Walker
Walker v. San Francisco Unified School District
Opinion
Concurrence in Part
Fernandez, J.
concurring and dissenting:
I concur in Part I of the majority opinion, but I dissent from Part II.
I agree with the majority’s suggestion in Part II that a constitutional distinction between books for children and materials for schools is untenable. The thought that the latter might somehow be diverted to religious programs but that the former cannot be defies our knowledge of logic, science, human nature, and religion. Thus, I applaud the majority’s attempt to dispense with the contrary holdings of Meek v. Pittenger, 421 U.S. 349 , 95 S.Ct. 1753 , 44 L.Ed.2d 217 (1975) and Wolman v. Walter, 433 U.S. 229 , 97 S.Ct. 2593 , 53 L.Ed.2d 714 (1977). I also applaud the majority’s overall analysis, which ultimately looks upon the establishment clause as a kind of equal protection clause, determines that no special benefit is conferred upon parochial schools by the program at hand, and declares that no special detriment should be imposed upon parochial schools.
Nevertheless, I must dissent as to Part II because what the Supreme Court gives, the Supreme Court must take away. That Court has given us the books-for-kids versus materials-for-schools dichotomy. Only it can take it away.…
Lead Opinion
Tang, J.
Opinion by Judge TANG; Partial Concurrence and Partial Dissent by Judge FERNANDEZ.
This appeal involves the provision of public educational services to parochial school students under Chapters 1 and 2 of the Education Consolidation and Improvement Act of 1981 (ECIA), as amended 20 U.S.C. § 2701 , et seq. (1988).
In 1985, the Supreme Court held that public school districts violated the Establishment Clause by providing Chapter 1 remedial educational services in parochial school classrooms. Aguilar v. Felton, 473 U.S. 402 , 105 S.Ct. 3232 , 87 L.Ed.2d 290 (1985). In response, school districts across the country, including the San Francisco Unified School District (the District), began providing remedial classes to parochial school students via “'mobile classrooms” and computer-aided instruction.
We are called upon to decide whether temporarily parking these mobile classrooms on parochial school property, and whether certain aspects of administering and funding the Chapter 1 program, violate the Establish *1453 ment Clause. We must also determine whether providing educational equipment and materials to parochial schools under Chapter 2 is constitutional.