A Long Day's Journey into Legal Realism

By Eric Segall

There was a time when I thought constitutional law was a combination of text, history, precedent, and, of course, the personal values of the justices. I now know that Erwin Chemerinsky was right when he wrote in a famous Foreword to the Harvard Law Review that "constitutional law is now and always has been about values....There is nothing else." I began to learn that hard lesson when I was a young lawyer at the United States Department of Justice. 

I was the lead attorney in a federal case defending various federal programs giving different kinds of aid to public and private schools, including religious schools. A large part of the case involved the constitutionality of the federal government giving equipment and materials other than textbooks to private religious schools. The  problem for my case was quite simply that the Supreme Court had unequivocally held in Wolman v. Walters and Meek v. Pittenger that the government was not allowed to provide religious schools any educational equipment or materials other than secular textbooks (bus transportation to and from school and diagnostic testing were also allowed). When I first took over the case, I did not see a line of argument distinguishing those binding cases.

I represented the United States Department of Education, the lead defendant in the case, while the other defendants, the State of California, the San Francisco Unified School District, and the Archdiocese of San Francisco, were represented by extremely experienced counsel at major law firms. In addition, the United States Catholic Conference was allowed to intervene in the case, and their lawyer was a leading church/state litigator for Williams & Connolly, a prominent Washington D.C. law firm. Cross-motions for summary judgment were due in a month and the judge had set aside a whopping 60 minutes per side for oral argument. I had not yet had a single oral argument in any court but the judge insisted he wanted to hear from only one defendant, and it had to be the lawyer for the United States Department of Justice. And that lawyer was me.

After I finished my research, I could not come up with a non-frivolous argument defending the federal law giving equipment and materials to the schools. I went to my supervisor and told him so. We called a meeting of all the defendants and eventually the more senior of them concocted what I thought was a losing and unpersuasive but at least non-frivolous (by a hair) defense of the statute. Before I present that argument, I want to recount what happened at the oral argument.

We were before an elderly and grouchy district court judge in San Francisco. I had been told that he was quite hard of hearing and lawyers were required to speak extremely loudly (actually I was advised to yell). I approached the podium that day quite nervous because it was my first argument, the case was huge, there were reporters in the courtroom, and the senior lawyers at the big law firms I had been working closely with for the last few months were all seated at counsel table behind me. I wanted to do well in what I was pretty sure was a losing cause.

I began my argument as follows talking as loudly as I thought reasonable: "Good morning your Honor, my name is Eric Segall  and I represent the United States Department of Education in this litigation. I am taking over for ___." The judge looked at me and with an annoyed expression and said in a creaky old voice, "Yes, yes...Mr. Smiggy Bibby...please go on." 

I wasn't sure I had heard correctly because the way he mispronounced my name was so ridiculous. I didn't know what to do other than I was pretty sure I couldn't have a serious back and forth with the judge if he kept calling me "Mr. Smiggy Bibby." I could also feel the smiles and bottled up laughter emanating from my co-counsel behind me. I had participated in numerous moot courts with these folks but this particular issue had obviously not come up. 

I gathered myself and said even more loudly (yes I was yelling): "Thank you your Honor, as I was saying, my name is Eric Segall and I...." The ancient man interrupted me yet again and said, "Yes, yes Mr. Smiggy Bibby, go on with your argument." He continued to call me Mr. Smiggy Bibby for the next hour, and that was my nickname at the DOJ for the next three years. Sigh. But I digress.

In any event, to all of our surprise, we ended up winning the case, and my journey into legal realism began.

Here is what Wolman v. Walters said about the government giving or loaning educational equipment and materials other than textbooks to religious schools:

In Meek, the Court considered the constitutional validity of a direct loan to nonpublic schools of instructional material and equipment, and, despite the apparent secular nature of the goods, held the loan impermissible. MR. JUSTICE STEWART, in writing for the Court, stated: 'The very purpose of many of those schools is to provide an integrated secular and religious education; the teaching process is, to a large extent, devoted to the inculcation of religious values and belief. Substantial aid to the educational function of such schools, accordingly, necessarily results in aid to the sectarian school enterprise as a whole. [T]he secular education those schools provide goes hand in hand with the religious mission that is the only reason for the schools' existence. Within the institution, the two are inextricably intertwined.' Thus, even though the loan ostensibly was limited to neutral and secular instructional material and equipment, it inescapably had the primary effect of providing a direct and substantial advancement of the sectarian enterprise....[Thus], we hold [the law] to be unconstitutional. 

The equipment and materials held unconstitutional by the Court in Wolman included "projectors, tape recorders, record players, maps and globes, science kits, weather forecasting charts, and the like." The federal program at issue in my case involved similar types of aid, clearly barred by Wolman. The non-frivolous but highly unpersuasive argument we made in the district court was that the statutes in both Wolman and Meek gave aid only to private school students (religious and non-religious) whereas the federal program also included public schools. Thus, I argued (in-between being called Mr. Smiggy Bibby) those cases did not bind the court. 

This argument sounds reasonable on the surface but, of course, the reason the statutes in Meek and Wolman only applied to private school students and not public school students was because the states in both cases had separate laws funding public schools, which received much more financial assistance than the private schools. Our argument made little sense given there was absolutely no reason to think the Court would have come out differently in the prior cases had the states simply provided all its educational assistance to all schools, public and private, in the same law as opposed to in different laws, as the plaintiff Americans United for Separation of Church and State forcefully argued. At the time, I wasn't even sure the argument satisfied Federal Rule of Civil Procedure 11, which requires lawyers to have a reasonable good faith belief in both the law and facts they sign onto in their briefs. That fear kept me up many nights, as being sanctioned by the court in one's first big case is not a great start to a legal career.

So I lost sleep until the we found out we won the case and the federal program was upheld. I was shocked. Here is the relevant part of the district court's opinion:

In Wolman, the Court found that the equipment would unavoidably aid the religious role of the parochial school because none of the aid was directed to public schools. In Grand Rapids [a later case], in which forty of the forty-one schools involved were found to be pervasively sectarian, the Court was concerned that the sectarian schools would be the real beneficiaries, and expressed its view that the idea that the children were the ones who really benefited was a fiction. Neither of these cases bear any similarity to the facts here, where seventy-four percent of the Chapter 2 funds at issue go to  public school students and a substantial portion of the funding that goes to nonpublic school students goes to students at secular private schools.

The district court judge was just wrong on the law. Nothing in the prior cases turned on whether the laws also applied to public schools, and the opinions in those cases made clear that textbooks were the only permissible aid the government was allowed to loan or give to religious schools. In fact, after Meek and Wolman, as well as a few other cases, the entire world knew that the law of parochial school aid was that 1) textbooks were the only allowable type of tangible assistance the government could give to religious schools; and 2) that rule, of course, made no sense and was totally incoherent (a realization that hit me hard when I researched the case law). The case law was so well-settled that Sen. Daniel Patrick Moynihan quipped that the next big challenge after Wolman would be whether atlases were more like books, which were allowed, or maps, which were not allowed (an obviously insane problem displaying the incoherent yet binding Supreme Court doctrine).

I left DOJ while the case was appealed. To my great surprise, the Ninth Circuit upheld the district court decision on somewhat different grounds but alas reasoning no less inconsistent with Meek and Wolman. The panel decision even said this before descending into incoherent babble:

In Wolman, the Court reaffirmed Meek's holding that the distinction between textbooks and other instructional materials and equipment is constitutionally significant. The Court allowed the provision of textbooks to parochial school students, but prohibited the provision of neutral and secular instructional materials and equipment, such as tape recorders, record players, maps, and science kits, to the same students. 

A large part of the panel's reasoning was that the distinction between books and other materials was incoherent and obviously not justified by the text or history of the establishment clause. But, that was the law, coherent or not, the Court had handed down. The dissenting judge said the following:

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 and Wolman v. Walters. 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.

When the motion by the plaintiffs for the case to go en banc was denied, the dissenting judges said this: 

We find it difficult to understand what possible rationale could underlie our court's decision not to go en banc in this case. A panel of this court voted 2-1 to ignore the clear dictates of the United States Supreme Court as set forth in two major cases. It did so in a sensitive area of constitutional law involving the Bill of Rights. By failing to take this case en banc, we appear to endorse the panel's refusal to follow Supreme Court precedent and to signal to other panels that they too may ignore the binding effect of Supreme Court cases whenever they believe that the law should be different. Because I am certain that this is not the message the court wishes to send, I can only assume instead that our action today is a product of the fact that the panel's decision restricts rather than expands the protections afforded by the Constitution. Shrinking the Constitution is a popular course of action in the courts these days. 

Even worse, the conservative Fifth Circuit  had the same case and decided to follow the Meek and Wolman precedents. The court said the following after painstakingly reviewing the Ninth Circuit's attempts to sustain the federal law:

Meek and Wolman have squarely held that what the government is attempting to accomplish through Chapter 2, it may not do. No case has struck down Meek or Wolman. We could take out our judicial divining rod and try to predict, on the basis of what has been said since Meek and Wolman, what the present Court would do if called upon to weigh the constitutionality of Chapter 2. But such a course would, we think, take us beyond our role as a Circuit Court of Appeals, bound to follow the dictates of the Supreme Court.  

The Fifth Circuit even said that the main rationale for the district court and Ninth Circuit's opinions, that the laws in Meek and Wolman applied only to private schools not public schools, was a misreading of both sets of laws as well as the Court's prior cases. The Fifth Circuit recognized it was stuck with the books/everything else distinction and ruled the federal program unconstitutional.

Professor Michael McConnell, who argued the Fifth Circuit case in the Supreme Court recently reminded me of the bizarre nature of the 9th Circuit issuing a conservative decision in a major church/state case while the Fifth Circuit reached the liberal result. In any event, the Court in Mitchell v. Helms, changed the law dramatically and held that the government may assist religious schools with equipment and materials as long as it does so through a generally applicable aid program that applies the same to religious and non-religious private schools. For what it is worth, I agree with the rule. 

This entire litigation provided me quite an education. First, we went for many years with a constitutional rule that books and only books could be provided by the government to religious schools. That rule was completely absurd. Why books but not globes, chalk, videos, or maps? 

Second, both the district court and Ninth Circuit opinions in my case were completely and irrevocably at odds with binding and clear Supreme Court precedent. The precedent might have been awful, but it wasn't opaque or subject to misinterpretation. Yet, the judges disobeyed the Court. 

Third, and just to complete the circle, both the Ninth and Fifth circuit decisions, and then the Court's decision, were all about whether the aid violated the establishment clause. No one argued that if the states or federal government assisted private secular schools the free exercise clause required the same aid to be provided to religious schools whether the state wants to provide it or not. But, in a trilogy of cases ending with last term's Carson v. Makin, the law is now exactly the opposite of what it was prior to Helms. We went from states not being allowed to provide any educational materials other than books to religious schools to the state being obligated to provide such aid if it also helps children in private secular schools. That dramatic 180-degree turn happened for one reason and one reason only: the people on the Supreme Court changed. 

The rule of law requires that as a general matter like cases should be treated alike, but the story of parochial school aid over the last half-century is exactly the opposite. The Court's decisions have been inconsistent and incoherent, frustrating lower court judges and baffling commentators. What I have since learned is that most of constitutional "law" fits that description, and that is why, when it comes to constitutional law, I am a legal realist all the way down. It was a difficult and painful journey that began when I won a high profile case with a legal argument that was unpersuasive and just plain wrong.