Appeal from an order of the United States District Court for the Eastern District of New York, Mark A. Constantino, Judge, denying plaintiff's motion for a preliminary injunction against implementation in public school of a segregated remedial education program for parochial school students. Reversed and remanded.
Before: KAUFMAN, KEARSE, and ALTIMARI, Circuit Judges.
Plaintiffs The Parents' Association of P.S. 16, et al. ("Parents"), appeal from an order of the United States District Court for the Eastern District of New York, Mark A. Costantino, Judge, denying their motion for a preliminary injunction against the implementation by defendants Nathan Quinones, Chancellor of the City School District of the City of New York, et al. (the "City"), of a federally funded remedial education program at Public School 16 in Brooklyn, New York ("P.S. 16"), for parochial school students from the Beth Rachel Satmar Hasidic School ("Beth Rachel"). Parents contended that the program planned by the City would violate their rights under, inter alia, the Establishment Clause of the First Amendment of the Constitution of the United States, as applied to the states through the Fourteenth Amendment, and the Equal Protection Clause of the Fourteenth Amendment. The district court denied Parents' motion, finding that plaintiffs had not established any violation of their constitutional rights or any irreparable injury. On appeal, Parents contend that the district court applied erroneous legal principles and erred in denying their motion without an evidentiary hearing. We find merit in these contentions and we therefore reverse the order denying Parents' motion for a preliminary injunction and remand for entry of an injunction against implementation of the proposed program pending the adjudication of the merits of Parents' claims.*fn1
P.S. 16 is a public school located in the Williamsburg section of Brooklyn, providing elementary level education for boys and girls. The great majority of the students attending P.S. 16 are Hispanics. Beth Rachel, located some four blocks away, is a private elementary school affiliated with the Satmar Hasidic Jewish sect; all of its students are girls of the Hasidic Jewish faith. Both P.S. 16 and Beth Rachel are located within Community School District 14 ("District 14").
Chapter 1 of the Education Consolidation and Improvement Act of 1981 ("Chapter 1"), 20 U.S.C. § 3801 et seq., which superseded Title I of the Elementary and Secondary Education Act of 1965, established a federally funded program to provide remedial instruction and related support services to elementary and secondary school children who are "educationally deprived" and who live in an area--such as Williamsburg--having a high concentration of low income families. The purpose of the program is to meet the remedial educational needs of these students that cannot otherwise be met by the schools they attend. States receiving Chapter 1 funding are required to provide such remedial services to private as well as public school students. 20 U.S.C. § 3806(a). Prior to 1986, the City provided such remedial instruction and services to children attending private schools, including parochial schools such as Beth Rachel, by sending public school teachers into the private schools to conduct classes.
In 1985, the United States Supreme Court in Aguilar v. Felton, 473 U.S. 402, 105 S. Ct. 3232, 87 L. Ed. 2d 290 (1985) (" Aguilar "), upholding the decision of this Court in Felton v. Secretary, United States Department of Education, 739 F.2d 48 (2d Cir. 1984) (" Felton "), ruled that "' the use of federal funds to send public school teachers and other professionals into religious schools to carry on instruction, remedial or otherwise, or to provide clinical and guidance services'" violated the Establishment Clause of the First Amendment. Aguilar, 105 S. Ct. 3232 at 3236 (quoting Felton, 739 F.2d at 50). In an effort to comply with the restrictions imposed in Aguilar, the City adopted a plan to conduct remedial education classes for the Beth Rachel students on the premises of P.S. 16.
A. Hasidic Constraints and the City's Plan
In general, the Hasidic faith stresses a strict separation between the Hasidim and the rest of society. Many of the Satmar Hasidim speak Yiddish in their homes, and Yiddish is the principal language of many of the Beth Rachel students. As part of their Orthodox Jewish beliefs, the Hasidim require the separation of males and females for virtually every activity, including schooling.
In an effort to induce Beth Rachel administrators to send their students to P.S. 16 for remedial education classes, the City adopted the plan here challenged (the "Plan"). A group of nine classrooms in the northwest wing of P.S. 16 was dedicated to the use of the Beth Rachel students. That section of the school was closed off from the rest of the school--used by the public school students--by the construction of swinging doors and supporting walls in a previously open corridor. Beth Rachel students were assured that their Chapter 1 classes would be conducted separately from any such classes for the public school students. Public school teachers would be provided; all would be women and all would be Yiddish-speaking. English would be taught as a second language ("ESL"), with resort to Yiddish to facilitate the Beth Rachel students' understanding. A reading method known as "Distar," previously tried and rejected by District 14 for its public school students, would be used for the Beth Rachel students since that method is used in their regular parochial school classes.*fn2
According to affidavits and exhibits submitted by Parents, the City stated both to them and to the news media that the Plan was designed having in mind the "differences in religion and culture between the Hasidics and the rest of the children" (Affidavit of plaintiff Nelida Morales, dated August 28, 1986, paragraph 25 ("First Morales Affidavit"), and that without these features, the Beth Rachel students would refuse to attend remedial classes in P.S. 16 for religious reasons.
Parents commenced the present suit, challenging principally the segregation of the Beth Rachel students from the P.S. 16 students. They took the position that they had no objection to having the remedial classes at P.S. 16 include both public school and Beth Rachel students, but that the provision of Yiddish-speaking teachers, the teaching of English as a second language for Beth Rachel students while ESL is not available to P.S. 16's Hispanic students, and the enforced physical separation of the two groups gave at least the appearance that the City was endorsing the tenets of the Hasidic religious sect. In support of their position, Parents submitted numerous new articles reporting the views of the respective parties. A Newsday article of September 11, 1986, for example, reported the Hasidic view as follows:
"We struggle very hard to maintain our belief and our culture," said Rabbi Ehren Reich of the Beth Jacob Yeshiva in Borough Park, ...