School Choice & Charters

Church-State Rulings Cut Both Ways

By Mark Walsh — July 12, 2000 7 min read

Capping off a busy year of legal masonry, the U.S. Supreme Court added some new bricks to the wall of separation between church and state while lowering it elsewhere.

The court struck down student-led prayers at football games, but it upheld government aid to religious schools in the form of computers and library books.

The rulings it handed down as the 1999-2000 term ended last month veered in opposite directions on the church-state spectrum, but they were internally consistent with the court’s trends.

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The justices have rejected various forms of prayer in public schools since the 1960s. But they have moved for nearly two decades to authorize more forms of public aid for religious schools.

The court’s 6-3 ruling overturning football- game prayers in Santa Fe Independent School District v. Doe (Case No. 99-62) may cause more commotion in the short term. Already, some school administrators have vowed to ignore the ruling, while prayer advocates are weighing new tactics for instituting student-led prayers at school that might yet pass constitutional muster.

But many legal analysts believe the 6-3 decision in Mitchell v. Helms (No. 98-1648) will turn out to be the more far-reaching decision of the two.

“I think Helms represents a greater change in the law than Santa Fe,” said Steven K. Green, the legal director of Americans United for Separation of Church and State. “Helms is a significant move away from the high-water cases [for church-state separation] of the 1970s.”

The Washington-based advocacy organization filed friend-of-the-court briefs in both cases, arguing against student-led prayers at football games and against providing federal Chapter 2 aid in the form of computers and library books to religious schools.

Douglas W. Kmiec, a conservative constitutional scholar at the Pepperdine University law school who writes frequently on church-state issues, agreed with Mr. Green about the importance of Helms.

“It is a very significant doctrinal shift, or at least the confirmation of a doctrinal shift” in church-state law, Mr. Kmiec said.

In the June 28 Helms decision, six justices agreed that the provision of computers and library books to religious schools under the federal Chapter 2 program, now known as Title VI, should be upheld. But no opinion commanded a majority of the court.

Justice Clarence Thomas wrote a plurality opinion that not only upheld Chapter 2 aid, but also would approve of any government aid to religious schools that was offered on a neutral basis and was secular in content. His opinion was joined by Chief Justice William H. Rehnquist and Justices Antonin Scalia and Anthony M. Kennedy.

Justices Sandra Day O’Connor and Stephen G. Breyer concurred in the outcome of the case, but expressed worries that Justice Thomas’ view would go too far in permitting aid to religious schools.

“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, who is often the swing vote on church-state issues, wrote in her opinion. Justice Breyer’s decision to join the concurrence surprised some Supreme Court observers, who had expected him to fall on the side of stricter church-state separation.

Justice David H. Souter wrote a lengthy dissent outlining his view that the First Amendment’s prohibition against a government establishment of religion requires that religious schools receive no significant government aid. He was joined by Justices John Paul Stevens and Ruth Bader Ginsburg.

Voucher Clues

The Helms decision was immediately examined for clues on how it might affect the debate over publicly financed tuition vouchers that students can use to attend religious schools.

It seems clear that Justice Thomas’ plurality view, with just one more vote, would uphold not only vouchers, but perhaps also additional new forms of aid to religious schools. But legal analysts were reading Justice O’Connor’s concurrence with magnifying glasses.

Mr. Kmiec said voucher proponents are understandably happy to find in Justice O’Connor’s opinion approving references to “true private-choice programs” and other language they embrace. But the opinion also expresses doubts about government aid that reaches the “coffers” of religious schools.

“What is unresolved in this case is whether she is satisfied that the parental direction [in exercising a school voucher] avoids her concern about augmenting the religious school treasury,” Mr. Kmiec said.

Putting aside vouchers, the Helms decision could lead to some significant new attempts by government to aid religious schools. Even with the disagreements in the opinions by Justices Thomas and O’Connor, the six justices agreed to overrule key holdings in two 1970s Supreme Court precedents that barred the government provision of maps, slide projectors, and other equipment to religious schools. Those decisions were the 1975 case of Meek v. Pittenger and the 1977 case of Wolman v. Walter.

“Now, almost any kind of equipment and materials will get a green light,” Mr. Green of Americans United said. “I don’t want to give suggestions, but even some types of building construction program might be upheld if there was some assurance that the building would only be used for secular activities. I could see a parochial school saying, ‘Build us a gym.’ ”

Student-Led Prayer

It was a different 6-3 vote of the justices that struck down the student-led prayer policy of the Santa Fe, Texas, school district on June 19. The 4,400-student district had authorized “invocations” to be delivered by an elected student speaker after the student body voted on whether to have such messages.

Such a mechanism has been popular in some parts of the country, particularly in the South, for student-led prayers at graduation ceremonies and other school events since the Supreme Court ruled against clergy-led graduation prayers in the 1992 decision in Lee v. Weisman.

In the majority opinion in Santa Fe, Justice Stevens said an “objective” high school student would perceive the “inevitable pregame prayer as stamped with her school’s seal of approval.” He was joined by Justices O’Connor, Kennedy, Souter, Ginsburg, and Breyer.

Chief Justice Rehnquist said in dissent that the majority opinion “bristles with hostility to all things religious in public life.” He was joined by Justices Scalia and Thomas.

Jay A. Sekulow, who argued the case for the Santa Fe district before the high court, said the ruling violated the free-speech rights of student speakers. Under the ruling, student-led prayers at graduation ceremonies would be unlikely to be upheld, said Mr. Sekulow, who is also the chief counsel of the American Center for Law and Justice, a legal organization founded by the religious broadcaster Pat Robertson.

Charles C. Haynes, a senior scholar at the First Amendment Center of the Freedom Forum, an Arlington, Va.-based foundation that promotes religious freedom and other rights, said the court got it right on the prayer case because “fundamental rights cannot be up for a majority vote.”

“The unfortunate thing is that schools and communities are still fighting about these symbolic religious practices rather than focusing on what can be done to foster religious expression,” Mr. Haynes said. He said he was happy that Justice Stevens at least mentioned that students can voluntarily pray “at any time before, during, or after the school day.”

“But the court didn’t say enough on that,” Mr. Haynes said. “I wish the majority had said more. But most people don’t read the decisions anyway. They read the headlines.”

Headlines about church-state disputes in the schools are not likely to be eliminated by the latest Supreme Court rulings.

Evolution of Thought

Some states are moving to authorize displaying the Ten Commandments in public schools, despite a high court ruling that struck down that practice in 1980. Virginia is being sued over its new law requiring a moment of silence at the start of every school day, and the Colorado state board of education last week voted to encourage public schools to post the motto “In God We Trust.”

When the justices return next fall, they will decide whether to take up another case on student-led prayer, this one involving graduation ceremonies in the Duval County, Fla., school district. The U.S. Court of Appeals for the 11th Circuit, in Atlanta, upheld the district’s policy allowing students to vote on whether a senior may deliver a prayer at graduation. That makes it likely the Supreme Court would set aside the lower court’s ruling and send the case back for a new look based on the Santa Fe decision.

Meanwhile, the justices on June 19 declined to hear a Louisiana school district’s appeal of a ruling striking down its policy requiring that a disclaimer be presented to students before lessons about evolution. The Tangipahoa Parish district’s disclaimer said evolution lessons were “not intended to influence or dissuade the biblical version of creation or any other concept.”

Three justices said they would have granted the district’s appeal in Tangipahoa Parish Board of Education v. Freiler (No. 99-1625). Justice Scalia, joined by the chief justice and Justice Thomas, said the disclaimer did not advance religion but was meant to promote “freedom of thought.”

A version of this article appeared in the July 12, 2000 edition of Education Week as Church-State Rulings Cut Both Ways


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