The potential for political divisiveness related to religious beliefs and practice is aggravated in these two statutory programs by the need for continuing annual appropriations and the likelihood of larger and larger demands as costs and populations grow. The Rhode Island District Court found that the parochial school system's `monumental and deepening financial crisis' would `inescapably' require larger annual appropriations subsidizing greater percentages of the salaries of lay teachers. Although no facts have been developed in this respect in the Pennsylvania case, it appears that such pressures for expanding aid have already required the state legislature to include a portion of the state revenues from cigarette taxes in the program. 403 U.S. at 623-624 [ 91 S.Ct. at 2116]. (Emphasis supplied).

One can scarcely criticize the Defendant School District. Given the realities of the national and state economies (not to mention the curious Michigan formula for financially supporting its public schools), extra voted millage is the only way a school district can keep its school doors open. Obviously, appealing to the voters and importuning them to favorably consider a new millage proposal requires the District to utilize all the persuasion, and all the public relations hyperbole, that it possesses. It is sensible, then, for the district to appeal to those voters who have opted to send their children to private schools. While sensible, it also is a political appeal to the voting community. As such, it invites opposition, as do all political propositions.

In oral argument counsel for Defendant School District urged this Court to consider the fact that, although a potential for political divisiveness might exist, such a division had not occurred. Such an argument ignores the existence of the instant suit and the affidavits of four of the Plaintiffs. Other divisiveness occasioned by the Citizens Handbook is only surmise, and such speculation lies without the purview of this Court. Within the ambit of my decision however, is the inescapable conclusion that such political appeal, as contained in the handbook, creates the potential for political division. Such a tendency has long been constitutionally disfavored.

Indeed, the potential for political divisiveness is altogether too evident. The School District "campaigned" (a political ingredient as ancient as politics itself) for a successful millage in 1980, and included the appeal to the nonpublic school parents. Some candidates for the school board advertised their approval for the millage, including approval of the inclusion of the Shared Time and Community Education programs. This is not a potential for political division but rather historical fact. Voters may also disagree on the issue of the "profitability" of the suspect program. Similarly, the spectre of Board candidates dividing voters over the program haunts the political process.

The potential problems include the 1983 millage election and whether the Board will again appeal to nonpublic school parents. Should one of the Plaintiffs be a school board candidate, that potential becomes a reality.

Defendants further argue that I should ignore the potential for political divisiveness notwithstanding Lemon, Roemer, and Nyquist, because in the instant case the programs have existed for some time without such division. In summary, they argue that potential can be ignored when the track is smooth. Such an argument applies only to effect, however, and not to the clear teaching of Lemon and its progeny with respect to potential. Indeed, it might be argued that political interference with religion, and its corollary, was the touchstone of the drafters' reasoning in the First Amendment.

Periodic appropriations battles and expanded budgetary demands heighten the threat of political divisiveness resulting from the programs at issue. Therefore, I conclude that both programs create an untenable potential for political division along sectarian lines. While "the prospect of such divisiveness may not alone warrant the invalidation of state laws that otherwise survive the careful scrutiny required by the decision of the Court, it is certainly a `warning signal' not to be ignored." Committee for Public Education v. Nyquist, supra, [413 U.S.] at 794 [ 93 S.Ct. at 2976].

By contrast, forbidden administrative entanglement normally takes the form of excessive government surveillance of religious institutions and personnel. This type of administrative entanglement typically involves the government in policing the expenditures of public monies to insure, as the Establishment Clause requires, that such monies are expended only for secular purposes. An evaluation of administrative entanglement requires me to consider three factors: "(1) the character and purposes of the benefited institutions, (2) the nature of the aid provided, and (3) the resulting relationship between the state and the religious authority." Roemer v. Maryland Public Works Board, 426 U.S. [736] at 748 [ 96 S.Ct. 2337, at 2346, 49 L.Ed.2d 179].

As to the character and purpose of the benefited institutions, I have previously concluded that the aided schools, both elementary and secondary, are characterized by substantial religious activity having the primary purpose of advancing religious doctrines. Most, if not all, of the nonpublic schools were located on or near parish churches. The great majority of instructors at those schools are members of the religious faith with which the school is affiliated. This is also true for the great majority of students, all of whom are at an impressionable age. I conclude without hesitation that the purpose of these schools is to advance their particular religions.

Having previously discussed at length the nature of the aid provided, the Court now examines resulting relationship between the state and the religious institutions. The Grand Rapids Public Schools utilized a lease to gain access to facilities within the religious schools participating in the Shared Time and Community Education programs. The director of the Shared Time program testified that he contacts the nonpublic schools that participate in the program to determine which classrooms can be leased. Subsequently, the director visits the nonpublic school building to confer with the Shared Time instructor as to whether the facilities provided are suitable. Pursuant to this arrangement, during the 1981-82 school year rental payments in excess of $200,000 were received by participating nonpublic schools.

I have previously addressed the virtual identity of the student body and the teaching staff. The record also discloses that no evidence was offered by Defendants that any of the participating students come from public schools. As a matter of fact, one witness admitted that a public school student would not be permitted to enroll in a Shared Time class even though that program was "public". Though Defendants claim the Shared Time program is available to all students, the record is abundantly clear that only nonpublic school students wearing the cloak of a "public school student" can enroll in it.

Sharp focus on administrative entanglement reveals that there is considerable duplication between the teachers and staff of the Shared Time program and the nonpublic schools at which their services are rendered. The evidence abundantly demonstrates that many teachers who are employed by a nonpublic school are also employed by the Grand Rapids Public Schools in the Community Education program at the same school. In other instances teachers, now working as Shared Time instructors were previously employed by the nonpublic school at the same buildings. Teachers working in the sectarian schools, where religion is an integral part of its very purpose, are bound to the advancement of that purpose. As employees of the Grand Rapids Public Schools, those same teachers must discard any expression of the religious values that are otherwise part of the nonpublic schools' reason for existence. Moreover, they must do this within the same building where the normal curriculum is offered, including religion. In essence, nonpublic school teachers employed on a part-time basis by the Grand Rapids Public Schools are required to reverse roles during different times of the day.

The case of Kenneth Zandee is illustrative of the dilemma. Prior to 1977, Zandee was a full-time physical education teacher at Christian High School. In 1977, he entered the employ of the Grand Rapids Public Schools Shared Time program as a full-time physical education teacher assigned to teach at Christian High School. Zandee, thus, returned to Christian High School, this time as a public school employee paid from tax money, to teach the very same subject to the very same Christian High School students. Clearly, during this transition the Grand Rapids Public School had assumed the function of providing physical education courses to the students at Christian High School. To complicate matters further, Zandee also teaches a course called Body Mechanics in the "zero hour" Community Education program conducted at school. Finally, Zandee is also employed by Christian High School, as basketball coach, in both his and the school's private capacities.

The case of Mr. Zandee demonstrates the interrelationships which have of necessity developed between the government and the nonpublic institutions. Likewise, the case of Zandee, and others similarly situated, portrays the real need for monitoring to insure that religious views are not advanced in Shared Time or Community Education programs. Without such monitoring the programs run the risk of enhancing religious views. If the courses are monitored, the programs are still infirm in that an excessive administrative entanglement is necessitated. In either case, the same ultimate result applies and the programs cannot be sustained.

The Court's finding that the programs breed an excessive administrative entanglement is bolstered by the procedures through which classes and schedules are coordinated for the programs. In order to coordinate the scheduling of 1,500 classes offered by 470 teachers, the Grand Rapids Public Schools take the following steps: Shared Time and Community Education course packets are sent to the participating nonpublic schools. In turn, nonpublic schools reply, indicating which classes they wish to offer. The Director of the Shared Time program then contacts the nonpublic schools to determine which classrooms are available. He then confers with the Shared Time teachers to see if the rooms provided are satisfactory. Additionally, because the academic year calendars of the involved schools is not necessarily coterminous, certain adjustments must be made. One reason the calendars are different relates to religious holidays which the nonpublic schools celebrate. Adjusting schedules creates obvious additional administrative entanglement. Upon closer scrutiny the need to intrude becomes greater as does the assault on the First Amendment. Once entanglement becomes necessary, like a runaway horse, it is hard to corral.

Once the class schedules are set, still more forms of entanglement arise. For example, parents wishing to speak with a Shared Time instructor are encouraged to make an appointment through the nonpublic school's administrative office. It is noteworthy that a great number of the schools publish handbooks which commingle Shared Time and Community Education classes and instructors with those offered exclusively by the nonpublic school. No mention is made of the fact that these teachers are public school employees and the classes are public offerings. Instead, the impression is conveyed that the teachers listed are nonpublic school teachers. Likewise, the courses listed convey the impression that they are offerings of the particular nonpublic school. Additional entanglement problems arise with respect to student discipline, attendance and dress code policies.

The trial record reveals that, indeed, there has been intermingling of public and nonpublic personnel, courses and other materials. It is not unusual for the supervisor of one of the challenged programs to be a teacher, or even the principal, at one of the participating religious schools. Indeed, teachers now on the public school payroll occupy similar positions as before the inception of the programs, with minimal changes in the identity of students or responsibilities. The Public School District is gradually, but surely, taking over an integral function of these religious schools; namely, providing an education to parochial students. As they are currently implemented, it is not difficult to see that both programs are destined to continue expanding numerically, geographically and, most significantly, in terms of the attendant administrative entanglement. For the above reasons, I am compelled to hold that both the Shared Time and the Community Education programs at issue are constitutionally infirm on the basis that they create an excessive administrative entanglement between government and religion.

DECISION

Detailed consideration of the trial record, of the findings and conclusions of the District Judge, and of the applicable Supreme Court case law generated by the First Amendment clause prohibiting any law "respecting an establishment of religion" convinces this court that the judgment of the District Court must be affirmed.

We accept, as did the District Judge, the facts upon which the appellants chiefly rely. There is no doubt that all of the parochial schools concerned (except the Lutheran School) accept applicants for admission from families of other religious persuasions and admit some such students. There 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.

Nonetheless, several conclusions flow from the record, and findings of the District Court:

First, the schools with whom the School Board of Grand Rapids has contracted and in which these classes are taught are religious institutions created, controlled and operated (as, of course, they have a clear right to be) with the advancement of their various religious faiths as a primary purpose.

Second, the majority of the controlling boards, administrators and teachers in the schools are adherents to the particular school's religious mission, as are the great majority of the parents of the students and the students themselves.

Third, the program has increased to the point where it involves 10% of the classroom time of the schools concerned and a total tax expenditure of $6,000,000.

Fourth, a substantial number of the teachers employed in the Shared Time program were previously employed in the parochial school concerned, and a majority of teachers employed in the Community Education classes are teachers regularly employed in teaching in the religiously oriented program of the schools concerned.

Fifth, such supplementation of teachers' salaries is a direct benefit to all teachers in the two programs, and through them to the schools and to the religious mission of the schools concerned.

Sixth, the District Judge found, and we agree, that as to the three school systems concerned, "a substantial portion of the participating nonpublic schools' `functions are subsumed in the religious mission . . .'" Hunt v. McNair, 413 U.S. 734, 743, 93 S.Ct. 2868, 2874, 37 L.Ed.2d 923 (1973). This last finding is amply substantiated by the following materials which describe the religious nature of the programs with which we deal in this case. As to the Catholic schools, the Superintendent of Schools for the Roman Catholic Diocese of Grand Rapids stated by affidavit in this record, "It is the policy of the Grand Rapids Catholic schools ordinarily to require students to attend religious instruction classes and religious services either at the Catholic school or at the church of his own faith if the student is not Catholic." The St. Jude School Parent Handbook describes the philosophy of Catholic education as "A God oriented environment which permeates the total educational program." As to the Christian schools, the District Judge found that membership in the Grand Rapids Christian School Association, which operates the schools, is restricted to those who subscribe to a doctrinal Basis, which provides in part: "the Word of God must be an all-pervading force in the educational program." ( See the full statement of Basis, supra, page 10.) As to the Lutheran school involved in the Shared Time and Community Development program, the School Handbook says in part: "The child is instructed in all the common school branches of learning, as prescribed by the state. But all such instruction is given from a Christian point of view. The child is thus protected from the dangers of a purely secular schooling."

The District Judge stated his conclusion in this case as follows:

The trial record reveals that, indeed, there has been intermingling of public and nonpublic personnel, courses and other materials. It is not unusual for the supervisor of one of the challenged programs to be a teacher, or even the principal, at one of the participating religious schools. Indeed, teachers now on the public school payroll occupy similar positions as before the inception of the programs, with minimal changes in the identity of students or responsibilities. The Public School District is gradually, but surely, taking over an integral function of these religious schools; namely, providing an education to parochial students. As they are currently implemented, it is not difficult to see that both programs are destined to continue expanding numerically, geographically and, most significantly, in terms of the attendant administrative entanglement. For the above reasons, I am compelled to hold that both the Shared Time and the Community Education programs at issue are constitutionally infirm on the basis that they create an excessive administrative entanglement between government and religion.

The Shared Time and Community Education programs established and implemented by the School District for the City of Grand Rapids, through the use of premises leased from various religious schools, violate the Establishment Clause of the United States Constitution because the programs have the primary effect of advancing religion, and because the programs involve an excessive government entanglement with religion. Plaintiffs are entitled to a Permanent injunction barring further implementation of the programs at issue and the expenditure of public tax monies.

Our review of Supreme Court First Amendment case law convinces us that we must affirm Judge Enslen's conclusion in this case as stated immediately above. The cases upon which we rely primarily for our conclusions are the following: Wolman v. Walter, 433 U.S. 229, 97 S.Ct. 2593, 53 L.Ed.2d 714 (1977); Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975); Committee for Public Education v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973); Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971); Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954 (1952); McCollum v. Bd. of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649 (1948).

The significant features which distinguish this present case from cases wherein the Supreme Court has not found violation of the establishment clause are these: First, this program is primarily a program of assistance to elementary schools; second, this program is one which gives substantial financial aid to education in parochial school buildings; third, the parochial schools concerned have religious indoctrination as a primary school purpose; fourth, the impact upon taxpayers and the parochial schools is direct.

We recognize that the Supreme Court has recently divided 5-4 in upholding a Minnesota tax statute which allowed taxpayers to deduct certain expenses paid by them as parents in connection with their children's attendance in either public or private schools. These expenses included deductions generally beneficial to parents of all school children such as books, supplies and transportation. The statute also allowed deduction up to $500 or $700 of tuition paid to private, including parochial, schools. This was, of course, a deduction not generally available to parents of children in public schools — a fact which led four Justices to dissent on the grounds that the tuition deduction "has a primary effect of promoting religion." The majority in upholding the Minnesota statute relied principally upon the fact that the statute made some deductions (for books, school supplies, transportation, etc.) generally available to parents of all school children. Justice Rehnquist, writing for the majority, also distinguished earlier Supreme Court decisions on the grounds that in the Minnesota tax case the aid was given to the parents of the children involved and not to the parochial schools themselves. The majority opinion said:

We also agree with the Court of Appeals that, by channeling whatever assistance it may provide to parochial schools through individual parents, Minnesota has reduced the Establishment Clause objections to which its action is subject. It is true, of course, that financial assistance provided to parents ultimately has an economic effect comparable to that of aid given directly to the schools attended by their children. It is also true, however, that under Minnesota's arrangement public funds become available only as a result of numerous, private choices of individual parents of school-age children. For these reasons, we recognized in Nyquist that the means by which state assistance flows to private schools is of some importance: we said that "the fact that aid is disbursed to parents rather than to — schools" is a material consideration in Establishment Clause analysis, albeit "only one among many to be considered." Nyquist [413 U.S.] at 781 [ 93 S.Ct. at 2970]. It is noteworthy that all but one of our recent cases invalidating state aid to parochial schools have involved the direct transmission of assistance from the state to the schools themselves. The exception, of course, was Nyquist, which, as discussed previously is distinguishable from this case on other grounds. Where, as here, aid to parochial schools is available only as a result of decisions of individual parents no "imprimatur of State approval," Widmar, at 274 [ 102 S.Ct., at 276], can be deemed to have been conferred on any particular religion, or on religion generally.

___ U.S. ___, 103 S.Ct. 3069 (1983).

The Shared Time and Community Development 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.

We recognize, of course, the increasing impact of Supreme Court majority approval of public funding for religiously neutral supplies and services which are provided to all schools, including parochial schools. If, however, what has been adopted by the Grand Rapids School Board were to be added to the list of such approvals, the separation of church and state will be effectively ended in the field of public education. Legislatures in many states are notoriously vulnerable to pressures from religious constituencies. Under such pressures legislatures can be expected to allocate increasing Shared Time or Community Development funds to the point where the great majority of parochial school costs will be carried by taxpayers. The only costs not covered may in time be those specifically allocated to religious services or classes in religious instruction. Constant secular inspection and surveillance of all activities not specifically labeled religious would be required to maintain even a fiction of separation. Such a result would end public education as a major aspect of the American goal of equality of opportunity.

THE DISSENT

The dissent in this case cites a number of cases which illustrate that the Supreme Court of the United States has approved as not violative of the First Amendment's establishment clause many instances of tax-supported activities which in addition to serving nonsectarian public purposes, also render assistance to parochial school children. It cites no instance (because there is none) where the Supreme Court has approved expending public tax funds for teachers to teach in parochial schools.

In this regard, however, it also cites Wheeler v. Barrera, 417 U.S. 402, 94 S.Ct. 2274, 41 L.Ed.2d 159 (1974), seemingly as support for its position. The Wheeler case, however, is not authority for the position taken by the dissent. As Justice Powell put the matter in his concurrence with the majority:

MR. JUSTICE POWELL, concurring.

The Court holds that under Title I of the Elementary and Secondary Education Act of 1965, as amended, 20 U.S.C. § 241a et seq., federal courts may not ignore state-law prohibitions against the use of publicly employed teachers in private schools, ante, [417 U.S.], at 416-417 [ 94 S.Ct. at 2282-2283], that Title I does not mandate on-the-premises instruction in private schools, Ante, at 419 [ 94 S.Ct. at 2284], and that Title I does not require that the services to be provided in private schools be identical in all respects to those offered in public schools. Ante, at 420-421 [ 94 S.Ct. at 2284-2285]. It is thus unnecessary to decide whether the assignment of publicly employed teachers to provide instruction in sectarian schools would contravene the Establishment Clause of the First Amendment. Ante, at 415 [ 94 S.Ct. at 2282]. On that basis, I join the Court's opinion. I would have serious misgivings about the constitutionality of a statute that required the utilization of public school teachers in sectarian schools. See Committee for Public Education v. Nyquist, 413 U.S. 756 [ 93 S.Ct. 2955, 37 L.Ed.2d 948] (1973).

Id. at 428, 94 S.Ct. at 2288-2289.

Similarly, the dissent seeks to make some association between the 60 years of operation of the Community Education program in the Grand Rapids public schools and the placement of teachers on the public payrolls in the three parochial systems involved in this litigation. The preceding Community Education program is not involved at all in this litigation — except as an example of how public funds may appropriately be used to teach parochial school children in public school classes in public schools.

This record clearly shows that the parochial school child who takes a publicly tax-supported class from a regular parochial school teacher who is on the public payroll for that class is likely to be taught by a teacher who is a member of the religious faith which operates the parochial school. As such he or she is charged with carrying out the religious mission of the church concerned. That teacher, without any breach of faith by either the religious denomination or the public schools, by his or her effective teaching in the Shared Time or Community Education class may so impress the student as to become a role model. That same teacher in the corridors outside that classroom door — in the lunchroom, on the playground, in the auditorium, or in another class when on the parochial school payroll — has an obligation to carry out his or her assigned role of religious education and indoctrination of this same student. Under these circumstances, the task of separating church and state becomes literally impossible, and the program has the primary effect of advancing religion.

Where for six years 470 teachers on tax-supported payrolls have been teaching 11,000 children in 41 private schools without significant monitoring, the relationships between those teachers and those students are bound to have had an effect in carrying out the parochial school teacher's duty to advance religion.

We should also point out that while the three churches involved at this time in this program have reputations for social responsibility, this same sort of program, if legitimatized by ultimate legal authority and spread nationwide, will face applications for similar assistance by dozens if not hundreds of religious organizations. Many less orthodox religious sects would be equally entitled to public funds from these programs, assuming they meet state law standards. Many of them may also act as a result of religious zeal and economic need with much less responsibility than the District Judge and this court have assumed was true concerning these defendants. Extensive monitoring would be required to maintain even a surface appearance of separation of church and state.

Still another aspect of the basic Lemon v. Kurtzman tests is Lemons' emphasis upon political divisiveness:

A broader base of entanglement of yet a different character is presented by the divisive political potential of these state programs. In a community where such a large number of pupils are served by church-related schools, it can be assumed that state assistance will entail considerable political activity. Partisans of parochial schools, understandably concerned with rising costs and sincerely dedicated to both the religious and secular educational missions of their schools, will inevitably champion this cause and promote political action to achieve their goals. Those who oppose state aid, whether for constitutional, religious, or fiscal reasons, will inevitably respond and employ all of the usual political campaign techniques to prevail. Candidates will be forced to declare and voters to choose. It would be unrealistic to ignore the fact that many people confronted with issues of this kind will find their votes aligned with their faith.

Id. 403 U.S. at 622, 91 S.Ct. at 2115-2116.

As the Supreme Court notes immediately below, "political division along religious lines shows one of the principal evils against which the First Amendment was intended to protect." Lemon v. Kurtzman, supra at 622, 91 S.Ct. at 2116. Such political divisiveness has already been exemplified in a statewide voter referendum and extensive litigation. See illustrative citations on page two of this opinion; particularly In Re Proposal C (Traverse City School District v. Attorney General), 384 Mich. 390, 185 N.W.2d 9 (1971). Additionally, the District Judge has pointed to the fact that these programs were very much a part of a recent school board's campaign for increased millage and might well be again in 1983.

In the background of this litigation is a classic political battle over this same program referred to in the newspapers of 1971 as "parochiad." The issue was presented by a petition for a constitutional amendment, obviously intended to bar parochiad. Although the amendment was adopted, it was found invalid under the state constitution by the Michigan Supreme Court. See the dramatic story of this classic example of religious divisiveness as set forth in the Traverse City School case, supra, fn. 2.

The judgment of this District Court is affirmed.