Federal court offers mixed ruling on government aid to religious schools

Thursday, August 20, 1998

The 5th U.S. Circuit Court of Appeals has struck down a federal law that aids private religious schools but upheld two Louisiana laws that permit some entanglement between church and state.

At issue for the federal appeals court was a federal law permitting states to offer certain educational materials to religious schools, and Louisiana state laws providing public transportation to religious schools and permitting state teachers to enter religious schools to teach specific courses.

The decision was issued in a case brought more than 10 years ago by parents of Louisiana public school students who claimed the state impermissibly used public money to benefit religious schools.

Judge John M. Duhe, writing for the majority in Helms v. Picard, said the suit required the appeals court to “find our way in the vast, perplexing desert of Establishment Clause jurisprudence.” In doing so, the appeals court invalidated a 1965 federal law and upheld two state laws.

The federal law, known as Chapter 2 of the Elementary and Secondary Education Act, permitted states, using federal funds, to create programs to provide instructional and educational materials such as library books, computer software, maps and films to all schools, including religious ones.

Under Chapter 2, such educational services and equipment had to be provided by a state agency and/or contractor independent of the religious schools. In addition, a 1984 Louisiana law said the federally funded materials were not to be used to promote religion. Despite those safeguards and a 9th U.S. Circuit Court of Appeals ruling several years ago that “under Chapter 2, the loaning of neutral, secular equipment and instructional materials to parochial schools does not have the primary or principal effect of advancing religion,” Duhe concluded the federal program as applied in Louisiana did run afoul of the separation of church and state.

According to Duhe, the 9th Circuit misinterpreted a line of Supreme Court cases that upheld lending of textbooks as a permissible federal aid to religious schools. Duhe said that the high court had never ruled that all instructional and educational materials loaned or provided to religious schools were necessarily constitutional. Instead Duhe found that the Chapter 2 materials unconstitutionally advanced religion.

Duhe cited the high court’s 1997 ruling in Agostini v. Felton as proof that only certain types of government aid to religion were allowed. In Agostini, the high court ruled that New York public school teachers could enter religious schools to provide students with remedial training.

Duhe’s court, however, ruled that the Agostini ruling did not mean the federal aid in Chapter 2 was a constitutional benefit to religion. So it struck down the aid in Louisiana. The appeals court ruling does not affect Chapter 2 federal aid in any other state. The other states in the 5th Circuit – Texas and Mississippi – could be affected by the ruling, however, if Chapter 2 aid is challenged in those states.

“By prohibiting the loaning of such materials, our decree encompasses such items as filmstrip projectors, overhead projectors, television sets, motion picture projectors, video cassette recorders, video camcorders, computers, printers, phonographs, slide projectors,” Duhe wrote. “Our decree also necessarily prohibits the furnishing of library books by the State.”

The 5th Circuit, however, denied the parents’ claims that two Louisiana laws, which provided some benefit to religious schools, also violated the separation of church and state.

First, the appeals court upheld the state’s special education program permitting state-paid instructors to enter religious schools to administer “publicly supported education to every exceptional child who is a resident therein.” The state law defines “special education” as “any program of instruction within the preschool, elementary, and secondary school structures of the state, specifically designed to provide for different learning styles of exceptional children.”

The U.S. District Court for the Eastern District of Louisiana invalidated the law in 1994, ruling that it was “compelled to find that the special education statute, which allows state-paid teachers to teach on the premises of pervasively sectarian institutions, violates the Establishment Clause.”

The 5th Circuit overturned the district court’s ruling, Duhe wrote, primarily because of the “Supreme Court’s most recent sermon in this area, Agostini v. Felton, which was not available to the district court.”

Supreme Court Justice Sandra Day O’Connor, writing for the Agostini majority, acknowledged that the high court had dumped the presumption that the placement of public school teachers on religious school grounds inevitably violated the separation of church and state.

Moreover, O’Connor wrote: “Not all entanglements, of course, have the effect of advancing or inhibiting religion. Interaction between church and state is inevitable, and we have always tolerated some level of involvement between the two. Entanglement must be excessive before it runs afoul of the Establishment Clause.”

Applying Agostini‘s strictures, the 5th Circuit ruled Louisiana’s special education program did not violate the establishment clause because it was enacted for a secular purpose – to provide special training for certain students in Louisiana, regardless of where they go to school – and because it did not advance religion.

Duhe wrote for the appeals court that “the Louisiana special education program selects its recipients based solely on the exceptionality of a particular student and on the number of exceptional students enrolled in a given school district. The fact that a particular exceptional student is enrolled in a particular school, be it sectarian or nonsectarian, results from a parental and not a governmental decision. Thus, any aid flowing incidentally to a sectarian school occurs only as a result of the genuinely independent and private choices of those students’ parents.”

The appeals court also saved a second Louisiana law that allowed students to be transported on public school buses to religious schools. In upholding the state law, the appeals court relied on the U.S. Supreme Court’s 1947 decision in Everson v. Board of Education. The high court upheld a New Jersey program that reimbursed parents for the cost of transporting their children to and from school, whether public or parochial.

Officials with the U.S. Justice Department have not said whether the department would appeal the 5th Circuit’s ruling on Chapter 2. Lee Boothby, the Louisiana parents’ attorney, however, told The Associated Press that he was sure the department would appeal the Chapter 2 ruling.