MAIN	cases	docket	decisions	orders	briefs	rules	guides	calendar
Nos. 98-1648 & 98-1671: Mitchell v. Helms and Picard v. Helms

No. 98-1468 and 98-1671

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 FifthCircuit in this case, striking down the application of Title VI of the Elementaryand Secondary Education Act of 1965 (ESEA), 20 U.S.C. 7301-7373, in JeffersonParish, Louisiana, does not conflict with the Ninth Circuit's decision inWalker v. San Francisco Unified School District, 46 F.3d 1449 (1995), whichupheld the application of Title VI in San Francisco. They assert that thetwo programs are distinguishable on their facts in constitutionally significantways. Both lower courts in this case, however, found the two programs tobe indistinguishable. See 98-1648 Pet. App. 59a, 107a.
Indeed, although respondents suggest (Br. in Opp. 15) that the San FranciscoTitle VI program upheld in Walker was confined to prescreened materialsand locked computer hardware and software, in fact private schools in SanFrancisco received "library books, textbooks, videos, overhead projectors,movie and slide projectors and projection stands, television sets, recordplayers, cassette recorders, VCRs, video cameras, 'listening centers,' globesand maps, microscopes and other lab equipment, computer equipment, musicalequipment, stereo systems, and desks and tables." 46 F.3d at 1464.Although not all of these materials were lent to private schools in everyyear, and the program was eventually limited to prescreened library books,instructional materials, and reference materials, see ibid., the Ninth Circuit'sdecision upholding the program was not limited to the latter, more restrictedclass of materials. See id. at 1469 n.17 (upholding loan of maps and sciencekits, and finding them indistinguishable from textbooks, which may be lentto students under Board of Education v. Allen, 392 U.S. 236 (1968)).

2. Respondents argue (Br. in Opp. 18) that the anti- supplantation ruleof Title VI, see 20 U.S.C. 7371(b), requiring that funds made availableunder the federal program supplement, and not supplant, other resources,applies only to the local educational agency (LEA) that receives the federalfunds, and not to private schools that are lent equipment purchased withTitle VI funds by the LEA. The statute, however, is framed generally toprohibit the use of Title VI funds by LEAs that would supplant non-federalresources in any way. Title VI requires LEAs to use and allocate Title VIfunds "only so as to supplement and, to the extent practical, increasethe level of funds that would, in the absence of Federal funds made availableunder this part, be made available from non-Federal sources, and in no case* * * to supplant funds from non-Federal sources." Ibid. The statute'sprohibition against the use of federal funds to supplant "non-Federalsources" is not limited to the supplantation of state and local governmentalsources of funds, as opposed to non-governmental sources of funds. If anLEA used Title VI funds to provide private schools with equipment that would,in the absence of federal funds, be made available from any non-federalsources, including private sources, the anti-supplantation rule would beviolated.
Further, the Department of Education's regulations implementing the ESEA'sprovisions governing the participation of private schoolchildren in federalprograms expressly require that LEAs use Title VI funds "to provideservices that supplement, and in no case supplant, the level of servicesthat would, in the absence of services provided under [Title VI], be availableto participating children * * * in private schools." 34 C.F.R. 299.8(a).That regulation is not limited to prohibiting supplantation of servicesthat would be available to private school children from other public sources,but also prohibits use of Title VI resources to supplant services that wouldbe otherwise made available from private resources. Cf. Agostini v. Felton,521 U.S. 203, 210 (1997) (similar regulation implementing Title I of theESEA prohibits supplanting "services already provided by the privateschool"). Finally, the State of Louisiana has also applied Title VI'santi-supplantation requirement to prohibit supplantation of nonfederal resourcesby private schools; in its Title VI Guidelines to LEAs, the State recommendedthat LEAs require private schools to give assurances, in their applicationsfor participation in the Title VI program, that resources made availableunder 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'tOpp. to Resp. Mot. for Summ. Judg.

3. Respondents suggest (Br. in Opp. 28) that, notwithstanding the courtof appeals' decision invalidating the loan of instructional equipment andmaterials to religious schools in any circumstances, private schoolchildrenmay nonetheless participate in Title VI services provided directly to themby 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 ofpublic school instructors to provide Title VI services to private schoolchildrenin many circumstances. Thus, to an overwhelming degree, LEAs ensure theparticipation of private schoolchildren in Title VI benefits (as they arerequired to do by statute, see 20 U.S.C. 7372(a) and (b)) by lending instructionalequipment and materials to private schools. See Title VI Nat'l SteeringComm., Elementary and Secondary Education Act (ESEA): Title VI: InnovativeEducation 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 Presidentwould shortly announce proposals for the reauthorization and revision ofthe ESEA. The President's legislative proposal was publicly announced onMay 21, 1999. Copies of the proposed legislation and the accompanying section-by-sectionanalysis have been lodged with the Clerk and served on the parties.
As we explained earlier, the President's proposed revision of the ESEA wouldnot extend Title VI in its current form. However, a revised Title III ofthe ESEA, entitled "Technology for Education," would authorizeLEAs and other entities to use federal funds for, among other things, adaptingor 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-49to III-50, proposing a new ESEA § 3134; see also section-by-sectionanalysis, at III-18. In addition, a new Title II-A-2 of the ESEA, focusingon professional development for teachers, would authorize LEAs receivingfederal funds to use funds for the development and acquisition of curricularmaterials and other instructional aids, if they are not normally providedby the LEA or the State as part of the regular instructional program. Seeproposed legislation, at II-31, proposing a new ESEA § 2130(11); section-by-sectionanalysis, at II-1.
Provisions similar to those in the current version of the ESEA, requiringLEAs to provide for the equitable participation of private schoolchildrenin program benefits, prohibiting the use of federal funds to supplant non-federalsources, and requiring that all benefits be secular, are also included inthe President's proposed legislation. Title XI of the revised ESEA wouldcontinue in effect, for the new Title II-A-2 and Title III, both the statutoryrequirement currently applicable to Title III and Title VI that LEAs providebenefits under the program to private schoolchildren on an equitable basis,and also the requirement that any educational services or benefits madeavailable under those programs, including materials and equipment, be secular,neutral, and nonideological. See proposed legislation, at XI-18, which wouldamend 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, wouldrequire that a recipient of federal funds use those funds only to supplementthe funds or resources available from non-federal sources, and not to supplantthose non-federal funds or resources. See proposed legislation, at II-35and III-10; section-by-section analysis, at II-6 and III-2.
Accordingly, under the proposed revision of the ESEA, federal funds wouldbe available for programs similar to those currently funded under TitleVI, involving the acquisition and use of computer technology for loan toschools, including private religious schools. Also, as under the currentTitle VI, LEAs would be required to provide for the equitable participationof private schoolchildren in the benefits of such federal programs, whichmust be secular, neutral, and nonideological, and which may not supplantnon-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 petitionfor a writ of certiorari in No. 98-1648.