Supreme Court Upholds Program Aiding Religious Schools

By Mark Walsh — June 28, 2000 8 min read
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Ruling in a case with implications for government aid to private schools as wide-ranging as tuition vouchers and Internet connections, the U.S. Supreme Court has upheld a federal program that lends computers, software, and library books to religious schools.

In the 6-3 decision June 28—involving the program once known as Chapter 2 and now called Title VI—a majority of justices also partially struck down two landmark Supreme Court rulings from the 1970s that barred the government provision of maps, charts, overhead projectors, and other instructional materials to religious schools.

But while six justices agreed the Chapter 2 program should be upheld, no opinion commanded a majority of the court. Writing for a four-member plurality in Mitchell v. Helms (Case No. 98-1648), Justice Clarence Thomas said: “It is the students and their parents—not the government—who, through their choice of school, determine who receives Chapter 2 funds. The aid follows the child.”

He was joined by Chief Justice William H. Rehnquist and Justices Antonin Scalia and Anthony M. Kennedy. Justice Sandra Day O’Connor, joined by Justice Stephen G. Breyer, wrote a concurring opinion that said her four colleagues had gone too far by suggesting that any government aid to religious schools could be upheld as long as “the aid is offered on a neutral basis and the aid is secular in content.”

“The plurality opinion foreshadows the approval of direct monetary subsidies to religious organizations, even when they use the money to advance their religious objectives,” Justice O’Connor added.

She said she would stick with a test laid out by the high court’s 1997 ruling in Agostini v. Felton, which allowed federal Title I instructors to return to parochial school classrooms. That test asks whether the aid results in government indoctrination, whether the program uses religion in defining its recipients, and whether the aid creates excessive entanglement between government and religion.

In a lengthy dissent, Justice David H. Souter argued that the plurality view expressed in Justice Thomas’ opinion would be a radical departure from the court’s cases involving the First Amendment clause prohibiting a government establishment of religion.

"[T]he plurality’s proposal would replace the principle of no [government] aid [to religion] with a formula for generous religious support,” said Justice Souter, who was joined by Justices John Paul Stevens and Ruth Bader Ginsburg.

1 Million Children

The case started in 1985, when Mary Helms and Marie Schneider sued the Jefferson Parish, La., school district over various forms of federal and state aid that reached religious schools in the New Orleans suburb. The two mothers initially were concerned about bus transportation that they believed was tailored for the benefit of the district’s large number of Roman Catholic schools.

But their federal lawsuit also challenged state programs that provided special education teachers and school supplies to private schools, and the Chapter 2 program as it was carried out in their community. The plaintiffs said that the district had provided religious books for Catholic school libraries and that the parochial schools had relied on the federal program to stock their library shelves.

The U.S. Court of Appeals for the 5th Circuit, based in New Orleans, ruled last year that the loan of computers and library books to religious schools under Chapter 2 was unconstitutional. Those items are similar to the maps, projectors, and other equipment forbidden by the Supreme Court in the 1975 case of Meek v. Pittenger and the 1977 case of Wolman v. Walter, the appellate court said.

The Clinton administration joined a group of Catholic school parents from Jefferson Parish in appealing the decision to the Supreme Court. The administration defended the extension of Chapter 2 aid to religious schools.

Chapter 2, currently known as Title VI, is a block grant administered under the Elementary and Secondary Education Act of 1965. The program authorizes aid such as computers, software, and library materials to states and school districts for school improvement programs. The program requires districts to ensure that children in private schools have the opportunity to benefit regardless of whether their schools are religiously affiliated.

More than 1 million children in religious schools are believed to benefit from Chapter 2 in the form of computers and library books lent to their schools. The Clinton administration has proposed changes to the program in the reauthorization of the ESEA now before Congress, but it favors continuing an aid program that allows computers and other instructional materials and equipment to be lent to private schools, including religious schools. The administration also favors including religious schools in the government-supported efforts to ensure that all classrooms are linked to the Internet.

Secretary of Education Richard W. Riley praised the outcome of the case.

The decision “will help ensure that equitable, supplemental services are provided to children under Title VI of the Elementary and Secondary Education Act and that all children have access to computers and advanced technologies,” he said in a written statement.

2 Precedents Overruled

While Justice Thomas’ and Justice O’Connor’s opinions failed to agree on the proper test for weighing the constitutionality of government aid to religion, the two opinions did agree on overruling key holdings in Meek and Wolman.

“Because computers constitute instructional equipment, adherence to Meek and Wolman would require the exclusion of computers from any government school aid program that includes religious schools,” Justice O’Connor said. “Yet, computers are now as necessary as were schoolbooks 30 years ago, and they play a somewhat similar role in the educational process.”

Both opinions said the loan of computers should be treated like the loan of secular textbooks to religious school students, which the high court upheld in the 1968 case of Board of Education of Central School District No. 1 v. Allen.

Lee Boothby, a Washington lawyer who for years has represented the Louisiana taxpayers opposed to Chapter 2 aid to religious schools, said he agreed that Meek and Wolman had been all but eviscerated. “I haven’t figured out if there is anything left to them, but if there is, it isn’t much,” Mr. Boothby said.

The only bright side from his perspective was that Justice Thomas’ expansive view of the forms of government aid to religion that would pass muster did not command a majority.

“Obviously, Justices O’Connor and Breyer believe the establishment clause requires safeguards to be in place on any government-funded program to ensure that public funds aren’t utilized for religious purposes,” he said.

Mark E. Chopko, the general counsel of the U.S. Catholic Conference, the policy arm of the nation’s Roman Catholic bishops, said he was pleased by a passage in Justice Thomas’ opinion that repudiated past high court opinions that weighed whether a private school was “pervasively sectarian” as a factor in the constitutional inquiry for an aid program.

Justice Thomas noted that opposition to aid to “sectarian” schools “acquired prominence in the 1870’s with Congress’s consideration (and near passage) of the Blaine Amendment, which would have amended the Constitution to bar any aid to sectarian institutions. Consideration of the amendment arose at a time of pervasive hostility to the Catholic Church and to Catholics in general, and it was an open secret that ‘sectarian’ was code for ‘Catholic,’ ” Justice Thomas wrote.

“It was nice that Justice Thomas recognized that the term ‘sectarian’ itself was bigoted,” Mr. Chopko said.

Voucher Tea Leaves

As for the use of tuition vouchers at religious schools, the opinions are open to interpretation, and they certainly will be combed over in the weeks and months ahead.

Justice Thomas’ opinion used much language that has been embraced by the voucher movement, such as his endorsement of the “principles of neutrality and private choice,” and his approving reference to government aid following the child.

And Justice O’Connor, while distancing herself from Justice Thomas’ broad view of permissible direct aid to religious schools, referred in apparent approval to “true private- choice programs.”

Voucher advocates argue that such aid is constitutional if it is provided neutrally and the government money reaches religious schools through the private choices of parents.

“I think school voucher supporters are better off today than we were yesterday,” said Matthew Berry, a lawyer with the Institute for Justice, a Washington legal organization that has defended voucher programs across the country.

“I don’t think anything Justice O’Connor said with respect to true private choice programs was damaging to us at all,” he added. “And it was encouraging that Justice Breyer joined her concurrence. That opens up the universe to us from five potential votes [to uphold religious school vouchers] to six.”

But Elliot Mincberg, the vice president and legal director of People for the American Way, said it was far from clear the concurring opinion that Justice O’Connor or Justice Breyer was prepared to uphold private school vouchers.

“I don’t think they are tipping their hands,” said Mr. Mincberg, whose Washington advocacy group opposes such vouchers. “At this point, we’re just reading tea leaves as to what this Supreme Court would do on the voucher issue.”

Secretary Riley emphasized that while the Clinton administration supported the Chapter 2 program in religious schools, it does not support vouchers for such schools.

“The court’s decision today is not about vouchers,” he said. “Under the current Title VI program, no funds go to any private school. … Unlike vouchers, the computers and other instructional materials provided for private school students under Title VI must be supplemental to the basic education that otherwise would be provided for these students.”


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