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Chapter 2 Aid to Religious Schools Ruled Unconstitutional

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Acting in a case challenging a broad array of public programs that aid religious schools in Louisiana, a federal judge last week issued what is thought to be the first court ruling that federal Chapter 2 aid to such schools is unconstitutional.

U.S. District Judge Frederick J.R. Heebe of New Orleans also struck down a Louisiana program that provides educational materials and equipment to parochial schools.

In a summary judgment handed down March 27, Judge Heebe declared that the two programs impermissibly advance religion and excessively entangle church and state, violating the First Amendment's ban on state establishment of religion.

The programs were among several cited in a five-year-old lawsuit, Helms v. Cody, that seeks to overturn various forms of federal and state aid that benefit private religious schools in the state. (See Edu4cation Week, March 21, 1990.)

A trial on the constitutionality of church-school aid under the federal Chapter 1 program and several other state programs was scheduled to begin April 2.

The Chapter 2 ruling "is extremely significant, because in almost every school district in the country, religious private schools are getting these benefits," said Lee Boothby, general counsel for Americans United for Separation of Church and State. The Washington-based lobbying group is backing the suit, which was filed by two parents of public-school pupils in Jefferson Parish, La.

Mr. Boothby said the ruling was the first of its kind on Chapter 2 aid to religious schools.

The Chapter 2 program, enacted in 1981, consolidated numerous separate aid programs for elementary and secondary schools. The law requires that nonpublic schools that want to participate in the program also receive funding.

In 1985, the year the lawsuit was filed, 41 of the 46 nonpublic schools in Jefferson Parish, a suburb of New Orleans, were religiously affiliated. Of those, 34 were Roman Catholic. The religious schools received an average of $5,064 in Chapter 2 aid that year, which went for such materials as library books, maps, globes, computer equipment, and audio-visual equipment.

Under the separate state aid program, nonpublic schools in Jefferson Parish received an average allocation of $11,595 for books and supplies.

In reaching his summary judgment, Judge Heebe applied the U.S. Supreme Court's three-pronged test for determining whether government aid to religious schools is constitutional. The test requires that such aid must have a secular legislative purpose, must not have the primary effect of advancing or inhibiting religion, and must not foster excessive entanglement between government and a religious institution.

'Sectarian' Advancement

In the Helms case, the judge ruled, the Catholic schools that make up a majority of those participating in the programs in Jefferson Parish are pervasively sectarian, and the aid they receive "has the primary effect of providing direct and substantial advancement of the sectarian enterprise."

He expressed a concern that the materials provided under the programs could be diverted to religious use unless there were extensiveoversight by state authorities, which would be "an intolerable government presence in the affairs of the church."

The defendants in the suit include U.S. Secretary of Education Lauro F. Cavazos and the federal Education Department, as well as state and Jefferson Parish education agencies and officials.

A group of Catholic parents with children in local parochial schools has intervened in the case with the backing of the U.S. Catholic Conference.

Mark Chopko, general counsel for the conference, questioned whether the judge's ruling would have a broad impact across the nation, since the methods of implementing Chapter 2 aid vary.

"It's a narrow ruling," he said.

The provision of federal aid to church-affiliated schools, he added, "recognizes the federal idea that where a child attends school should not matter. What matters is the quality of the education they get."

The U.S. Education Department had no comment on the ruling late last week.

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