The constitutionality of Louisiana’s wide-ranging program of state aid to church-affiliated schools will be tested in federal court beginning next week, some five years after a suit challenging the unusual system was filed.
At issue in the case, scheduled to go to trial March 26 before U.S. District Judge Frederick Heebe of New Orleans, are such forms of assistance to religious schools as free bus transportation, reimbursement for state-mandated administrative tasks, free library books, and the provision of special-education teachers.
That range of aid goes beyond that provided to nonpublic schools by any other state, according to Lee Boothby, general counsel for Americans United for Separation of Church and State, a Washington-based lobbying group that is backing the suit.
“The cumulative effect of all these programs,” he argued in an interview last week, “is that there is the funding of both a public and separate parochial school system by the taxpayers.”
Those practices, the suit charges, violate the First Amendment’s ban on state establishment of religion.
In addition to challenging the Louisiana programs, the lawsuit aims to halt the provision of federal aid to religious schools under the Chapter 1 and Chapter 2 programs.
Defendants in the suit, which was brought by two mothers of public-school students, include the U.S. Education Department and Secretary of Education Lauro F. Cavazos, as well as state and local education agencies and officials.
Supporters of the Louisiana system argue that the services provided to religious schools do not entangle church and state to an unconstitutional degree. Rather, they say, the programs provide taxpayers who choose to send their children to such schools with some benefits for the school taxes they pay.
“All of these programs are designed to help individual students get an education and should be available to all children,” William A. Guste, the state attorney general, said last week. “To us it is very clear these are services for children, not to advance religion.”
Whatever the outcome of the trial, lawyers involved in the case say, the suit could eventually reach the U.S. Supreme Court, which could use it as a vehicle for redefining the constitutional limits of state aid to religious schools.
Tradition of Parochial Aid
The case began in 1985, when Neva Helms and Marie Schneider, parents of students in the Jefferson Parish public schools in suburban New Orleans, became upset that school authorities required some public-school students to begin classes an hour early so that school buses would be available to transport nonpublic-school students.
Their subsequent lawsuit against the state and the school board questioned the constitutionality of the state’s various forms of aid to religious schools.
According to Americans United, Louisiana’s tradition of generosity to nonpublic schools has come about through strong lobbying efforts backed by the Roman Catholic Church in the state.
While Northern Louisiana is mostly Protestant, the southern half of the state, including New Orleans and its surrounding parishes, or counties, is heavily Catholic.
Statewide, about 762,000 students attend public schools, while some 134,000 attend state-approved nonpublic schools, according to state officials. Of the latter, nearly 100,000 attend some 245 Catholic schools.
In the 1930s, under Louisiana’s populist governor, Huey P. Long, the state began providing free textbooks to parochial schools as well as public schools.
State law also allows districts to provide bus transportation for nonpublic-school students, a practice that has been upheld by the U.S. Supreme Court under certain conditions.
In the late 1960s, according to published accounts, some Catholic-school parents could not get local public-school officials to provide transportation. Archbishop Phillip Hannan of New Orleans then tapped two ex-journalists familiar with the workings of the state capital to form an organization to lobby for aid to nonpublic schools.
While neither the Catholic Church nor the lobbying organization, the Louisiana Federation of Citizens for Educational Freedom, or cef, is a defendant in the lawsuit, their activities are at issue.
The cef has played a key role in the establishment and maintenance of funding for many of the state-aid programs for nonpublic schools, the program’s critics say. Last year, for example, the legislature approved a 22 percent increase in such aid, despite deep fiscal troubles in the state that have caused cutbacks in other areas.
Cef officials declined to comment last week on their activities or the lawsuit.
The $16.7 million appropriated last year for nonpublic-school aid included $200,000 to create a new Bureau of Non-Public Education in the state education department. The lawsuit does not challenge the law authorizing the new agency.
That measure did not lay out any of the bureau’s responsibilities, leading some critics to fear that its chief task would be to lobby within the government for greater support to nonpublic schools.
State Superintendent of Education Wilmer Cody, meanwhile, has chosen not to set up the bureau, saying its functions are already being handled by other department officials.
Programs at Issue
When the trial opens next week, state-aid programs in several areas will face scrutiny by the court.
Another issue was settled late last year--the state’s salary supplements for lunchroom workers in nonpublic schools. On that issue, parties to the lawsuit agreed to have the state pay the supplements to a private corporation, which would hire lunchroom workers and assign them to nonpublic schools.
That will prevent the state aid from being diverted to religious purposes by the schools, Mr. Boothby said, and will ensure that workers are hired without regard for their religious beliefs.
The issues remaining unresolved include the following areas:
- Transportation. The U.S. Supreme Court has approved the busing of nonpublic-school students along established public-school routes or the reimbursement of private-school parents for the costs of public transportation, Mr. Boothby said.
But in Jefferson Parish, the suit charges, the system gave preferential treatment to church-school students in designing routes and setting schedules.
In addition, it maintains, the district has allocated as much as 20 percent of its transportation resources to busing parochial students to schools outside their public-school attendance districts--a benefit not available to public-school students who choose not to attend their neighborhood schools.
In court documents, Jefferson Parish school officials state that most bus routes are designed to take students to a single school, public or nonpublic, for reasons of convenience and safety.
- Chapter 2. Federal Chapter 2 funds have been used to make library materials and instructional equipment available to nonpublic schools in Louisiana, and elsewhere across the country. The plaintiffs charge that there is no monitoring of whether Louisiana religious schools use the funds to buy religious materials.
Mr. Boothby also said that audio-video equipment purchased with the funds can be easily converted to sectarian uses.
“If they get an opaque projector, how are you going to monitor that to make sure they don’t project a picture of Christ on it?” he said.
The defendants maintain in court documents that the titles of publicly funded books and instructional materials ordered by nonpublic schools in Jefferson Parish are reviewed by public-school officials, and that religious schools provide assurances to the district that materials and equipment acquired under Chapter 2 will be used in compliance with program guidelines requiring that such materials be secular.
- Free state books and supplies. Nonpublic schools are able to order an allotment of books, paper, software and other supplies from the state. That program, Mr. Boothby said, is unconstitutional because it affords the same potential for abuse that Chapter 2 allotments to nonpublic schools do.
- Special education. The suit challenges the assignment of public4school teachers to conduct special-education classes at parochial schools because, it contends, the practice represents the “symbolic union of church and state.”
The defendants counter that, “given the unique circumstances of special education, the risk that publicly employed special-education teachers will seek to advance religion in the nonpublic schools is no greater than the risk that they will do so in the public schools.”
- Reimbursement of administrative costs. The state reimburses nonpublic schools for administrative tasks required by law, such as maintaining records and filling out reports. One parochial school, according to court papers, claimed more than $60,000 for such activities for one year. Those tasks, the suit says, included 168 hours spent developing schedules--a length of time more than eight times the state-set parameter of 20 hours.
“We feel this is nothing but a device to funnel funds to parochial schools,” Mr. Boothby said.
The defendants maintain that because the reimbursement program is consistently underfunded, there “is no substantial risk that the program will have the primary effect of advancing religion.”
Americans United is also using the case to challenge a measure passed by the Congress to provide funding to help religious schools provide Chapter 1 remedial education at alternative sites. That legislation was a response to the Supreme Court’s 1985 decision in Aguilar v. Felton, which barred public schools from sending their employees to church-affiliated schools to teachChapter 1 classes.
The Congress appropriated money for capital expenditures to help schools provide the services off the religious-school premises. The Louisiana plaintiffs say that is an unconstitutional direct benefit to parochial schools.
In two recent lawsuits backed by Americans United, federal judges in Missouri and Kentucky have struck down a U.S. Education Department regulation governing Chapter 1 aid to students in church-affiliated schools.
The judges have ruled that the department’s regulation forcing school districts to deduct the cost of aiding such students from “off the top” of their entire Chapter 1 allocation violates the First Amendment’s ban on government establishment of religion. (See Education Week, March 7, 1990.)
