Pulido v. Cavazos

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BEAM, Circuit Judge,

concurring and dissenting.

I fully concur in part II of the panel opinion. I respectfully dissent as to part I.

I begin my partial dissent with the observation that Supreme Court jurisprudence with regard to the interplay between the free speech, establishment, and free exercise clauses of the first amendment13 is somewhat incongruous and definitely difficult to apply to diverse interests. The first amendment by word or history does not require an absolute separation of church and state. Yet the quest for such separation, although, in practice, impossible, seems always to be the goal, a goal which is never achieved. In this context, I advance my legal conclusions in this case.

The Supreme Court has said that classrooms in which we educate sectarian students with public funds must be located at a “neutral site off the premises of the nonpublic schools.” Wolman v. Walter, 433 U.S. 229, 248, 97 S.Ct. 2593, 2605, 53 *929L.Ed.2d 714 (1977). Clearly, then, the positioning of mobile classrooms on private school premises 14 does not pass constitutional muster under Supreme Court standards. Classrooms placed at the curb of a public street a few steps from the door of the church-related school are no less offensive, constitutionally speaking. Wolman stresses the need for a “neutral site.” Id. at 248, 97 S.Ct. at 2605. The “off the premises” language is, in my view, secondary. It is clear that the Supreme Court finds no location on church grounds acceptable. It is equally clear that a classroom in a religious setting “off the premises of the nonpublic” school is also unacceptable. I would, accordingly, find, in keeping with Supreme Court mandates, that use of classrooms at the locations set forth in this case, at the curb or on the premises, violates the Constitution.

. There is little ambiguity occasioned by the Supreme Court’s use of the word premises. To divide a location into buildings and grounds proves little since, as argued by Pulido, many if not most private religious schools are part of a larger tract of land upon which a church, a rectory, a convent, outdoor statuary, and other religious objects are frequently located. They are part of the ambiance of the "premises” and repel the idea that a "neutral site” can be provided anywhere on such real estate.

. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech_” U.S. Const, amend I.