Georgia attorney general: Giving state funds to religious groups is improper

Thursday, May 25, 2000

Georgia’s attorney general has told state education officials that providing funds to religious groups to conduct after-school reading programs subverts the separation of church and state.

In an opinion issued late last week, Georgia Attorney General Thurbert E. Baker described the state education department’s Reading Challenge grants to religious organizations as constitutionally suspect. In 1998, the Georgia Board of Education allocated $10 million for the Reading Challenge program.

The program’s funds go to businesses and nonprofits, including churches, to operate the after-school reading programs. Churches in Clayton, Cobb, Dekalb, Fulton, Gwinnett and Polk counties have received grants to run the reading programs. Early this year new members of the state Board of Education questioned the constitutionality of funneling tax dollars to churches and asked Baker to issue an opinion on the situation.

Baker concluded that the grants subvert a provision in the Georgia Constitution that states, “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, cult, or religious denomination or of any sectarian institution.”

Baker’s opinion, which was written by Senior Assistant Attorney General Kathryn L. Allen, noted that in 1988 the state’s attorney general concluded that a similar program operated by a county was unconstitutional. That opinion claimed that any payments from the state to sectarian institutions would undermine the state’s “constitutional prohibition against taking money from the public treasury in aid of a religious organization,” Allen wrote.

“When the State selects a sectarian institution of learning, and commits to such institution its wards, for whose maintenance and education it pays, it gives the most substantial aid to such an institution,” Allen continued. “Based upon my review of the law in Georgia and in other states with a similar constitutional prohibition, it appears to be an inescapable conclusion that the State may not provide a grant or enter into a contract for after-school care with a sectarian organization.”

In 1997, the U.S. Supreme Court ruled in Agostini v. Felton that a federal law allowing public school teachers to offer non-religious education programs in religious schools did not violate the U.S. Constitution’s principle of separation of church and state.

Justice Sandra Day O’Connor, writing for the 5-4 majority, said the high court had on numerous occasions “sustained programs that provided aid to all eligible children regardless of where they attended school.”

Linda C. Schrenko, Georgia’s state superintendent, and The Atlanta Journal and Constitution have both criticized Baker’s opinion as unwise and improper.

“It’s a bad decision,” the editors of the Journal and Constitution opined last week. “This program, Reading Challenge, has not a hint of religion tied to it. It’s just an after-school tutorial housed in some private settings and taught by state-certified public school teachers.”

The newspaper also noted that both presidential candidates, Democrat Al Gore and Republican George W. Bush, have championed federal and local laws that allow religious groups to compete for tax dollars to operate a host of social service programs.

Schrenko said she was “very disappointed” with Baker’s opinion and that it might be proper for the Legislature and the people to consider changing the Georgia Constitution.

Schrenko said that unless the Legislature passed a law permitting religious groups to participate in the Reading Challenge and other similar programs or approved an amendment to the state Constitution, churches would now be barred from operating the reading programs.

“What this decision means to parents across Georgia is that their children might not get reading tutoring,” Schrenko said. “In some counties the school districts simply choose not to run after-school reading programs and in those districts, if the church or the YMCA or YWCA does not do it, then there will be no services.”