Court OKs Neutral Aid to Religious Schools

Court OKs Neutral Aid to Religious Schools
August 1, 2000

George A. Clowes

George Clowes is a Heartland senior fellow addressing education policy. He served as founding... (read full bio)



In its most important ruling on school choice to date, the U.S. Supreme Court on June 28 handed down a splintered 6-3 ruling in the Mitchell v. Helms case that not only laid out the conditions under which direct financial aid may be given to religious schools, but also made it clear that indirect financial aid to religious schools--i.e., vouchers--would present fewer constitutional problems.

Although the three dissenting Justices could not abide the idea of any government money of any kind finding its way into what they called "pervasively sectarian" schools, the majority endorsed the idea of government treating all schools, all parents, and all children equally, or neutrally. Federal aid may be provided to parochial schools, the Court determined, when the aid is distributed on a neutral per-pupil basis to students in all the districts' schools, both public and private, secular and religious.

The ruling "signals the end of an era during which a legacy of bigotry infected the Court's decisions in religious liberty cases," said Kevin J. Hasson, president of the Becket Fund for Religious Liberty. "Six justices agreed to a view of aid that prepares the way for school choice plans across the country, even where participants are free to attend religiously affiliated schools, be they yeshivas, parochial schools, or something else."

"This is the sixth consecutive U.S. Supreme Court decision sustaining aid to students in religious schools or activities," said Clint Bolick, litigation director for the Institute for Justice, which has defended every school choice program in the country. "School choice will make it a lucky seven."

The decision upholds the provision of taxpayer-funded instructional equipment and materials such as computers and library books to students attending religious schools. The case involved funds distributed under the 1965 Elementary and Secondary Education Act, which allocates money for the equipment to each public school district based on the total number of students in the district, not just those in public schools. Chapter 2 (now Title VI) of ESEA requires each school district to share the funds with students in parochial and private schools.

Equipment and instructional materials are purchased by the local school districts, and private school officials are required to promise in writing that the shared resources are used only for "secular, neutral and nonideological services." Local school districts retain ownership of the equipment and materials while they are on loan to the private schools.

"Because a simple headcount determines a school's share of assistance, many private schools routinely participate in Title VI, making it probably the most widely used federal assistance program within the private school community," said Joe McTighe, executive director of the Council for American Private Education.

The Mitchell v. Helms case arose when a group of taxpayers in Jefferson Parish, Louisiana claimed using taxpayer funds in religious schools violated the First Amendment because the funds helped the school spread a religious message. A federal appeals court, relying on U.S. Supreme Court rulings from the late 1970s, agreed with the taxpayers and struck down the aid program. Parents whose children attended the religious schools appealed to the U.S. Supreme Court, arguing the aid does not violate the Establishment Clause of the First Amendment as long as the aid to religious schools is distributed on a neutral basis to all schools.

The U.S. Supreme Court agreed with the parents, reversing not only the appeals court ruling but also its own rulings in the two 1970s cases, which the high court said were too rigid. The Court applied its traditional three-pronged Lemon test for determining whether a government program amounts to the establishment of a religion, but applied the test using the framework of its 1997 decision in Agostini v. Felton.

"Chapter 2 does not result in government indoctrination, because it determines eligibility for aid neutrally, allocates that aid based on private choices of the parents of schoolchildren, and does not provide aid that has an impermissible content," wrote Justice Clarence Thomas, who announced the judgement and delivered an opinion.

The amount of aid a school receives is determined not by religion but by the private choices of parents in placing their children in different schools, noted Thomas. Although the Court at one time was concerned about whether a school was secular, "pervasively sectarian," or somewhere in between, such concern was "offensive," according to Thomas. It dated back to the 1870s when there was "pervasive hostility to the Catholic Church and to Catholics in general and it was an open secret that 'sectarian' was code for 'Catholic.'"

There is nothing in the Establishment Clause that requires the exclusion of pervasively sectarian schools from otherwise permissible aid programs, declared Thomas. The doctrine of exclusion, "born of bigotry, should be buried now," he wrote.

"If a program offers permissible aid to the religious (including the pervasively sectarian), the areligious, and the irreligious, it is a mystery which view of religion the government has established, and thus a mystery what the constitutional violation would be," argued Thomas. "The pervasively sectarian recipient has not received any special favor, and it is most bizarre that the Court would, as the dissent seemingly does, reserve special hostility for those who take their religion seriously, who think that their religion should affect the whole of their lives, or who make the mistake of being effective in transmitting their views to children."

Thomas also pointed out that by offering aid to all schools for a secular purpose, "any aid going to a religious recipient only has the effect of furthering that secular purpose. The government, in crafting such an aid program, has had to conclude that a given level of aid is necessary to further that purpose among secular recipients and has provided no more than that same level to religious recipients."

Three justices--Chief Justice William H. Rehnquist and Justices Antonin Scalia and Anthony M. Kennedy--joined Thomas in saying they were willing to allow a free flow of taxpayer funds to parochial schools. If the money is for education, they argued, it should not matter whether the school is secular or religious.

Justice Sandra Day O'Connor, who did not agree with all of what Thomas wrote, issued a concurring opinion that was joined by Justice Stephen G. Breyer. O'Connor said she could approve the loaned computers because none of the money "reaches the coffers of religious schools." Also, the equipment isn't likely to be used to promote the teaching of religion.

Basing her decision on the Court's 1997 ruling in Agostini v. Felton, she said the federal aid program "does not have the impermissible effect of advancing religion." But she warned that the four-Justice plurality opinion "foreshadows the approval of direct monetary subsidies to religious organizations, even when they use the money to advance their religious objectives."

The three remaining Justices--David H. Souter, John Paul Stephens, and Ruth Bader Ginsburg--disagreed even with O'Connor's opinion. Their dissent, penned by Souter, argued that the even-handed distribution of public aid to different types of schools shouldn't be the only constitutional test of the program. He raised concerns about "massive" funding of religious schools and about the commingling of religion with other instruction in "pervasively sectarian" schools, for which he offered Catholic schools as the model.

"The bottom line is that the aid is for education, not religion," countered Bolick. "This ruling is a victory for common sense and for educational opportunity."

In an amicus brief submitted to the Court, the Institute argued the issue in the Mitchell case was more difficult than school choice because aid was transmitted directly to religious schools.

"With school choice, funds are transmitted to parents who then choose to use them at religious or nonreligious schools," explained Matthew Berry, staff attorney for the Institute for Justice. "Under the Court's reasoning, school choice should present an easier issue."


George A. Clowes is managing editor of School Reform News.


For more information . . .

The plurality, concurring, and dissenting opinions in Mitchell v. Helms are available on the Internet at http://supct.law.cornell.edu/supct/html/98-1648.ZS.html in both HTML and Adobe Acrobat’s PDF file formats, as is a syllabus of the decision.

George A. Clowes

George Clowes is a Heartland senior fellow addressing education policy. He served as founding... (read full bio)