High court agrees to review public aid to parochial schools

Tuesday, June 15, 1999

The case of Mitchell v. Helms, which the Supreme Court agreed yesterday to review next fall, has an Internet flair to it. But in most respects, it resembles many of the battles over “parochaid” that the Supreme Court has struggled with over the last several decades.

It tests whether a longstanding federal program that allows local public school districts to loan classroom equipment, including computers, to parochial and other private schools, violates the First Amendment’s prohibition against government establishment of religion.

The 5th U.S. Circuit Court of Appeals struck down the program, asserting that because of the establishment clause, “what the government is attempting to accomplish … it may not do.”

In 1968, in Board of Education v. Allen, the court had upheld a program that lent textbooks to parochial schools. But in two subsequent rulings, which were invoked by the 5th Circuit in its ruling, the high court struck down programs that lent other kinds of instructional materials to parochial schools, drawing a line that was difficult to define.

Those precedents and others have produced what the 5th Circuit panel described as a “vast, perplexing desert of establishment clause jurisprudence” that the Supreme Court will, if it can, clean up.

Which is why Barry Lynn of Americans United for Separation of Church and State is describing Mitchell v. Helms as the most important church-state case to come before the court in two decades.

The Clinton administration also views the case as important, in part because of the pending $800 million plan to hook up every American classroom — public and parochial — to the Internet. If the high court upholds the decision of 5th Circuit that struck down the equipment loan program known as Title VI, then that Internet plan is in jeopardy.

“Computers don’t teach religion,” said Patricia Dean, lawyer for the Louisiana school officials who were sued for participating in the loan program by Jefferson Parish parents who wanted the program stopped. She says Title VI is a religion-neutral program that aspires to improve education for all students, no matter what school they attend.

But Lynn says computers and similar equipment can be used to teach religion, and certainly advance the parochial school’s mission, in violation of the First Amendment. Textbooks can be reviewed for their religious content, but computers and the Internet are changeable media that can be used just as easily to reach the Vatican’s Web site as to reach the U.S. Congress.

Predicting the outcome of Mitchell v. Helms is difficult, but the case comes two years after the decision in Agostini v. Felton, in which the majority of the court shed some of its fears about involving public funds in parochial school education. Whether or not it takes the next step and permits a program that provides taxpayer-funded equipment to parochial schools for “unverifiable” non-religious use is uncertain. Justice Sandra Day O’Connor may be the determining vote.

If the court does reverse the 5th Circuit’s decision and strikes down Title VI, some experts say it will only be a short leap to approving voucher programs that subsidize parochial school tuition by giving funds to parents of kids attending those schools. With an increasing pace of rulings in lower courts on that subject — programs struck down in Ohio, Maine and Vermont in just the last month — guidance from the Supreme Court on the voucher issue will be widely anticipated as well.