High Court Hears Arguments Over Aid to Religious Schools

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The federal government's loan of computers, software, and other instructional materials to religious schools is "entirely constitutional" under recent U.S. Supreme Court precedents, a lawyer for several parents of children in Roman Catholic schools told the justices last week.

The program that provides such aid should not be struck down using 1970s high court rulings that barred the provision of maps, charts, overhead projectors, and other instructional materials to religious schools, Michael W. McConnell argued.

"Since that time, technology has changed, and this court's precedents have changed," he said.

But the lawyer for two suburban New Orleans mothers who challenged the federal aid program known as Title VI told the justices that lending computers to religious schools was akin to providing financial support to keep such schools open.

"Computers today are basic to the operation of a school—they are like bricks or the blackboard," said Lee Boothby. "If the government provides them, it is actually supporting the [religious] school."

Those arguments came Dec. 1 in one of the most important church-state cases to reach the Supreme Court in years. In Mitchell v. Helms (Case No. 98- 1648), the justices must decide whether the federal Title VI program violates the First Amendment's prohibition against a government establishment of religion.

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 the government program 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 ruled.

Title VI, formerly known as Chapter 2, 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 Title VI 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.

Many observers are watching the current case for clues on how the court might rule on voucher programs that include religious schools. The case could also affect the Clinton administration's efforts to wire every school in the country to the Internet.

But, as Mr. Boothby quipped to the justices last week, "This case came along before Vice President Gore invented the Internet."

Drawing a Line

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 parish's large number of Catholic schools.

But their federal lawsuit also challenged state programs that provided special education teachers and school supplies to private schools, and Title VI as it was carried out in their community. They 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 5th Circuit appeals panel said that because the Supreme Court has yet to directly overrule Meek or Wolman, the only instructional materials the government can supply to religious schools are secular textbooks, which have received the high court's approval because they cannot be easily diverted to religious uses.

However, the appeals court called the Supreme Court's often-conflicting precedents on government aid for religious schools a "vast, perplexing desert." During oral arguments last week, the justices struggled to find an oasis of common ground.

"It's a hard line to draw" between permissible and impermissible forms of aid, Justice John Paul Stevens said.

If the government can provide computers to religious schools, he asked Mr. McConnell, couldn't it also provide desks?

"Is that where your position will take us?" Justice Stevens said.

Mr. McConnell resisted that question and other hypothetical issues, such as whether the government could, for example, erect school buildings for churches on the same basis that it built public schools.

"As the government takes on more and more operations [of the religious school], the entanglement [with religion] problem grows exponentially,'' Mr. McConnell said.

Barbara D. Underwood, a deputy solicitor general supporting the Title VI program on behalf of the Clinton administration, argued that the program "does not directly support religious instruction."

Several justices quizzed her on the program's provision that aid to religious schools must supplement, and not supplant, the school's resources.

The rule "helps ensure that the government aid does not go to the religious mission of the school," Ms. Underwood said.

Computers and Education

In recent cases on government aid for students in religious schools, the trend on the high court has been to find such aid constitutional.

A majority of justices, for example, voted to allow a sign-language interpreter who was paid with public funds to assist a deaf student attending a religious high school; the court also permitted school district Title I instructors to provide services on the grounds of religious schools.

Justice David H. Souter, who has been in the minority on those decisions, said during last week's arguments that the court had been "groping in the direction of identifying forms of aid that run the risk of helping ... inculcate religious beliefs."

Justice Antonin Scalia, who has voted to uphold greater government aid for religious schools, acknowledged that the subject has been difficult for the court. "Deciding what is supplementing and what is supplanting [a religious school's resources] on an item-by-item basis is so difficult," he said.

Much of the court's attention during the arguments focused on the role of computers in education.

Mr. McConnell, a University of Utah law professor who has written influential scholarly articles advocating greater accommodation of government aid to religion, said that striking down the Title VI aid would "deny basic educational tools of the 20th century to children because their parents have chosen religious schools."

In one exchange, Justice Stephen G. Breyer suggested that "computers are today what textbooks were 30 years ago."

Mr. Boothby, a Washington lawyer who has represented the plaintiffs in the Louisiana lawsuit since its inception, replied that there was an important distinction for constitutional purposes.

Unlike secular textbooks provided to religious schools, "a computer is certainly divertable to religious purposes," the lawyer said. "It can be used for almost any purpose."

But Justice Scalia said it was wrong to assume that religious school educators are inclined to break the rules of the federal aid program and divert computers to religious uses.

"I'm not willing to assume that there is any overwhelming evidence that religious schools are flouting the law," he said.

The swing votes on recent religious-school-aid cases have been Justices Sandra Day O'Connor and Anthony M. Kennedy, both of whom had relatively little to say during last week's arguments. The case is expected to be decided by early next summer.

Vol. 19, Issue 15, Pages 1, 20

Published in Print: December 8, 1999, as High Court Hears Arguments Over Aid to Religious Schools
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