Full opinion text
MEMORANDUM OPINION ENSLEN, District Judge. Asserting transgressions of the Establishment Clause, Plaintiffs seek to enjoin certain cooperative educational arrangements, collectively styled “Shared Time”, entered into pursuant to Michigan law by the School District of the City of Grand Rapids and various nonpublic, religiously-oriented, elementary and secondary schools located within, or proximate to, the School District. The challenged programs are conducted by public school teachers in classrooms located within and leased by nonpublic schools to the public school district. Courses are offered under the supervision and control of the public school district and utilize books and other materials purchased with public funds. Plaintiffs seek a declaration that the Michigan legislature’s authorization of funding for these arrangements is violative of the Establishment Clause of the First Amendment of the United States Constitution, as made applicable to the states by the Fourteenth Amendment. I. The Parties There are six individual Plaintiffs and one organizational Plaintiff. The individual Plaintiffs are Phyllis Ball, Katherine Pieper, Gilbert Davis, Patricia Davis, Frederick L. Schwass, and Walter Bergman, each of whom is a resident in Defendant School District, is a Michigan taxpayer, and opposes the use of public funds by nonpublic schools. The organizational Plaintiff, Americans United for Separation of Church and State, is a District of Columbia corporation composed of persons residing and paying taxes throughout the United States, including the State of Michigan. The original Defendants are the School District of the City of Grand Rapids; Phillip Runkel, Superintendent of Public Instruction of the State of Michigan; State Board of Education of the State of Michigan; and Loren E. Monroe, State Treasurer of the State of Michigan. A number of individuals, parents of children receiving benefits under the challenged programs, were subsequently permitted to intervene as party Defendants. At the conclusion of trial, Defendants raised, for the first time, the issue of standing, both with regard to the organizational and individual Plaintiffs. Because the matter of standing is jurisdictional and since a federal court must not exercise its awesome injunctive powers in the absence of jurisdiction, I will resolve those issues seriatim. First, Plaintiffs’ Complaint, at paragraph 4, states that: Americans United for Separation of Church and State (hereinafter designated Americans United) is an association of persons resident in the State of Michigan and elsewhere throughout the United States having as its objective to defend, maintain and promote religious liberty and the constitutional principle of separation of church and state. In keeping with this objective, Americans United oppose the use of public funds for the support in whole or in part of sectarian schools or other private schools whose policies and practices are intended to advance and indoctrinate religion. Paragraph 21 of Plaintiffs’ Complaint states: It is contrary to the religious conscience of each of the Plaintiffs, and is contrary to the purpose for which the organizational Plaintiff was formed, to be forced by operation of the taxing power to contribute to the propagation of religion in the support of religious schools. With respect to the organizational Plaintiff, there are no further jurisdictional allegations in the Complaint. At trial, no representative of Americans United testified, and indeed, there was no proof that Americans United represent Michigan taxpayers. Thus, the organizational Plaintiff has failed to allege, or prove, taxpayer standing to challenge the validity of the Shared Time program. Flast v. Cohen, 392 U.S. 83, 88 5. Ct. 1942, 20 L.Ed.2d 947 (1968). Rather, it appears that Americans United have attempted to assert standing solely on the basis of some “special status” as a representative of those who oppose the use of public funds for the support of religious institutions. Such “special status” standing was considered and expressly rejected, indeed with respect to the very same organizational Plaintiff, in the Supreme Court’s recent decision of Valley Forge Christian College v. Americans United for Separation of Church and State, - U.S. -, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). Accordingly, an order dismissing Americans United as Plaintiffs, pursuant to Fed.R.Civ.P. 12(h)(3), will enter this date. Consequently, I now address the issue of whether the individual Plaintiffs have sustained their burden with respect to standing. Paragraph 5 of Plaintiffs’ Complaint reads: Each of the individual Plaintiffs is a citizen of the United States and a resident within said school district and pays income taxes and other taxes to the United States and to the State of Michigan and the said school district, and each is a qualified, legal voter registered in the City of Grand Rapids, Kent County, Michigan. Affidavits were submitted, without objection, by four of the six individual Plaintiffs. Essentially, these affidavits recite that they are citizens of the United States and residents of the Defendant School District who pay federal, state and local taxes, and that they object on the basis of the Establishment Clause to the use of their federal, state and local taxes to support the programs herein challenged. Hence, the individual Plaintiffs have attempted to allege and prove standing to bring the instant action on the basis of their taxpayer status. Flast v. Cohen, supra, establishes a two part test: The nexus demanded of federal taxpayers has two aspects to it. First, the taxpayer must establish a logical link between that status and the type of legislative enactment attacked. Thus, a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, § 8, of the Constitution, It will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regula^ory statute. This requirement is consistent with the limitation imposed upon state-taxpayer standing in federal courts in Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475 (1952). Secondly, the taxpayer must establish a nexus between that status and the precise nature of the constitutional infringement alleged. Under this requirement, the taxpayer must show that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art I, § 8. When both nexuses are established, the litigant will have shown a taxpayer’s stake in the outcome of the controversy and will be a proper and appropriate party to invoke a federal court’s jurisdiction. 392 U.S. at 102-103, 88 S.Ct. at 1953-1954. Applying that test, I conclude that, like the plaintiff in Flast, the individual Plaintiffs satisfy the first part of the test for taxpayer standing. Flast limited taxpayer standing to challenges of the exercise of the congressional spending power. As will be developed below, the Michigan legislature’s annual appropriation of funding for the Shared Time program is clearly an exercise of its spending power. The individual taxpayers also satisfy the second part of the Flast test. In other words, the individuals have established the required nexuses between their status as taxpayers and the specific constitutional limitation upon the exercise of the spending power, i.e. the Establishment Clause of the First Amendment to the United States Constitution. For the above reasons, I am satisfied that the individual Plaintiffs do indeed have standing. II. The State Legislation The Michigan legislature, like that of many states, has granted extensive authority over the formulation and control of educational policy to administrative agencies and various bodies at the state and local levels, including some of the defendants to this action. By 1976 P.A. 451, § 1282; M.C. L.A. § 380.1282; M.S.A. § 15.41282, the Michigan legislature provided that: The board of a school district shall establish and carry on the grades, schools, and departments it deems necessary or desirable for the maintenance and improvement of the schools, determine the courses of study to be pursued, and cause the pupils attending school in the district to be taught in the schools or departments the board deems expedient. Pursuant to the above section, the Michigan Supreme Court has determined that local boards of education have discretionary authority to provide shared time instruction to part-time public school students. Traverse City School District v. Attorney General, 384 Mich. 390, 411, n. 3, 185 N.W.2d 9 (1971). Moreover, Michigan appellate courts have uniformly held that the provision of shared time instruction by local boards of education on premises leased from nonpublic schools under conditions of public school supervision and control violates neither the United States nor the Michigan Constitutions. Traverse City School District v. Attorney General, supra; Citizens to Advance Public Education v. State Superintendent of Public Instruction, 65 Mich.App. 168, 237 N.W.2d 232 (1975), Iv. app. den., 397 Mich. 854 (1976). Contra, Americans United for Separation of Church and State v. Porter, 485 F.Supp. 432 (W.D.Mich.1980). Local boards of education, including Defendant School District for the City of Grand Rapids, also have statutory authority to lease real and personal property, pursuant to 1976 P.A. 451, § 331(1); M.C.L.A. § 380.331; M.S.A. § 15.4331: The school district shall be a body corporate, governed by a board of education; may sue and be sued; and may take, hold, lease, sell, and convey real and personal property, including property outside its corporate limits, and property received by gift, devise, or bequest, as the interest of the school district may require. Land outside the school district shall not be acquired unless approved by a 2/3 vote of members elected to and serving on the board. In the exercise of its general power to appropriate public funds derived from the Michigan Constitution, the Michigan legislature has authorized the payment of state school aid funds to local boards of education for part-time public school students receiving shared time instruction on premises leased from the nonpublic schools. 1979 P.A. 94, the State School Aid Act of 1979, §§ 6(1) and (2) and 111(3); M.C.L.A. § 388.-1601, et seq.; M.S.A. § 15.1919(901), et seq. Pursuant to this enactment, the Michigan Department of Education has implemented Administrative Rules R. 340.6 and R 340.7, Administrative Code, 1979, Vol. II, pp. 2732-2733, and “Local District Summary; 1981 Fourth Friday Report”. The above statute, the administrative rules, and the reporting forms make no distinction based upon the situs of shared time instruction. Thus, the legislature has authorized payment of state school aid funds without regard to whether shared time instruction occurs on premises owned or leased by the local board of education. III. Factual Background 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. Wherever 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 nonpublie 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. IV. The Nonpublic Schools Approximately forty of the Grand Rapids area nonpublic schools which have elected to participate in the Shared Time and Commuriity 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, 2874, 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 elementary and secondary Christian schools 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 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 Re-newer 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-prevading 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; ¡fc Sfc Sfc Sj! * * (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 of God’s word. sfc sk !{: * ^ * 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 ImmanuelSt. James Lutheran School Handbook: IMMANUEL-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 CHRIS-. TIAN 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 ImmanuelSt. 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 admissions 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. Despite the fact that, the evidence revealed several distinguishing features, the character of the participating nonpublic schools is fundamentally and substantially comparable to that of the nonpublic schools involved in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), reh. den., 404 U.S. 876, 92 S.Ct. 24, 30 L.Ed.2d 123 (1971). Based upon the massive testimony and exhibits, the conclusion is inescapable that the religious institutions receiving instructional services from the public schools are sectarian in the sense that a substantial portion of their functions are subsumed in the religious mission. See also, Committee for Public Education v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973); Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975), reh. den., 422 U.S. 1049, 95 S.Ct. 2668, 45 L.Ed.2d 702 (1975); and National Coalition for Public Education v. Harris, 489 F.Supp. 1248, 1262-1267 (SDNY1980), app. dism., 449 U.S. 808, 101 S.Ct. 55, 66 L.Ed.2d 11 (1980), reh. den., 449 U.S. 1028, 101 S.Ct. 601, 66 L.Ed.2d 491 (1980). V. The Constitutional Standard The Court’s task is to assess the challenged Shared Time and Community Education programs against the limitations imposed by the Establishment Clause of the United States Constitution. The First Amendment states in pertinent part that: “Congress shall make no law respecting the establishment of religion.... ” This terse prohibition, which is applied to the states through the Due Process Clause of the Fourteenth Amendment, Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940), is subject to a decidedly flexible, and constantly evolving interpretation by the courts. Due to the flexible construction of the clause, and in the absence of rigid, precisely stated constitutional prohibitions, it is necessary to appreciate the primary evils against which it was intended to afford protection: “. . . sponsorship, financial support, and active involvement of the sovereign in religious activity." Walz v. Tax Commissioner, 397 U.S. 664, 668, 90 S.Ct. 1409, 1411, 25 L.Ed.2d 697 (1970). For many years the Supreme Court has endeavored to fashion guidelines distinguishing permissible from impermissible aid to religious schools. Early in its endeavor, the court placed great emphasis on the concept of neutrality. See, e.g. Abington School District v. Schempp, 374 U.S. 203, 215, 83 S.Ct. 1560, 1567, 10 L.Ed.2d 844 (1963). Eventually, this neutrality principle was converted into broader, cumulative criteria. An analysis of this matter cannot begin without careful consideration of those guidelines, a tripartite test, which is clear in expression, if not in operation. First, the statute must have a secular legislative purpose; second, its principle or primary effect must be one that neither advances nor inhibits religion, ...; finally, the statute must not foster ‘an excessive government entanglement with religion.’ ... Lemon v. Kurtzman, 403 U.S. 602, 612-613, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971). (Emphasis supplied.) Bearing in mind the judicially created flexibility of those criteria, I will proceed to consider the challenged instructional programs in terms of the three tests: purpose, effect, and entanglement. A. Purpose The most rudimentary requirement in a constitutional system designed to assure religious independence is that state action at least be justifiable in secular terms. Actions not justifiable in that way will normally violate the Establishment Clause. Although the requirement of a secular purpose is rarely decisive, the requirement did prove decisive in at least one famous case, involving an Arkansas statute adopted to prohibit the teaching in public schools of the theory that man evolved from other species. Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968). See also, Daniel v. Waters, 515 F.2d 485 (CA 6 1975). 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. It is widely recognized that both the state and local governmental bodies will always possess legitimate concerns for obtaining and even upgrading educational systems. The purpose of the Board of Education of the Grand Rapids Public Schools is amply stated in its officially adopted “Philosophy of Education”: 2. The Grand Rapids Board of Education is committed to provide for each student, an equal opportunity for a quality education. Education is an endeavor or process which seeks to develop an excellence of mind, spirit, and attitude of which man is so uniquely capable and having as its ultimate goal the happiness and fulfillment of each individual and the welfare of society. The Board recognizes that no two students are alike; they have differing needs, differing abilities, differing aspirations. The Board seeks the fully developed individual, maximizing his potential, talents, and interests. The Board is concerned for the exceptional child and will provide opportunities for both the talented and the handicapped. Education in Grand Rapids Public Schools shall enable each individual to: A. Acquire the basic skills. B. Apply rational intellectual processes to the identification, consideration, and solution of problems. C. Develop a comprehension of a changing body of knowledge of the various disciplines. D. Learn good health and safety habits as well as muscle coordination. E. Experience an environment that will motivate and develop an inquisitive mind capable of critical and objective thinking and independent study. F. Progress toward a marketable skill. G. Realize the interdependence and the common destiny of all citizens of the United States. H. Become a citizen who has a sense of self respect, who respects the person and rights of all others, who accepts the responsibilities and disciplines of our society, and who respects the law. I. Understand and deal with social problems thoughtfully and objectively. J. Have an opportunity for continuing education. Education is a cooperative endeavor requiring reciprocal effort on the part of the teacher and students supported by the cooperation of parents and the community. The Grand Rapids Public Schools shall utilize all available facilities and equipment to provide a healthful and stimulating educational environment. School facilities shall be used for the regular program, continuing education, and the community. It is exceedingly clear, therefore, that Defendant School District, through its laudable “philosophy”, instigated Shared Time and Community Education for purely secular purposes. The State Defendants cannot be said to have had a constitutionally impermissible purpose either. I believe that Jefferson would share the views of Plaintiffs and Defendants on legislative purpose. (See footnote 7). For the foregoing reasons, I find the purpose constitutional. B. Primary Effect The second aspect of the constitutional standard requires me to decide whether the “principle or primary effect” of the program is one that “neither advances nor inhibits religion.” Lemon v. Kurtzman, 403 U.S. at 612, 91 S.Ct. at 2111. Ordinarily, a law which confers a benefit upon all citizens equally, without regard to religious affiliation, will not have a prohibited effect. It is the contention of Defendants that the Shared Time and Community Education programs fit within the “child benefit principle” in both conception and administration and, thus, do not have the effect of impermissibly advancing religion. See, Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1971), and Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968). The educational programs at issue are certainly consistent with the School District’s Philosophy of Education, which is dedicated to the provision of secular educational opportunities for the entire community. There was testimony, and other evidence, presented indicating that both of these cooperative educational arrangements do in fact have a positive impact on the participating nonpublic school students. Because, as was previously noted, the constitutional standards are flexible by design, what amounts to an impermissible primary effect may best be gleaned by contrasting the “child benefit principle” cases on the one side, with cases finding an impermissible effect on the other. In Everson v. Board of Education, supra, Justice Black, writing for the majority, upheld against an establishment clause attack a New Jersey statute authorizing reimbursement to parents of money expended for bus transportation of their children to and from school, including children attending religious schools. Delivering the opinion he included these comments: It is true that this Court has, in rare instances, struck down state statutes on the ground that the purpose for which tax-raised funds were to be expended was not a public one. Citizens’ Sav. & L. Asso. v. Topeka, 20 Wall. (US) 655, 22 L.Ed. 455; Parkersburg v. Brown, 106 U.S. 487, 1 S.Ct. 442, 27 L.Ed. 238; Thompson v. Consolidated Gas Utilities Corp., 300 U.S. 55, 57 S.Ct. 364, 81 L.Ed. 510. But the Court has also pointed out that this far-reaching authority must be exercised with the most extreme caution. Green v. Frazier, 253 U.S. 233, 240, 40 S.Ct. 499 [501], 64 L.Ed. 878, 881. Otherwise, a state’s power to legislate for the public welfare might be seriously curtailed, a power to which is a primary reason for the existence of states. Changing local conditions create new local problems which may lead a state’s people and its local authorities to believe that laws authorizing new types of public services are necessary to promote the general well-being of the people. The Fourteenth Amendment did not strip the states of their power to meet problems previously left for individual solution. 330 U.S. at 6-7, 67 S.Ct. at 507. Everson is replete with other references to general public welfare legislation and is considered the seminal point in the development of the “child benefit principle.” See also, Cochran v. Louisiana State Board of Education, 281 U.S. 370, 50 S.Ct. 335, 74 L.Ed. 913 (1930). More than two decades later, the Supreme Court, in an Opinion by Justice White, reaffirmed the continued vitality of the child benefit principle in Board of Education v. Allen, supra . The Court held that a New York statute requiring local public school authorities to lend secular textbooks free of charge to all students in grades 7 through 12, including students attending religious schools, was not infirm under the First Amendment. The holding in Allen was premised upon the fact that the books covered only secular subjects, were available to all students, conferred a benefit upon the child’s parents rather than upon religious schools, and that ownership of the books remained in the state. The Court concluded that, as in Everson, New York was merely “extending the benefits of state laws to all its citizens.” 392 U.S. at 242, 88 S.Ct. at 1925. After Everson and Allen it is clear that certain limited forms of general welfare state aid may be channeled to pupils attending private schools. In Walz v. Tax Commissioner, supra, the traditional tax exemption of property used for religious, educational or charitable purposes was upheld under a similar rationale. See generally, Americans United for Separation of Church and State v. Blanton, 433 F.Supp. 97 (M.D.Tenn.), summ. aff’d., 434 U.S. 803, 98 S.Ct. 39, 54 L.Ed.2d 65 (1977). In contrast to the “child benefit” cases, numerous other cases have invalidated educational programs, after determining that their primary effect impermissibly advanced a sectarian mission. The Supreme Court, in Committee for Public Education and Religious Liberty v. Nyquist, supra, invalidated three New York programs, to wit: a maintenance and repair provision, a tuition reimbursement provision, and a tax credit provision. The maintenance and repair provision authorized unrestricted grants, directly to religious schools with the amount depending on the number of pupils. The court found that the undeniable primary effect of those grants was “to subsidize and advance the religious mission of sectarian schools.” 413 U.S. at 779-780, 93 S.Ct. at 2968-69. The tuition reimbursement program enabled parents to obtain reimbursement for tuition paid at religious schools. Noting that, in the absence of definite restrictions guaranteeing separation between the secular and the religious functions of the schools, the court held that reimbursement of tuition payments had the effect of providing direct aid to the schools by offering parents an incentive to send their children to such schools. With respect to the tax credit provision, the court also held that it provided a direct incentive to parents. Nyquist attempted to clarify the test for distinguishing the primary from the secondary effects of government programs, which, like the instant matter, have both secular and religious effects. In that respect, the Supreme Court noted: “Our cases simply do not support the notion that a law found to have a ‘primary’ effect to promote some legitimate end under the State’s police power is immune from further examination to ascertain whether it also has the direct and immediate effect of advancing religion.” 413 U.S. at 783-784, n. 39, 93 S.Ct. at 2970-2971, n. 39. In a sense, Nyquist transformed the “primary secular effect” aspect of the constitutional test into a requirement that any non-secular effect be remote, incidental and indirect. Accordingly, this shift in standard compels a rigorous and more searching analysis. Sloan v. Lemon, 413 U.S. 825, 93 S.Ct. 2982, 37 L.Ed.2d 939 (1973), reh. den. 414 U.S. 881, 94 S.Ct. 30, 38 L.Ed.2d 128 (1973), decided on the same day as Nyquist, invalidated a Pennsylvania tuition reimbursement program. The Supreme Court, finding that the Pennsylvania program was indistinguishable from the New York program invalidated in Nyquist, noted that: “... at bottom its intended consequence is to preserve and support religion-oriented institutions.” 413 U.S. at 832, 93 S.Ct. at 2986. Levitt v. Committee for Public Education and Religious Liberty, 413 U.S. 472, 93 S.Ct. 2814, 37 L.Ed.2d 736 (1973), involved a New York statute authorizing cash reimbursements for the preparation, administration, and grading of certain state-mandated examinations. On direct appeal, the Supreme Court found that the statute violated the primary effect portion of the constitutional standard because it did not effectively restrict the use for which the funds could be put, and because there it did not distinguish between tests which included religious content and tests which were entirely secular. In 1974, in an attempt to replace the defective aid plan of Levitt, the New York legislature enacted another statute that authorized reimbursement to nonpublic schools for the costs of performing state-mandated pupil testing and record keeping. The second statute differed from the first in two important respects: First, the new statute did not reimburse the nonpublic schools for the preparation, administration, or grading of teacher prepared tests. Rather, the tests were prepared by the State of New York. This change was evidently designed to eliminate teacher and administrative discretion which was the subject of criticism by the court in Levitt. Secondly, the new statute provided a method for auditing payments made to the school by the state, thereby insuring that reimbursement was made only for actual costs. After a circuitous route through the courts, this second statute was ultimately upheld by the Supreme Court in Committee for Public Education and Religious Liberty v. Regan, 444 U.S. 646, 100 S.Ct. 840, 63 L.Ed.2d 94 (1980). Noting the distinctions between the two statutes, the court reasoned that because the nonpublic schools retained no control over the content of the tests or the results thereof, cash reimbursements to private schools do not constitute direct aid to religion provided there are “... ample safeguards against excessive or misdirected reimbursement.” 444 U.S. at 659,100 S.Ct. at 849. The court emphasized the following caveat: “Of course, under the relevant cases the outcome would likely be different were there no effective means for insuring that the cash reimbursements would cover only secular services.” 444 U.S. at 659, 100 S.Ct. at 849. (Emphasis supplied.) In the interim, between the release of Levitt and Began, the Supreme Court decided several cases which are important to the present discussion. Meek v. Pittenger, supra, involved a challenge to the constitutionality of Pennsylvania statutes authorizing public school authorities to: (1) lend textbooks and instructional material and equipment, and (2) supply professional staff and supportive materials to provide auxiliary services, to qualifying nonpublic schools, many of which maintained religious affiliations. I think Meek is germane because the Court, consistent with its decision in Lemon, declared unconstitutional a program providing salaries for teachers who supplied secular services to parochial elementary schools. The teachers in Meek, however, unlike those in Lemon, were hired by the state and were not under the control of the parochial schools. The Court was not convinced by the argument that public school teachers could be self-policing and incapable of being diverted to the advancement of religion. The Court determined that the parochial schools were sectarian and that secular and sectarian activities could not be separated and held that direct subsidy would have the impermissible effect of aiding religion, declaring that: We need not decide whether substantial state expenditures to enrich the curricula of church-related elementary and secondary schools, like the expenditure of state funds to support the basic educational program of those schools, necessarily result in the direct and substantial advancement of religious activity. For decisions of this Court make clear that the District Court erred in relying entirely on the good faith and professionalism of the secular teachers and counselors functioning in church-related schools to ensure that a strictly nonideological posture is maintained. In Earley v. DiCenso, a companion case to Lemon v. Kurtzman, supra, the Court invalidated a Rhode Island statute authorizing salary supplements for teachers of secular subjects in nonpublic schools. The Court expressly rejected the proposition, relied upon by the District Court in the case before us, that it was sufficient for the State to assume that teachers in church-related schools would succeed in segregating their religious beliefs from their secular educational duties. ‘We need not and do not assume that teachers in parochial schools will be guilty of bad faith or any conscious design to evade the limitations imposed by the statute and the First Amendment. .. ‘... But the potential for impermissible fostering of religion is present.. . . The State must be certain, given the Religion Clauses, that subsidized teachers do not inculcate religion.... ‘A comprehensive, discriminating, and continuing state surveillance will inevitably be required to ensure that these restrictions are obeyed and the First Amendment otherwise respected.... ’ 403 U.S. at 618-619, 91 S.Ct. 2105 [at 2113-2114], 29 L.Ed.2d 745. The prophylactic contacts required to ensure that teachers play a strictly nonideological role, the Court held, necessarily give rise to a constitutionally intolerable degree of entanglement between church and state. Id., at 619, 91 S.Ct. 2105 [at 2114], 29 L.Ed.2d 745. The same excessive entanglement would be required for Pennsylvania to be ‘certain,’ as it must be, that Act 194 personnel do not advance the religious mission of the church-related schools in which they serve. Public Funds for Public Schools v. Marburger, 358 F.Supp. 29,40-41, aff'd., 417 U.S. 961, 94 S.Ct. 3163, 41 L.Ed.2d 1134. That Act 194 authorizes state funding of teachers only for remedial and exceptional students, and not for normal students participating in the core curriculum, does not distinguish this case for Earley v. DiCenso and Lemon v. Kurtzman, supra. Whether the subject is ‘remedial reading,’ ‘advanced reading,’ or simply ‘reading,’ a teacher remains a teacher, and the danger that religious doctrine will become intertwined with secular instruction persists. The likelihood of inadvertent fostering of religion may be less in a remedial arithmetic class than in a medieval history seminar, but a diminished probability of impermissible conduct is not sufficient: ‘The State must be certain, given the Religion Clauses, that subsidized teachers do not inculcate religion.’ 403 U.S. at 619, 91 S.Ct. 2105 [at 2114], 29 L.Ed.2d 745. And a state-subsidized guidance counselor is surely as likely as a state-subsidized chemistry teacher to fail on occasion to separate religious instruction and the advancement of religious beliefs from his secular educational responsibilities. The fact that the teachers and counselors providing auxiliary services are employees of the public intermediate unit, rather than of the church-related schools in which they work, does not substantially eliminate the need for continuing surveillance. To be sure, auxiliary services personnel, because not employed by the nonpublic schools, are not directly subject to the discipline of a religious authority. Cf. Lemon v. Kurtzman, 403 U.S. at 618, 91 S.Ct. 2105 [at 2113], 29 L.Ed.2d 745. But they are performing important educational services in schools in which education is an integral part of the dominant sectarian mission and in which an atmosphere dedicated to the advancement of religious belief is constantly maintained. See id., at 618-619, 91 S.Ct. 2105 [at 2113-2114], 29 L.Ed.2d 745. The potential for impermissible fostering of religion under these circumstances, although somewhat reduced, is nonetheless present. To be certain that auxiliary teachers remain religiously neutral, as the Constitution demands, the State would have to impose limitations on the activities of auxiliary personnel and then engage in some form of continuing surveillance to ensure that those restrictions were being followed. (Footnotes omitted) 421 U.S. at 369-372, 95 S.Ct. at 1765-1767. Additionally, as is clear from the above quotation, the court held the statute violated the entanglement principle because the state would become excessively entangled with the affairs of religion in order to insure that the teachers furnished by the state did not advance the religion of the parochial schools. Subsequent to Meek, citizens and taxpayers of Ohio filed an action against state